UNITED STATES v. A & P TRUCKING CO.

Argument of Ralph S. Spritzer

Chief Justice Earl Warren: Number 32, the United States of America, appellant, versus A & P Trucking Company and Hopla Trucking Company.

Mr. Spritzer, you may proceed.

Mr. Ralph S. Spritzer: Mr. Chief Justice, Your Honors.

These two companion cases involve two motor carriers, both doing business as partnerships, both of them sued as partnerships.

Both were charged with misdemeanors in that they had violated certain regulations of the Interstate Commerce Commission.

The informations were dismissed in both cases on the same day by the same judge on the ground, and this is a quotation from their respective orders, “On the ground that a partnership as an entity, is not subject to liability under the Section set forth.”

Since that holding of Court involved a determination as to the scope or coverage of the statute this case is hereon direct appeal.

There is no dispute between the parties, let me say at the outset, that the informations here run only against partnership entity.

No partners were charged as individuals with that.

Thus the ultimate question, a question of course on which the Court below ruled against the Government, is whether the partnership's defendant charged as such, could be penalized under the regulatory statutes involved.

The statutes under which they were charged are two in number.

And the first of these is Section 222 (a) of the Interstate Commerce Act which is set forth at page two of the Government's brief and that as, Your Honors will note, is the comprehensive misdemeanor Section of the motor carrier part of the Interstate Commerce Act.

It provides in substance that any person knowingly violating any provision of that statute or any rule or regulation promulgated under the motor carrier provisions, or any condition of operating authority, is subject to fine as prescribed, the fines under that Section running from one through $500.

222 (a) should be read in conjunction with 203 (a) printed immediately below it in our brief, which is the definition Section appearing of course in the same part of the Interstate Commerce Act and that defines person to mean any individual, firm, co-partnership, corporation, company, association, et cetera.

The other statute which is involved in these informations is 18 U.S.C. 835 in provision of the Criminal Code, which relates exclusively to the subject of carriage of explosives or other dangerous articles and that is set out at page 4 in the Government's brief.

It provides, as Your Honors will note, that the commission shall promulgate explosives regulations, which shall be binding upon all common carriers.

It then provides in the penalty Section that whoever knowingly violates is subject to fine or imprisonment.

In a case such as this where no death or bodily injury is involved, the fine maybe as much as a thousand dollars or imprisonment for as long as one year.

There is a definition Section to be examined in connection with that statute.

There is the general definition Section of the United States Code in 1 U.S.C. 1.

It says that the word, “whoever” includes corporations, companies, associations, firms, partnerships, and so forth, unless the context of the particular Act indicates otherwise.

This statute to which I've last referred, 18 U.S.C 835, is the same statute, Your Honors, will recall, which was involved in the case of United States against American Freightways which was here in the 1956 term.

In that case, a District Court had similarly dismissed an information in that instance laid exclusively under 18 U.S.C. 835 on the ground adopted here by the District Court in New Jersey, that the partnership was not liable.

The dismissal in that case was affirmed by this Court by an equally divided Court.

So, the issue under 18 U.S.C. 835, as to the amenability of the partnership entity is one as to which this Court has not definitively spoken.

So far as the other statute which is here today is concerned, 222, that issue has not been before this Court at all.

I'd like to attempt to deal with the problem raised by this case, if I may, in three steps.

First, as we see it, there is the question which I think need not to detain one long whether Congress has the power, the broad power, to treat a partnership as a distinct entity to personify them for purposes of a particular regulatory statute.

The second question, assuming there is that power is whether Congress in enacting the statues here involved, had the requisite purpose and has adequately expressed it.

And third, there is the question which is stressed by appellees, whether the fact that the statutes here involved call for proof of knowledge or of willfulness creates an obstacle to the result of the Government is urging, namely, holding the partnership entity perhaps on the basis of the acts of its agents.

Justice William O. Douglas: Failure to (Inaudible)

Mr. Ralph S. Spritzer: I'm sorry, I didn't hear you on this question.

Justice William O. Douglas: What was your reservation?

You just said, I didn't --

Mr. Ralph S. Spritzer: I said, appellees draw comfort in arguing that a partnership is not amenable to this statute from the fact -- to these statutes from the facts that the statute used -- statute used the words, “knowingly” and “willfully”.

Now, our position as to that --

Justice William O. Douglas: And no -- no charge in these cases that the partners had -- were culpable?

Mr. Ralph S. Spritzer: No.

We did not allege that the individual partners personally knew.

In other words, our theory is, that when we charge a partnership as an entity, then we can make out the offense in the same way that we could when a corporation is charged as to the defendant namely, by proving the knowing, conscious violation of anybody, agent or employee of the company acting in the course of the company's business.

Justice William O. Douglas: You go -- you go all out for the -- for the entity theory in that that has been incorporated in these statutes?

Mr. Ralph S. Spritzer: That's right.

Justice John M. Harlan: And then limit I gather the penalty to apply.

Mr. Ralph S. Spritzer: Necessarily limited because we say to the Court, a partnership organization, a partnership entity can't be put in jail any more than a corporate personnel.

In other words, we can say the only penalty that is applicable when the business organization as such is the defendant is defined.

Now, of course, Section 222 only provides for a fine and the imprisonment aspect is limited to the other statute, the explosives statute.

Justice Felix Frankfurter: So that, from a (Inaudible) legally speaking, there would be no incongruity.

I'm saying legally.

Not exactly for policy or -- but legally speaking, there would be no incongruity in saying in Section 2 or 3, Congress in effect said, they adopt the entity theory for Section 222, but Congress didn't do it, but 18-835.

Mr. Ralph S. Spritzer: Well, I -- I would --

Justice Felix Frankfurter: Legally speaking.

I'm not -- I'm not saying argumentative the -- the implication, isn't that right?

Mr. Ralph S. Spritzer: Well, I think it would depend on Congress --

Justice Felix Frankfurter: Exactly.

But --

Mr. Ralph S. Spritzer: So, I don't think there would be any incongruity.

Our argument --

Justice Felix Frankfurter: What you're saying is that when Congress does define a person to include a partnership, that is mitigating your act against the Government's perspective (Inaudible) the opposite the entity theory.

Mr. Ralph S. Spritzer: Yes.

It permits us to proceed in the same way with what ends in corporate offense.

Justice William J. Brennan: The same, Mr. Spritzer, the 222 was not before us in the Freightways case --

Mr. Ralph S. Spritzer: That is correct.

The information in -- in the Freightways case involved only 835.

Now, in this case, we have as one (Voice overlap)

Justice Hugo L. Black: That's one of the same rules would apply to unincorporated association of persons.

Mr. Ralph S. Spritzer: Unincorporated associations, yes, sir, the same rule is invloved.

Justice Hugo L. Black: Criminal liability?

Mr. Ralph S. Spritzer: Under a commercial offense of this kind, yes, Your Honor with the punishment restricted to a fine of the entity (Inaudible)

Justice Felix Frankfurter: It leads us to a much easier problem in view of the State and such a corporation on the particular state law (Inaudible)

Mr. Ralph S. Spritzer: Yes.

Well, of course, associations would vary I suppose in the --

Justice Felix Frankfurter: Yes, that's right.

It depends on -- the state law may -- may have really assimilated them to a corporation.

Mr. Ralph S. Spritzer: Yes in some instances (Inaudible) so.

Now, as to the first of these three (Inaudible) namely, all power of Congress, our position is simply that a State may adopt if it chooses the civil law or entity theory of the partnership on the grounds of varying degrees or varying purposes and Congress similarly, if it chooses and may do so for purposes of a particular regulation or statute within the federal power.

Justice Potter Stewart: Well, the opposing counsel doesn't quarrel with you on that basis of proposition.

So far as constitutional power, if you call it broad power of Congress, there's no constitutional issue here.

Mr. Ralph S. Spritzer: I would – no, certainly no constitutional issue there.

Our opponent does seem to say that -- suggests that Congress has never gone the -- under the common law theory because we point these numerous regulatory statutes which we didn't (Inaudible) under which quite specifically, Congress has defined persons who embrace various types of business organizations.

And I -- I won't carry any longer on this point except to say one word about the Adams Express case because that is opposed to the situation we had here.

It involved regulation of a carrier and that is -- it's a railroad carrier under the Interstate Commerce Act Part I.

And in that case, Adams made the defense when it was charged with a regulatory violation that it couldn't be fined because it was not a corporation.

It was an unincorporated association and Justice Holmes speaking for the Court said in that case that there could be no question of Congress' power, these are his words, “To charge the partnership assets with the liability, and to personify the company so far as to collect a fine by proceeding against it by the company name.“

Well, going on then to the question of Congress of the purpose in these acts, I've already referred to the passing with me referring to the brief.

Section 222, of course, covers the whole gamut of regulatory offenses in Part II of the Interstate Commerce Act and where one to go through the various Sections which imposed the multiple requirements to which motor carriers are subject, one would find that invariably, these Sections impose the obligation upon carriers.

That is true similarly of the implementing regulations promulgated by the commission.

The whole function of this statutory scheme is to require all carriers to live up to the prescribed and acceptable standards of performance and we think it would be anomalous if the statutes were interpreted, particularly in the case like this where there is a fine for a business offense, we think it would be anomalous if one could proceed against the corporate defendants, but not against the carriers as such doing business in other forms.

Justice John M. Harlan: Do you have any idea as to whether (Inaudible)

Mr. Ralph S. Spritzer: It's very unusual in the case of rail carriers but quite common among motor carriers.

We have listed in an appendix to this brief beginning at page 38.

“Prosecution is a partnership under Part II for a two plus year period.”

These are all unrecorded cases in which there were successful prosecutions of motor carrier partnerships.

There are very few reported cases which raised this issue because nobody raised it until after the information was dismissed in the American Freightways case.

Up until that time, there has been countless prosecutions in the District Court in which it had been either assumed or has been overlooked the point.

We've also listed in that appendix many other unreported cases under other regulatory statutes in which the Government has proceeded against partnership.

Some of those statutes that do not require a proof of willfulness or knowledge if you're looked into.

Unknown Speaker: (Inaudible)

Mr. Ralph S. Spritzer: I understand that it had.

There is no opinion (Inaudible).

I understand there had been cases under Section 222 in which a sole proprietorship was stood by the company name.

I believe they were terminated either by a no-law plea or by guilty plea and upon so, there is no opinion of which I'm aware discussing that issue.

Unknown Speaker: (Inaudible)

Mr. Ralph S. Spritzer: I don't think so.

Justice Felix Frankfurter: In those cases, there -- was it been on the (Inaudible) that some theory of the decision?

Mr. Ralph S. Spritzer: Well, as I -- as I say, the only cases we have are unreported cases, cases which did not result in an appeal.

So, there's no opinion to -- there is no basis for an answer.

Justice Felix Frankfurter: Well, there might be in the District Court.

There might be in the District Court.

Mr. Ralph S. Spritzer: Yes, but then not (Inaudible) opinion on that.

Now, I've already mentioned so far as 835, 18 U.S.C 835 is concerned, that we place heavy emphasis upon the declaration in the statute itself that these regulations shall be binding upon all common carriers.

Justice Felix Frankfurter: What was the initial date of 18 U.S.C. 835?

Mr. Ralph S. Spritzer: Its predecessors go all the way back to 1866, which accounts I think for the fact that it is a provision of the Criminal Code and never has been brought into the Commerce Act.

In 1866 after some disasters involving the carriage of nitroglycerin, Congress provided regulation of itself and the offenses remained incorporated in the Criminal Code ever since.

So, some time after the enactment of the Commerce Act, Commerce -- Congress delegated to the Commission the function of promulgating regulations and it's made the penalty attached to those commission regulations for violation of them.

Justice Hugo L. Black: Do you know, Mr. Spritzer whether there has been any effort to get Congress to clarify these provisions of the law since the American Freightways case decided here by an equally divided Court?

Mr. Ralph S. Spritzer: I do not know of any, Your Honor, but I will.

I have not made any exhaustive check of that, and if I should find that there has been any bill introduced, I will inform -- introduce -- I'll inform the Court.

I would be very much surprised if there has been any hearing or committee report on that that I don't know (Inaudible)

Chief Justice Earl Warren: We'll recess --

Argument of Ralph S. Spritzer

Chief Justice Earl Warren: Mr. Spritzer, you may proceed.

Mr. Ralph S. Spritzer: If the Court, please.

In elaboration of my answer to Mr. Justice Black's question earlier I'm able to confirm that there has been no legislation offered on the subject as covered by this Court's American Freightways decision since that day.

Turning to the implications that flow from the fact that these statutes require proof of scienter or knowledge, the suggestion that the inclusion of the word “knowing” should lead the Court to conclude that a partnership entity is not liable.

It seems to us, to begin with, proved too much because appellees apparently don't questions as indeed they hardly could in the light of the numerous decisions, including decisions of this Court that a corporation may be held criminally liable under 18 U.S.C. 835.

Therefore, it must be, we think, that this is a statute in which the word “knowing or willful” requires the Government to prove that the violation was conscious, but not a case in which the Government is required to prove criminal intent or evil or corrupt purpose in the sense that one must prove mens rea in a common-law crime.

We think, in other words, that “knowing” and “willful” in this statute means simply that it is a defense that the violation was wholly inadvertent.

We don't think it's a defense for the proprietors of the business to say, “We're not liable because we didn't bother with this.

We delegated all responsibility to our underlings.”

To take such a view of the statute would indeed hamper enforcement if not largely cripple it and I say that for these reasons.

If one looks at the explosives regulations that are involved in part in this case, one finds some 700 pages of detailed regulation dealing with all types of chemical compounds, all types of containers which should be used and the like, regulations which make it almost the job of industrial engineering to comply.

Now we think it's obvious that these regulations are intended to impose a responsibility upon management.

Management can employ the expertise required to know and understand and implement these regulations.

It alone can engage in the supervision, the discipline, the training which is necessary if this type of enterprise is to be carried on with a high degree of faith and we think it would defeat the congressional purpose in adopting commercial regulation of this type.

If it were a defense for the business entity to say as I've mentioned a moment ago, we don't know whether these explosive regulations were complied with.

We leave that to the assistant dispatcher or the driver.

Justice Felix Frankfurter: Of course one way of dealing with that problem, is not dealing with these words that give rise to these argument of purposeful desire?

Mr. Ralph S. Spritzer: Well we -- we do argue them and when we think with considerable basis that these words are adequate and clear in their purport.

Certainly we don't see how Congress could do better than it has in 222 (a) which in the very, I'm sorry in Section 203.

Now that that Section, which is in the very same part of the statute as the misdemeanor Section, defines “person” to include every type of business organization and we think insofar as 18 U.S.C. 835 is concerned that the emphasis upon the regulations being binding upon all common carriers is highly persuasive of the thesis that liability should go where responsibility is placed.

Justice Felix Frankfurter: I don't think it adds social policy or even judicial policy to exact care brought us upon this in training fee to legislation and the lax of the interpretation by Court, the lax the responsibility exercised by the Congress.

Mr. Ralph S. Spritzer: That's true.

We --

Justice John M. Harlan: And the opposite way to paraphrase it in hearing (Inaudible)

Mr. Ralph S. Spritzer: Well it was sufficiently clear Your Honor so the -- dozens and dozens of district courts have enforced this statute against partnership entities and until 1956, the question had never even been raised.

Of course if one goes so far as to say language isn't clear because there's been litigation that -- I suppose one couldn't argue plain language in any case.

We think this is sufficiently plain to leave Your Honors to conclude that this is what Congress proposed and we think the whole purpose, the whole thrust of the regulations that are embodied in these statutes eloquently support that view.

These after all are -- are classic-type business offenses.

What Congress is doing here is attempting to see to it that the people who run the business live up to prescribed standards.

Justice Felix Frankfurter: But the same -- but the same requirement applies to an individual.

Mr. Ralph S. Spritzer: Yes, and I think it --

Justice Felix Frankfurter: So that -- so that -- the stiffness of the construction has to be judged in the light of all those on whom the construction falls.

Mr. Ralph S. Spritzer: Well we certainly recognize that where one is dealing with imputed liability they're – there is a problem in the criminal law and that -- then it has to be kept within bounds.

And we have no quarrel certainly with decisions which indicate that a man may not suffer any deprivation of liberty, any imprisonment, without a showing of direct personal fault or causation on his part.

We do not suggest that the principal, where the principal is an individual, sued as an individual, can go to jail where there has been neither knowledge nor acquiescence on his part nor a showing of something like gross recklessness on his part.

Justice Felix Frankfurter: You -- you didn't cover more than you have given me up to this point.

If you think that the -- the content of liability would be different in the case of an individual from that of a party.

Mr. Ralph S. Spritzer: I think under 18 U.S.C. 835 where we pursue an individual, where we pursue an individual partner in this case, quo individual, that we would then have to establish his personal fault.

And I think certainly the Court would not readily hold that an individual sued as such even for an offense arising in the course of -- of the operation of the business could be imprisoned without a showing of personal fault.

Justice Felix Frankfurter: Could it be by -- and you would make a distinction between the imposition of a money that was here and the term imprison which is under the --

Mr. Ralph S. Spritzer: Yes.

Justice Felix Frankfurter: -- same statute -- under the same statute?

Mr. Ralph S. Spritzer: Well I would say under 18 U.S.C. 835 where imprisonment is a possible penalty, if we were to sue an individual as an individual we would have to prove personal fault or, and personal causation, a direct involvement or participation by the individual so sued.

Justice Felix Frankfurter: But no different involvement or relationship between the deed and the consequence than would be the case of an agent for the partnership.

Mr. Ralph S. Spritzer: No sir.

And that all that we're arguing here is that where we sue a business entity that response that a case is made out as in the criminal prosecution of a corporation by showing the required conscious violation on the part of an agent or employee who committed it in the course of his -- his business action.

Justice Felix Frankfurter: Is that like applicable to this?

I mean the -- the requirement, the extent of the requirement of the nexus between the agents doing and the responsibility of the principal.

Is that correct on that point?

Mr. Ralph S. Spritzer: Yes, and on that point certainly.

Chief Justice Earl Warren: Mr. Cioffi?

Argument of Anthony J. Cioffi

Mr. Anthony J. Cioffi: Mr. Chief Justice and Mr. Associate Justices.

In order to properly go into the background as to what law was in effect when Congress enacted the statutes in question, it was -- it is first necessary for me to give a very brief resume of what happened in the U.S. District Court.

I appeared on behalf of the appellee in this matter and I appeared before Judge Smith of the United State District Court and the partnership were indicted as entities and the individual partners were named if the entity affirmed a -- and that our contention was, in view of the American Freightways case and in the view of the Boyce Motor Lines case which just came down shortly before that that a partnership is not an entity separate and distinct from the partners for the purposes of criminal liability.

And I substantiated the arguments with the various cases which had interpreted US -- 18 U.S.C. 835 and the other statutes thereto.

And Judge Smith in his decision, in the record on page 19, the official record next to the -- at the semicolon at the Commerce Commission stated, “The Court having decided that defendant partnership as an entity is not subject to a criminal liability under the Section set forth and therefore the informations were dismissed.

Now, in order to properly decide whether or not a partnership is an entity, it is necessary to go into the history of partnership and I will try to be very brief.

There are two theories of partnership.

There is a mercantile theory which was the entity theory and after that we had our common law or aggregate theory and at that time that the Section was enacted by the court, the original Section, we were operating on the common law theory.

In 1900, the Dean Ames at the request of the commercial institution submitted through drafts, which drafts were based on the entity theory of partnership similar to a corporation of partnership is separate and distinct from the members who composed a partnership.

This was objected too because of the various state constitutions and in Dean Ames' definition, he stated that a partnership was a legal person composed of two or more individuals to conduct a business for a profit, and that was objected to by the persons who were there in its Uniform Partnership Act.

On Dean Ames' death, the drafting of the Uniform Partnership Act evolved to (Inaudible).

Now, this same question, “is a partnership an entity?”

came up in 1911 at the time that these drafts were being submitted and they were fairly discussed as to whether we should had the aggregate theory of partnership, the theory which we have today or whether or not we should have the entity theory of partnership and Dean Lewis submitted two drafts of the Uniform Partnership Act for approval.

One draft was a Legal Entity Theories we have which the governors intending to proceed on now and the other draft which he submitted was the aggregate theory draft.

There was considerable discussion of attorneys, businessmen, teachers attended these conferences and the conferences lasted for two days and they decided that in view of the long history of common law as to the fact that a partnership was an association of two or more persons who carry on a business as co-owners to the profit that they would accept the aggregate theory and the partners would be -- not distinguished from the partnership themselves, they would be more or less joint principles as co-owners of property.

Now, there are various reasons why it would be very detrimental if the existing law as to the aggregate theory of partnership were to be disturbed.

Many persons engaged in business going to business as a partner.

They lent to each other their skills and they donate their moneys into this partnership effort and persons who deal with these partners, know that they cannot own -- they can look to their partnership for payment of their obligations and they also can look to the individual partners for payment of any obligations arising out of the conduct of the business.

Justice Felix Frankfurter: Mr. Cioffi.

Mr. Anthony J. Cioffi: Yes, sir.

Justice Felix Frankfurter: The question before us isn't this abstract question whether you should adopt the mercantile theory of Madison or the old common law theory of an aggregate because long before that the discussion was ripe for the -- through this whole commission the Congress of the United States in what is now 1 U.S. 1 it simply goes back to define the statute to define person to include the partnership not as an abstract juristic problem, but as a legislative definition which is preceded theories to the constitutional acceptance.

Mr. Anthony J. Cioffi: Well at that time that Congress enacted that in 1866 that we were operating under the common law theory of partnerships which –-

Justice Felix Frankfurter: Well, I'm talking about the definition of partnership that which is now 1 U.S. as the model.

That the theory of entity must begin to begin with your -- someone accepts as legislative device for reading statutes Congress demanded this Court and all of the courts when appropriate to leave persons away when you of partnership.

So the question is to get such questions with the common law concept (Inaudible)

Mr. Anthony J. Cioffi: Well --

Justice Felix Frankfurter: Well in the first place, that definitory Section is applicable to 835 and secondly, whether (Inaudible) to the fact that he fixed it all come in carriers he tried the carrier was it all commentary to the matter what commercial -- do we mean you're carrying on what the commercial enterprise is or partnership, corporation of the New York State Association itself?

Mr. Anthony J. Cioffi: Well --

Justice Felix Frankfurter: Aren't you going to get -- come to grips with that specific thing rather than that which everybody can see I suppose that the common law didn't take the continental commercial view?

Mr. Anthony J. Cioffi: Mr. Frankfurter –- Mr. Justice Frankfurter, as to the word partnership which was adopted at that time it was adopted as to what it meant at that time and at that time it meant that the partners were not an entity.

They were not separate and distinct from the partnership in itself when they used the term partnership.

Justice Felix Frankfurter: That's -- that's when the word -- when the word partnership is good and I think that argument would prevail, but when they said -- when we say the word person, when we say persons do we mean to include by a -- as a collective conception -- two or three people running a business -- a partnership was never left to be deemed as one.

The way I read 1 U.S.C. 1, don't you?

Mr. Anthony J. Cioffi: Yes, sir.

I do read that way.

Chief Justice Earl Warren: You don't question the right the power of Congress to -- to hold a partnership with those who wants to do it, do you, in the circumstances?

Mr. Anthony J. Cioffi: In these circumstances, I do.

I -- I feel that Congress never intended partnership in the sense of being an entity in the statutes involved that when they said partnership they didn't mean it as an entity.

They meant it as the individual partners --

Chief Justice Earl Warren: Under the power is it?

The Congress has the power --

Mr. Anthony J. Cioffi: The Congress does have the power but Congress has not done it clearly.

Chief Justice Earl Warren: That's the difference.

Mr. Anthony J. Cioffi: But Congress does have the power.

There is no question as to that.

Justice Potter Stewart: You pointed (Inaudible)

Mr. Anthony J. Cioffi: It meant the members of the partnership and the partnership not as an entity.

It meant that a partnership actually was accepted in that -- during that period and that it was adopted by the aggregate theory of partnership and that -- that it was the very discussion -- that was the very discussion which came up at the time that it was being enacted as to what effect would it have on this whole theory of common law of the relationship of partners if they would declare a partnership as an entity.

And -- and then it was decided that we should accept the aggregate theory and not the entity theory and that's what our state operates under and I believe 37 other states and their territories under the aggregate theory of partnership.

We could have run into very serious problems.

There were two cases if the Court would bear with me, in California, one case was in California, People versus Malgene, 167 Pacific 597 and its referred to in my brief on page 13 -- 13 and 14.

In that case, Peter Malgene was indicted for embezzlement and he was a partner in the Malgene Freight.

They agreed to ship grapes for delivery and Peter Malegene charged and went off with the proceeds.

He embezzled the proceeds.

At the conviction the plaintiff appealed on the grounds that the indictment charge he was an agent of Homsy and thereby such agency the money came through his hands which was property of this -- this individual and he embezzled it and the court said, “The District Attorney could not have charged a partnership as an entity with having embezzled these funds.

The party charged with embezzlement in such cases must be the individual partner, who convert the funds” and there aren't any cases at all that I -- I have read the cases in the Government's brief and in my brief, I tried to do as best as I could, where a partnership has been convicted as an entity.

That our law is such that guilt is personal, we haven't accepted to respondi act court theory in criminal law and in order to convict the man you cannot impute guilt on him he must be tried.

Now, a -- a partnership is no more than an extension of a proprietorship.

You have a proprietorship which is one individual.

He has employees working for him.

Still it is necessary to indict him or to present him with information and prove -- prove the case against him beyond reasonable doubt or with the criminal law that we have.

A proprietorship is just two or more individuals and the same rule applies to proprietorship as applies to an individual.

Now Congress has expressed its intent in the statutes involved 18 U.S.C. 835 and in 222 (a) of the Motor Carrier Act that knowledge and willfulness is a part that must be considered in finding a person guilty.

And the 18 U.S.C. 835 has been decided and most of all our cases in this Court and in the Circuit Courts hold that they must prove -- the court must prove willfulness and it is respectfully requested that the motion of -- of the District Court be affirmed as to the dismissal.

Chief Justice Earl Warren: Mr. Spitzer, do you (Inaudible)