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January 9, 1957

UNITED STATES of America, Plaintiff,
Sylvanus CONQUEST, doing business as Connie's Express, and Westmoreland Metal Mfg. Co., Defendants

The opinion of the court was delivered by: LORD

The defendant, Sylvanus Conquest, doing business as Connie's Express, was charged in 13 counts of an information with operating as a contract carrier of property by motor vehicle in interstate commerce without a permit issued by the Interstate Commerce Commission authorizing him to engage in such business -- all in violation of Title 49 U.S.C.A. § 309(a) *fn1" and § 322(a). *fn2"

Westmoreland Metal Mfg. Co., a corporation, was charged with aiding and abetting the unlawful operation of defendant Conquest. Defendant Westmoreland entered a plea of nolo contendere, and at the same time, defendant Conquest entered a plea of not guilty. At the trial before this Court on September 18, 1956, the defendant Conquest offered no evidence. A jury verdict of guilty on all 13 counts resulted, and defendant has duly moved for acquittal notwithstanding the verdict rendered -- which motion is now before this Court.

 In support of his motion, defendant asserts three ground: (1) That the evidence is insufficient to support the verdict; (2) That the Government did not prove defendant to have been a contract carrier; and (3) That the evidence introduced by the Government tended to show the defendant's status to have been that of a common carrier.

 The Court is of opinion that the motion should be denied for reasons to appear in the following discussion.

 1. Sufficiency of Evidence

 To prove that the defendant, Sylvanus Conquest, was the carrier in question, the government called as its first witness one John F. Keane, Secretary of the shipper, Westmoreland Metal Mfg. Co. This witness testified that he had brought with him, in compliance with the government's subpoena, certain records of his company which were made in the normal course of business and kept in his custody and control.

 In response to requests and questions by the government, designed to prove Count 1 of the information, the witness Keane produced from his aforesaid records a series of documents. These were termed shipping orders by the witness, but described by him as being copies of the original bills of lading. The first indicated that the goods specified in Count 1 had been delivered to Atlantic Furniture Company of Baltimore, by a carrier whom he 'presumed to be Taylor's', since the name Taylors appeared on the top of the document. Other similar writings likewise indicated deliveries of the several shipments charged in the first count of the information. Although the signatures on the documents were illegible, the witness testified that the memoranda copies indicated that the freight company had delivered the goods to the consignee, said copies having been returned to the shipper's files as indication of proper delivery of the merchandise.

 Keane next produced the bill submitted by the carrier requesting payment for the aforesaid shipments, which bill was duly introduced into evidence. There was no name on the bill to indicate who had submitted it, but there was physically attached to the bill the stub of the check issued in payment thereof. Keane testified that it was the shipper's normal business procedure to attach to the bill a check stub, which was in fact a duplicate (or voucher) of the check issued in payment for the submitted bills. In response to questions by the government designed to ascertain whether the bill was a request for payment for the shipments described in the exhibits, the witness testified as to the matching up of the name of the consignee, the nature and number of pieces shipped as shown on the shipping documents, and the bill. The original check issued in payment of the amount of the bill was then produced. It named the defendant, Sylvanus Conquest, as payee, and showed his endorsement on the reverse side.

 It was stipulated by counsel that Keane could produce the same type of evidence to prove the shipments in all counts of the information with the exception of Count 11, which was proved separately. The major difference between the proof of the shipment in that count and the others was that in Count 11 the bill of lading listed Sylvanus Conquest as the carrier.

 The second and last witness was Martin E. Foley, the District Supervisor, Bureau of Motor Carriers, Interstate Commerce Commission. He testified that he had made an investigation of the transactions in question as part of his regular duties; that in the course of such investigation he obtained copies of bills of lading from the shipper, Westmoreland, moreland, copies of statements or invoices allegedly prepared by defendant when he billed the shipper for the transportation performed, and copies of check stubs (vouchers) and cancelled checks in payment of those charges. He identified the exhibits (being the bills of lading or shipping orders, invoices, stub-vouchers, and cancelled checks heretofore described) as being the records obtained in this case by his investigation. He stated that the investigation disclosed 'records proving the transportation of the property as described in the information in every instance.'

 The uncontradicted testimony of Mr. Foley, based on a search of the District Office, Motor Carriers Division, Interstate Commerce Commission, was that defendant had no operating authority in the form of permit or certificate from the Interstate Commerce Commission which would authorize his transportation of any property in interstate commerce.

 That the shipments were made in interstate commerce does not appear to be seriously controverted. The contention of defendant, as to all counts except number 11, seems rather to be that since the shipping orders (bills of lading) bore the name Taylors, and since the invoices were anonymous, the government's case cannot support the verdict.

 Defendant also argues that the government's case is insufficient in that it rests exclusively upon business records, and is entirely circumstantial. As to the alleged weakness of business records, he cites United States v. Kessler, D.C.E.D.Pa.1945, 63 F.Supp. 964, 965. In that case the defendant was convicted upon an indictment charging him with stealing from a truck two cases of cigars constituting stituting an interstate shipment. Early in his opinion, Chief Judge Kirkpatrick states that 'The government's case depended entirely upon circumstantial evidence.'

 One element of proof was delivery and receipt of the goods, regarding which the court said at page 967:

 'The bills of lading were properly in evidence, not because the defendant's signing them constituted an admission on his part of the receipt of the goods, but because they were made as a memorandum or record of a transaction in ...

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