CASETEXT COURT CASES "THE GOLD RESERVE ACT of 1934"

CASETEXT COURT CASES  "THE GOLD RESERVE ACT of 1934" 

CASETEXT COURT CASES

Fuller v. United States

114 F.2d 698 (9th Cir. 1940

Eliminating the quoted words, the indictment then charges a conspiracy to acquire gold "in violation of sections 3 and 4 of the Gold Reserve Act of 1934 and sections 1 to 28 of the Regulations and amendments thereto duly issued by the Secretary * * *." It was suggested that these words, being those of the statute, sufficiently allege the violation of the Act of 1934.

Uebersee Finanz-Korporation, Etc. v. Rosen

83 F.2d 225 (2d Cir. 1936) 

A letter from the Acting Secretary of the Treasury, T.J. Coolidge in May, 1935, denied the application of complainant for license to export the gold and ordered the applicant and Ladenburg, Thalmann Co. to deliver the gold to the Federal Reserve Bank of New York for the account of the Treasurer of the United States against payment as provided by the instructions issued by the Secretary of the Treasury on January 17, 1934. The instructions referred to in the letter of Mr. Coolidge provided for payment for the gold coin at "the dollar face amount." They were ratified and approved by section 13 of the Gold Reserve Act of 1934 (31 U.S.C.A. § 824). Ladenburg, Thalmann Co. were attempting to comply with this order when stopped by a restraining order in this suit.

Ruffino v. United States

114 F.2d 696 (9th Cir. 1940)

By § 13 of the Gold Reserve Act of 1934, 48 Stat. 343, 12 U.S.C.A. § 213, Congress expressly ratified all orders issued by the President under the act of March 9, 1933, including, necessarily, Executive Order No. 6260. Hence we find no difficulty in holding that the order is valid and effective; and as has been seen it prohibits the acquisition of gold bullion except as therein indicated.

Bost v. United States

103 F.2d 717 (9th Cir. 1939)   Cited 8 times

Gold Reserve Act of 1934, 48 Stat. 337, 340, 31 U.S.C.A. § 442: Sec. 3. "The Secretary of the Treasury shall, by regulations issued hereunder, with the approval of the President, prescribe the conditions under which gold may be acquired and held, transported, melted or treated, imported, exported, or earmarked: (a) for industrial, professional, and artistic use; (b) by the Federal Reserve banks for the purpose of settling international balances; and, (c) for such other purposes as in his judgment are not inconsistent with the purposes of this Act [section 441 of this section]. Gold in any form may be acquired, transported, melted or treated, imported, exported, or earmarked or held in custody for foreign or domestic account (except on behalf of the United States) only to the extent permitted by, and subject to the conditions prescribed in, or pursuant to, such regulations. Such regulations may exempt from the provisions of this section, in whole or in part, gold situated in the Philippine Islands or other places beyond the limits of the continental United States."

Farber v. United States

114 F.2d 5 (9th Cir. 1940) 

In 1934 the Congress enacted the Gold Reserve Act of 1934, 48 Stat.L. 337, Title 31 U.S.C.A. §§ 441-443. This Act to a large extent consists of amendments to the Federal Reserve Act. It covers some but by no means all of the subject matter of the Trading with the Enemy Act and mainly treats of the Federal Reserve and the government of the Federal Reserve Banks. However, it contains the following:

United States v. Levy

137 F.2d 778 (2d Cir. 1943)

Turning to appellant's second point, we are clear that the six bars of melted scrap jewelry held by him were gold bullion within the terms of the authorizing act and the Presidential order. The jewelry was not of pure gold, some being gold plate, some gold filled, and some solid gold. It cannot reasonably be contended that Congress intended a general exemption of this scrap gold, once melted, since that would substantially weaken the effectiveness of the Act in preventing gold hoarding and exporting. See British-American Tobacco Co. v. Federal Reserve Bank of New York, supra, 2 Cir., 104 F.2d at page 654. And there was convincing expert testimony that melted scrap gold is generally considered gold bullion. The Secretary of the Treasury, too, in promulgating regulations concerning scrap gold must necessarily have considered it bullion within his authority to regulate under the Act. Witness his regulations issued September 12, 1933, requiring records of acquisitions and holdings of unmelted scrap gold; and see, also, Provisional Regulation No. 12…

Hills v. United States

97 F.2d 710 (9th Cir. 1938)

The indictment is predicated upon regulations issued by the Secretary of the Treasury pursuant to authorization given in the Gold Reserve Act of 1934, 48 Stat. 337, 31 U.S.C.A. § 440 et seq. Section 3 of the act, 31 U.S.C.A. § 442, provides that the Secretary of the Treasury shall by regulation prescribe the conditions under which gold may be acquired and held. Gold in any form may be acquired, except on behalf of the United States, only to the extent permitted by, and subject to the conditions prescribed in, such regulations. Section 35(a) of the regulations promulgated under the authority of this act authorizes the mints to purchase "gold recovered from any deposits in the United States or any place subject to the jurisdiction thereof, and which shall not have entered into monetary or industrial use."

Walling v. Haile Gold Mines

136 F.2d 102 (4th Cir. 1943)  

n Walling v. Haile Gold Mines, Inc., 136 F.2d 102, the administrator of the Wage and Hour Division, United States Department of Labor, sought an injunction to restrain a company engaged in gold mining from violating the Fair Labor Standards Act.

The court below also erroneously stated that Haile "must send its gold where the Government directs". As we have already seen, however, Section 3 of the Gold Reserve Act expressly provides for the sale of gold, under certain circumstances, to persons for industrial, professional and artistic use. See, also, 31 Code Fed.Reg. § 54.21. Indeed, the very license issued to Haile in the instant case stipulated that Haile could produce gold "for furnishing to, or processing for, persons authorized under the regulations issued under the Gold Reserve Act of 1934 to acquire and hold such gold * * * or for offering it for sale to the United States

Adams v. Burlington Northern R. Co.

80 F.3d 1377 (9th Cir. 1996)

[2] According to Adams, the 1933 Act (at least when combined with the 1934 abolition of gold as legal tender) created an impossibility defense to the payment of gold to the bondholders. He argues that the 1977 Amendment and the 1985 Act authorizing the use of gold as legal tender removed this "impediment," reviving the Railroad's obligations. This interpretation conflicts with the plain meaning of the 1933 statute. That statute does not simply forbid payment in illegal tender; it affirmatively authorizes payment in any tender legal at the time of payment. Indeed, gold was legal tender in 1933 and did not become illegal until enactment of the Gold Reserve Act of 1934, 48 Stat. 337, 340 (1934). The 1985 statute removes the barrier of the 1934 Act, but it does nothing to impair the 1933 statute. The effect of the 1985 statute is to permit the Burlington Northern to make payment in gold coins if it wishes to, but its debts are discharged if it pays in any legal tender. Section 5118(d)(2) so states.

Laycock v. Kenney

270 F.2d 580 (9th Cir. 1959) 

In Laycock the court made the following observations about the ownership of the metal prior to the time it is sold to the government, "... appellant's argument that the enforcement of the regulations deprives her of property without due process of law is without merit.

We will consider first whether the regulations fall within the authority granted by Congress. With the country in the grip of a disastrous economic crisis, in which the purchasing power of the dollar was constantly increasing, causing a resulting depression in the general price level, the Administration and Congress during 1933 and 1934 sought by various means to achieve a less variable dollar, restore a fairer price level, and to generally improve the country's financial and monetary system. This activity, which included the redemption of gold coin, bullion and certificates from all banks and individuals except the Federal Reserve Bank, culminated in the passage of the Gold Reserve Act of 1934, 48 Stat. 337, see 31 U.S.C.A. § 440, enacted January 30, 1934. Section 2 of the Act amended the Federal Reserve Act by vesting title to gold in the Federal Reserve System in the government under the control of the Treasury, permitting the Federal Reserve Bank to hold only gold certificates.

United States v. Chabot

193 F.2d 287 (2d Cir. 1951) 

In United States v. Chabot, 193 F.2d 287 (2d Cir. 1951), the defendant was convicted of possessing gold bullion without a license.

1. Both appellants claim that Order 6260 and 12 U.S.C.A. § 95a, originating in 1933, were effectively repealed by the Gold Reserve Act of 1934, 31 U.S.C.A. §§ 442, 443. The alleged repeal, if any, must be by implication, for in no place in the 1934 Act is there any express suggestion that the earlier measures are replaced. It is true that both the 1933 and the 1934 measures regulate the possession of bullion. The 1933 Act gives the President emergency powers to regulate the hoarding of gold, and, pursuant to this Act, he forbade the possession of bullion without licenses. The 1934 Act authorized the Secretary of the Treasury to prescribe the conditions under which gold might be held — without limiting his power to times of war or national emergency. The 1933 Act and Order 6260 imposed criminal punishment upon wilful violators of the Order. The 1934 Act invoked only civil penalties for all violators — wilful or otherwise — of Treasury Regulations issued pursuant to it. The two measures clearly supplement one another, and the 1934 Act in no way suggests repeal of the earlier

Canyon Corporation v. Nat'l Labor Relations Bd.

128 F.2d 953 (8th Cir. 1942) 

One of petitioner's contentions is that its activities are not a part of, nor do they affect, interstate commerce, and that it therefore is not subject to the Act. Petitioner's business is that of mining, refining, and selling gold bullion. Its properties, plant, and office are located at Maitland, in the Black Hills, near Deadwood, South Dakota. It produces approximately $500,000 worth of bullion annually, which it ships by railway express from Deadwood, South Dakota, and sells to the United States mint at Denver, Colorado. The argument made here is that, under the Gold Reserve Act of 1934, 48 Stat. 337, 31 U.S.C.A. § 440 et seq., gold is no longer actually an article of trade or commerce, and that its production and interstate shipment cannot therefore legitimately be regarded as "affecting commerce", within the meaning of the National Labor Relations Act.

Bauer v. United States

244 F.2d 794 (9th Cir. 1957) 

On January 30, 1934, an Act was passed which is known as the Gold Reserve Act of 1934. The Act is codified in 31 U.S.C.A. §§ 440-446, and provides in substance in § 442 that the Secretary of the Treasury shall, by regulation issued under this section, prescribe the conditions under which gold may be acquired and held, transported, melted, or treated, imported, exported or earmarked. Section 443 provides in substance that any gold acquired or held in violation of certain enumerated statutes or any regulations issued by the Secretary of the Treasury shall be forfeited to the United States, and in addition any person failing to comply with the enumerated statutes or any regulation thereunder shall be subject to a penalty equal to twice the value of the gold so seized or involved. Another section of this Act is now codified at 12 U.S.C.A. § 213, which provides congressional approval, ratification and confirmation of all actions, regulations and orders theretofore taken by the President or the Secretary of the Treasury in this regard. The Act of March 9, 1933, likewise contained a ratification clause

United States v. Yeatts

639 F.2d 1186 (5th Cir. 1981) 

Yeatts argues that gold coins, which were formerly minted in the United States and then withdrawn from circulation by the Gold Reserve Act of 1934 are no longer legal tender and, therefore, no longer coins of the United States. Section 485, however, does not require that gold coins be current legal tender.

Gallaher v. City of Huntington

759 F.2d 1155 (4th Cir. 1985)

First, Gallaher argues preemption by reason of a federal statute, the Gold Reserve Act of 1934, Pub.L. No. 73-87, §§ 3,  4, 48 Stat. 337, 338 (1934) which created conditions under which gold might be acquired and held. Sections 3 and 4 of the Gold Reserve Act of 1934 were repealed by Pub.L. 93-110, 87 Stat. 352 (1973), and amended by Pub.L. 93-373, 88 Stat. 445 (1974), whose stated purpose was to permit United States citizens to purchase, hold, sell, or otherwise deal with gold in the United States or abroad. However, the federal statute, first limiting private dealings by United States citizens in gold and subsequently permitting such dealing, deals with apples while Gallaher contends, in effect, that it should cover oranges. The federal statute was concerned with monetary policy and whether gold might be used as currency or as a substitute therefor. Those concerns are not affected one way or the other by the West Virginia statute. It instead attempts to forestall unauthorized asportation of another man's property, a matter preeminently addressed under the police power of local authorities, whether authorities of the state of West Virginia or of its municipalities and counties.

United States v. Wiesner

216 F.2d 739 (2d Cir. 1954)

Holding in the context of a different statute that “any offense which by act of Congress is prohibited in the interest of the public policy of the United States, although not ... punishable by criminal prosecution, but only by suit for penalty, is ... an offense against the United States”

The appellant Wiesner appeals from a judgment of conviction entered upon a verdict of guilty by a jury under an indictment charging him, Manuel Barrios, Warren L. Knotts, and others to the Grand Jury unknown with conspiracy to violate the Gold Reserve Act of 1934 and the Treasury Regulations made thereunder and to defraud the United States with respect to the exercise of its functions in administering the Gold Reserve Act and Regulations, in that they would acquire, hold, transport, offer to sell and dispose of more than 35 troy ounces of fine gold, at any one time, without a license. 18 U.S.C.A. § 371, 31 U.S.C.A. §§ 440-443, Treas.Gold Regs. §§ 54.21, 54.22, 54.23. Knotts pleaded guilty at the opening of the trial, Barrios was acquitted by the jury, and Wiesner was found guilty and sentenced to 6 months imprisonment and a fine of $2500.

Fuller v. United States

110 F.2d 815 (9th Cir. 1940)

The indictment charges in six of its counts that appellants and four others (who were acquitted) wilfully falsified material facts in a matter within the jurisdiction of an agency of the United States. The falsification occurred in connection with the sale of quantities of gold to the mint at San Francisco. Under regulations issued by the Secretary of the Treasury pursuant to the Gold Reserve Act of 1934, 31 U.S.C.A. §§ 440 et seq., the mints were authorized to purchase gold from persons who had mined or panned it, on the condition that the gold be accompanied by an affidavit on a form called TG-19. It was charged that in the affidavits which accompanied the tenders false information was given the mint concerning the source of the gold and the time of its production. Also that appellants falsely stated that it had been mined by themselves. There were six counts relating to as many falsifications and six relating to the use made of the affidavits. Appellants were convicted on all counts except the first, and were sentenced to serve five years on each count, the sentences to run concurrently.

Langbord v. U.S. Dep't of the Treasury

832 F.3d 170 (3d Cir. 2016)

In Langbord the court held that a man's prior forfeiture of gold coins to the government was relevant "to his knowledge that holding gold coins may be unlawful under certain circumstances."

Finally, yet another body of evidence points to Switt knowing the coins were stolen or embezzled: the documents demonstrating that the Government forfeited 98 gold coins Switt possessed in contravention of the Gold Reserve Act of 1934. This forfeiture showed that Switt had knowledge that holding gold coins was impermissible and could result in adverse government action. It also evidences Switt's motive to conceal the coins.

Laycock v. United States

230 F.2d 848 (9th Cir. 1956) 

This is an appeal from an order dismissing appellant's action for damages alleged to have been sustained as a proximate result of enforcement of the statutes and regulations relating to the sale of gold. [See: Gold Reserve Act of 1934, 48 Stat. 337, 31 U.S.C.A. § 440; 12 U.S.C.A. §§ 95a, 213; Executive Order 6260, as amended 12 U.S.C.A. following § 95a; United States Treasury Department Gold Regulations, 31 CFR, Part 54, §§ 54.1-55.2, 19 F.R. 4309-4316 (1954).]

Nat'l Labor Relations Bd. v. Idaho-Maryland Mines Corp.

98 F.2d 129 (9th Cir. 1938)  

In National Labor Relations Board v. Idaho-Maryland Mines Corporation, 9 Cir., 98 F.2d 129, 131, the facts were that the respondent was engaged in mining gold and silver in California, which minerals were sold and delivered to the Government at its mint at San Francisco in that state.

Respondent does no smelting or refining. Its product is a natural alloy of gold and silver. Respondent transports the major portion of its product by its own airplanes to San Francisco, California, and there sells and delivers it to the United States mint. It sells the rest of its product to a refinery at Selby, California, which refines such product, pays respondent the current Government price therefor, less refining charges, and, in turn, sells the refined gold and silver to the San Francisco mint. Respondent has not, since passage of the Gold Reserve Act of 1934, shipped or sold any of its product to anyone except the San Francisco mint and the refinery at Selby.

Holyoke Water Power Co. v. Am. Writing Paper

83 F.2d 398 (1st Cir. 1936) 

The question then is: The first option open to appellee to pay the rental in a quantity of gold equal to $1,500 of gold coin of the standard weight and fineness of gold coin of the year 1894 having been rendered impossible of performance by executive orders, the Joint Resolution of June 5, 1933, and the orders of the Secretary of the Treasury on December 28, 1933, and January 15, 1934, and the gold dollar, the standard unit of value of United States currency, having been devalued on January 31, 1934, by order of the President under the authority vested in him by the Act of May 12, 1933, and the Gold Reserve Act of January 30, 1934, what was the equivalent of a quantity of gold equal to $1500 of gold coin of the standard weight and fineness in 1894 in currency of the United States after January 31, 1934, when the rentals under these indentures became due?

Peterman v. Coleman

764 F.2d 1416 (11th Cir. 1985)

Upholding county ordinance allowing officials to conduct warrantless searches of pawnshop records

A state's exercise of its police power will not be considered as superseded by a federal act "unless that was the clear and manifest purpose of Congress." Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). We do not read the Gold Reserve Act Amendments to evince a clear and manifest purpose to supersede Pinellas County's regulation of second-hand goods that contain gold. Furthermore, we do not interpret the ordinance to conflict with the Gold Act Amendments in any event. The ordinance does not "prohibit" transactions in gold; it only directs that possession of second-hand goods not be transferred until five days after the goods are acquired by dealers. As noted, transactions in gold bullion and in bullion coin are not affected by the statute. We conclude that Ordinance No. 84-17 does not violate the Supremacy Clause of the United States Constitution.

PAGE 1423

Appellant contends that Ordinance No. 84-17 violates the Supremacy Clause of the United States Constitution, Art. 6, Clause 2, in that it conflicts with the Gold Reserve Act of 1934, as amended by Act of August 14, 1974, Pub.L. No. 93-373, § 2, 88 Stat. 445, which provides that "no provision of any law . . . may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing with gold in the United States or abroad." Appellant contends that the ordinance's five-day holding period "prohibits . . . otherwise dealing with gold," contrary to the federal statute.

Fox v. Summit King Mines

143 F.2d 926 (9th Cir. 1944) 

Appellee further contends that under the Gold Reserve Act of 1934, 31 U.S.C.A. §§ 440-446, 48 Stat. 337, and the regulations issued thereunder, gold is no longer actually an article of trade or commerce and that its production and interstate shipment cannot therefore be regarded as an article of commerce at the date of the enactment of the Fair Labor Standards Act of 1938. Such a construction would be out of harmony with the intent of congress in giving to the field of industrial relations a remedial statute, which should be liberally construed. The Treasury Department has, by appropriate regulations, authorized the sale of refined gold by producers, under proper licenses, to certain private users throughout the country for industrial, professional and artistic purposes. We cannot agree with appellee's construction that the Gold Reserve Act makes its products non-commercial in character. But even assuming, arguendo, that this contention was sound, it would not defeat jurisdiction in this case, since it is well settled that transmission through the mails is interstate commerce (International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27 L.R.A., N.S., 493, 18 Ann.Cas. 1103), and that it is immaterial whether or not the transportation is commercial in character. Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann.Cas. 1917B, 1168. The Fair Labor Standards Act has been held applicable to goods which never came into competition with goods in other States. Atlantic Co. v. Walling, 5 Cir., 131 F.2d 518; Chapman v. Home Ice Co., 6 Cir., 136 F.2d 353.

The remaining controversy in the case rests not so much upon any law involved as upon the facts. The issue is: Were the appellants suffered or permitted to work in their free time during each shift under such circumstances and in such manner as would bring this case within the provisions of the statute relied upon. The determination of the facts involves the credibility of the witnesses and the weight to be given to the evidence which concededly was conflicting.

Franklin Mint Corp. v. Trans World Airlines

690 F.2d 303 (2d Cir. 1982)

Ruling on enforcement of liability under Warsaw Convention held to be "prospective and will apply only to events creating liability occurring 60 days from the issuance of the mandate"

These events led ultimately to the demise of the gold standard. In early 1968, depletion of the United States gold reserve led the central banks of Belgium, the Federal Republic of Germany, Italy, the Netherlands, Switzerland, the United Kingdom and the United States to agree to discontinue supplying gold to private markets. A so-called "two-tier" system of gold pricing — a market price set accordingly and the official price set under Bretton woods — was thus created. This eased the pressure but could not remedy the essential flaw. In addition to persistent United States balance of payment deficits, international gold reserves grew more slowly than the volume of world economic activity. As a consequence, banks faced pressures to liquidate official holdings in light of readily available market profits. The stage was thus set for abandonment of the Bretton Woods arrangements.

PAGE 308

From October, 1934, when the United States first adhered to the Convention, until 1978, use of gold as the unit of account posed no problem for United States Courts or the judicial tribunals of other signatory nations. In 1934, the value of gold was set at $35 per troy ounce pursuant to statute, United States Gold Reserve Act of 1934, Pub.L. No. 73-87, 48 Stat. 337 (1934). When the United States became a party to the International Monetary Fund (IMF) in 1945, see Bretton Woods Agreements Act, ch. 339, § 2, Pub.L. No. 79-171, 59 Stat. 512 (1945) (codified at 22 U.S.C. § 286 (1976)), it promised to maintain (and, if necessary, redeem) the value of United States dollars in terms of gold. For purposes of the Convention's limits on liability, therefore, the relationship of gold and the dollar allowed judicial tribunals to award judgments on a stable, uniform basis.

Southern Capital Corp. v. Southern Pac. Co.

568 F.2d 590 (8th Cir. 1978) 

In the Act of Sept. 21, 1973, Pub.L. No. 93-110, § 3, 87 Stat. 352, Congress specifically repealed sections 3 and 4 of the Gold Reserve Act of 1934, 31 U.S.C. § 442 and 443. We note, however, that neither the Joint Resolution or its codification in 31 U.S.C. § 463 is expressly mentioned. In the subsequent Act of Aug. 14, 1974, Pub.L. No. 93-373, § 2, 88 Stat. 445, Congress provided that no provisions of any law may be construed to prohibit any person from purchasing, holding, selling or otherwise dealing with gold in the United States or abroad. As it is clear that the Joint Resolution was not expressly repealed by either Act, the question remains whether it was repealed by implication.

United States v. 71.41 Ounces Gold Filled Scrap

94 F.2d 17 (2d Cir. 1938)   Cited 9 times

1 more...

This libel was filed for the forfeiture of gold held in custody by the appellant after seizure by a secret service operative in conjunction with an investigator of the Director of the Mint's office. Gold Reserve Act, §§ 2(a), 3, 4, title 31 U.S.C.A. §§ 441-443. The act provides that any gold withheld, acquired, transported, melted or treated, imported, exported or earmarked or held in custody in violation of the provisions of the act or regulations issued thereunder or license issued pursuant thereto, shall be forfeited to the United States.

PAGE 18

By affidavits it was shown that on June 1, 1934, a license to deal in unmelted scrap gold to the extent of 200 Troy ounces was issued by the United States Assay Office to the Baraban Refining Company, Inc. and this was revoked September 24, 1934. On November 26, 1934, a license was granted to Minnie Sarch to acquire and hold, transport and import unmelted scrap gold not exceeding at any one time 25 Troy ounces. On April 1, 1935, a government employee, investigating transactions in gold, entered a store of the Baraban Refining Company, Inc., in the borough of Manhattan, New York City. The premises are on the ground floor and open to the public. Inside there are showcases, and a workshop is in the rear. While there the investigator witnessed a transaction in which a person agreed to pay $9 for an item of scrap gold. The purchaser was David Baraban, appellee, who admitted that he was dealing in gold without a license. Jacob Baraban was also present at the sale. Both were associated with the Baraban Refining Company, Inc. The investigator reported this occurrence to the Assay Office and an operative was assigned… 

United States v. Patnaik

No. 23-10043 (9th Cir. Jan. 14, 2025)

Our circuit has fully embraced the Court's principle too. One year after Kapp, our court applied it to deny a challenge to a fraud conviction. Hills v. United States, 97 F.2d 710, 713 (9th Cir. 1938). In that case, the defendant lied about the source and origin of gold sold to the government. Id. The defendant argued that the statute that caused him to submit the false statement, the Gold Reserve Act of 1934, unconstitutionally delegated authority to the Treasury Secretary. Id. We made short work of the claim:

Smolowe v. Delendo Corporation

136 F.2d 231 (2d Cir. 1943)

In Smolowe v. Delendo Corporation, 2 Cir., 136 F.2d 231, 148 A.L.R. 300, certiorari denied Delendo Corp. v. Smolowe, 320 U.S. 751, 64 S.Ct. 56, 88 L.Ed. 446, we upheld and applied § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78p(b), making any profit from a "shortswing" speculation in corporate stock by an "insider" inure to the benefit of the corporation.

Bona fide transactions, too, may be caught in the net of the law. But what is legitimately struck at is the tendency to evil in other cases. Cf. Woods v. City Nat. Bank Trust Co. of Chicago, supra; see Weil v. Neary, 278 U.S. 160, 173, 49 S.Ct. 144, 73 L.Ed. 243. Nor is it a valid objection to the law that it affects stock acquired before the Act. The case is not unlike Uebersee Finanz-Korporation Aktien Gesellschaft v. Rosen, 2 Cir., 83 F.2d 225, certiorari denied 298 U.S. 679, 56 S.Ct. 946, 80 L.Ed. 1400, where the Gold Reserve Act, 48 Stat. 337, was applied to gold acquired before its enactment. Here, however, the asserted liability seems more an incident of the holding of office than of the ownership of stock. Defendants continued in office after the passage of the Act, submitted to its registration provisions concerning the stock of their corporation, and, we think, assumed the liability of § 16(b). Cf. Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796.

PAGE 240

See Hearings before Committee on Banking and Currency on S. 84, 72d Cong., 2d Sess., and S. 56 and S. 97, 73d Cong., 1st and 2d Sess., 1934; Tracy and MacChesney, The Securities Exchange Act of 1934, 32 Mich.L.Rev. 1025, 1032; Comment, 32 Mich.L.Rev. 678.

Gold Bondholders Protective Council v. U.S.

676 F.2d 643 (Fed. Cir. 1982)

Plaintiff also relies on the fact that since December 31, 1974, all United States citizens have been entitled to hold gold. In 1973 and 1974, Congress enacted two statutes which are sometimes referred to as the "Gold Ownership Amendments." The first of these was Public Law 93-110, 87 Stat. 352, and the second was Public Law 93-373, 88 Stat. 445. Both amendments became effective December 31, 1974. As a result, the prohibitions on gold ownership were lifted by repealing sections 3 and 4 of the Gold Reserve Act and by further providing that no law, rule, regulation, or order "may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing with gold in the United States or abroad."

PAGE 647

However, the Court held that Perry could not recover for breach of contract, because he had suffered only nominal damages and the Court of Claims had no authority to entertain an action for nominal damages. This result was reached on the ground that by congressional enactments in 1933 and 1934, the United States had abandoned the gold standard, required private persons to surrender to the Government all gold held by them, and provided that the holder of gold coin could not export it or engage in transactions of foreign exchange.

Maldonado v. Dominguez

137 F.3d 1 (1st Cir. 1998)

In Maldonado, plaintiffs were seeking to have the court imply a private right of action under § 17(a) of the Securities Act of 1933.

The present suit was brought before the District Court of Puerto Rico under the Securities Act of 1933, 15 U.S.C. § 77 (the "1933 Act" or "Securities Act"), and the Securities Act of 1934, 15 U.S.C. § 78 (the "1934 Act" or "Exchange Act"). Plaintiffs allege that fraudulent statements and omissions were made by Dominguez and Rosado, and further allege vicarious liability on the part of Dean Witter. The district court dismissed all claims on Rule 12(b)(6) motions. This appeal followed.

PAGE 5

This would give PRIBANK an advantage over normal financial institutions which purchased floating REMICS and CMOs without this perfect matching. Normal financial institutions have mismatched inventories, and have to keep reserves on hand to account for withdrawals and to pay obligations when they come due. The higher interest rates these institutions make on their loans barely make up for the potential interest lost on the money sitting in their reserves at any given time. However, due to its perfect matching, PRIBANK would not be required to keep any significant reserves on hand, and could invest all of its money every month, enabling it to take full advantage of the spread in interest rates. Therein lay the key to PRIBANK's philosophy, and eventually to its downfall.

PAGE 4

In any case, we need not remand this case to allow for a revision of the complaint because the amendments proposed by the plaintiffs would be futile. See Foman v. Davis, 371 U.S. 178 (1962) (leave to amend shall not be granted where amendments would be futile); Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994) (same). In their request for leave to amend, and again before this court, plaintiffs allude to the factual allegations which they would incorporate into an amended complaint, producing detailed documentary evidence for support. Nonetheless, a careful review of this material reveals that these amended claims would be destined for dismissal.

Argonaut Mining Co. v. McPike

78 F.2d 584 (9th Cir. 1935) 

The bill further alleges that section 5(b) of the Act of October 6, 1917, as amended by section 2 of the Act of March 9, 1933, section 11(n) of the Federal Reserve Act, as amended by section 3 of the Act of March 9, 1933, the President's order of August 28, 1933, and the Acting Secretary's order of December 28, 1933, are unconstitutional and void, but that, notwithstanding their invalidity, appellee threatens to prosecute appellant thereunder unless it delivers its said bullion at the wholly arbitrary price of $20.67 per ounce, and to recover of appellant a penalty of double the value of said bullion, and that, unless restrained therefrom appellee intends to and will enforce against appellant, "the various pains, penalties, seizures and forfeitures provided for in said Act of Congress of March 9, 1933," and the orders issued thereunder, and will commence and prosecute "the various prosecutions, proceedings and suits purported to be authorized or required." The various pains, penalties, seizures, forfeitures, prosecutions, proceedings and suits referred to are not particularized. Apparently, the only action specifically threatened is a… 

PAGE 586

The bill further alleges that, pursuant to the Acting Secretary's order of December 28, 1933, appellant, on January 10, 1934, tendered its said bullion to the Treasurer of the United States; that the Secretary of the Treasury refused to pay appellant the then prevailing market price of $34.06 per ounce for said bullion, but offered appellant the arbitrary price of $20.67 per ounce therefor, in currency of the United States; and that appellant thereupon withdrew its tender and retained said bullion in its possession, but that appellant has always been and is now ready and willing to deliver said bullion "to the duly authorized agent of the United States in return for just compensation to which it is entitled under the Constitution of the United States."

S.E.C. v. Rogers

790 F.2d 1450 (9th Cir. 1986)

Applying the Harmsen test to allegations under the Securities Act of 1933

The Securities and Exchange Commission ("SEC") appeals from the district court's finding that appellee Gerald Rogers did not substantially participate in three public offerings of tax-shelter investments promoted by International Monetary Exchange, S.A. ("IME"). The SEC charged Rogers with selling unregistered securities in violation of section 5 of the Securities Act of 1933 ("the 1933 Act"); using fraudulent practices in the sale of securities in violation of section 17(a)(1) of the 1933 Act and section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The SEC also charged Rogers with aiding and abetting violations of the antifraud provisions of the securities laws. After a bench trial, the district court entered judgment in favor of Rogers on all charges.

PAGE 1452

The SEC also contends that Rogers participated in leasing to investors more cubic meters of proven gold-bearing reserves than actually existed. The SEC rests this argument on its contention that Rogers was "the single person responsible for investor leases." To reverse the district court on this issue, we would have to find that more proven reserves were leased than actually existed, that Rogers was involved in the leasing of the reserves to investors, and that Rogers should have known from Kittredge's reports that only a small amount of proven reserves actually existed at the Paul Isnard Concession. Insufficient evidence exists in the record to support such findings.

United States v. Consolidated Mines Smelting

455 F.2d 432 (9th Cir. 1971

Identifying date of enactment of Federal Register Act

"The lands classified as mineral were subject to location and disposal under the mineral-land laws of the United States. These lands were temporarily withdrawn from all forms of entry and disposition by departmental order of September 19, 1934 with a view to restoring them to tribal ownership under the Indian Reorganization Act of 1934 (IRA). However, since the Colville Indians excluded themselves from the IRA, the restoration of the lands to tribal status may be accomplished only by congressional authority." S. Rep. No. 2557, 84th Cong., 2nd Sess. (1956).

PAGE 443

"* * * The President, in the order here in question, is attempting neither to create a forest reserve, nor add to one already existing. He merely withdrew the land from settlement pending action by Congress, which alone has the power under the act to create forest reserves within the states therein named. In other words, the President withdrew the land, not to create a forest reserve, but that Congress might. However, the power of withdrawal is inherent in the President without the express authority of Congress. United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673."

Greensfelder v. St. Louis Public Service Co.

114 F.2d 53 (8th Cir. 1940)

In Greensfelder v. St. Louis Public Service Co., 8 Cir., 114 F.2d 53, 54, the court, after awarding part of the claim, held: "In reorganization proceeding under the Bankruptcy Act, the court in allowing fees, was not concerned with amount of fees which noteholders' committee, or the clients of attorney retained thereby, might be obligated to pay him."

Outstanding in the hands of the public $17,894,000.00 Pledged to secure 6% Collateral Bank Loan (The validity of this pledge was disputed, but finally upheld) ............... $16,626,000.00 Pledged to secure appeal bonds ............................. 437,000.00 Held in Treasury of the Company ........................... 118,000.00 City and Suburban Public Service Company First Mortgage Sinking Fund Gold Bonds, 5% Series A, due July 1, 1934 (hereinafter referred to as "Suburban 5's"): Outstanding in the hands of the public 3,263,000.00 St. Louis Public Service Company Five Year Six Per Cent Convertible Gold Notes (hereinafter referred to as "Convertible Gold Notes"): Outstanding in the hands of the public 2,448,875.00 Florissant Construction, Real Estate and Investment Company First Mortgage Real Estate 5½% Notes (hereinafter referred to as "Florissant Notes") (Guaranteed by St. Louis Public Service Company): Outstanding in the hands of the public 541,000.00 Collateral Bank Loan originally in the principal amount of $10,000,000 (hereinafter referred to as "Ten Million Dollar Bank Loan") (This loan was secured by a pledge of $16,626,000 par value… 

While the St. Louis Public Service Company was in receivership, protective committees for the United Railways 4's and Suburban 5's issues were formed; the transportation business of the Company was carried on, tax and interest payments were made and payment on the stock purchase of the St. Louis Motor Coach Corporation was completed. Question was raised as to the validity of the pledge of the United Railways 4's made to the banks as security for the $10,000,000 loan; intervention in the litigation of this matter was attempted by one Slupsky, a holder of United Railways 4's, and an appeal was taken to this court. Attack was also made on the validity of the receivership proceedings and an ineffective appeal was taken from the order overruling the motion by which the attack was made. In March of 1934 the trustee of the United Railways 4's requested foreclosure and sale of the mortgaged property, and this action was subsequently consolidated with the receivership proceedings, Mr. Kiel continuing as receiver. Immediately after Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, became effective, 11:01 A.M. (St. Louis time), June 7, 1934, reorganization… 

PAGE 57

Current Liabilities ........................... 1,120,215.88 Reserve for Depreciation ...................... 8,307,847.74 Reserve for Injury and Damage Claims .......... 353,278.57 Surplus Reserve ............................... 15,954,221.84 Capital Stock: Class A, $1.00 Par, issued and outstanding .. 94,128.00 Class B, $1.00 Par, 33,252 shares authorized, issued and pledged as partial security for Collateral Trust 4% Notes .................................. ............ ______________ $52,926,748.58

Gold v. United States

237 F.2d 764 (D.C. Cir. 1956)

62 Stat. 749 (1948), 18 U.S.C. § 1001 (1952). That part of § 1001 dealing with false statements was added by the Act of June 18, 1934, 48 Stat. 996. In the general revision of the Criminal Code in 1948, § 1001 emerged from § 35 of the Criminal Code, 18 U.S.C. § 80, as amended by the Act of 1934. In that revision, 18 U.S.C. § 80 was split up. The portion relating to false claims against the Government now appears in 18 U.S.C. § 287, the so-called false statements part in § 1001. 62 Stat. 698, 749. The legislative history of § 1001 is traced in United States v. Gilliland, 1941, 312 U.S. 86, 93-95, 61 S.Ct. 518, 85 L.Ed. 598. See also United States v. Bramblett, 1955, 348 U.S. 503, 507, 75 S.Ct. 504, 99 L.Ed. 594.

PAGE 765

The Government also presented evidence that Gold and his union were active in the defense of Irving Potash, one of the eleven Communist leaders convicted of violating the Smith Act, 18 U.S.C. § 2385, see Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, but does not rely upon it in this appeal.

PAGE 768

Upon consideration whereof, it is ordered and adjudged by this Court that the judgment of the said District Court on appeal in this case be, and it is hereby, affirmed by an equally divided Court. Each Judge of this Court reserves the right to file a statement of his vote and his reasons.

Staunton Industrial Loan Corp. v. Commissioner

120 F.2d 930 (4th Cir. 1941)

Holding that one of the "chief functions" of a bank is "the receipt of deposits from the general public, repayable to the depositors on demand or at a fixed time"

"(a) Definition. As used in this section the term `bank' means a bank or trust company incorporated and doing business under the laws of the United States (including laws relating to the District of Columbia), of any State, or of any Territory, a substantial part of the business of which consists of receiving deposits and making loans and discounts, or of exercising fiduciary powers similar to those permitted to national banks under section 11(k) of the Federal Reserve Act, as amended, and which is subject by law to supervision and examination by State or Federal authority having supervision over banking institutions.

PAGE 932

A reading of these general definitions clearly reveals that the chief functions of a bank involve. (1) the receipt of deposits from the general public, repayable to the depositors on demand or at a fixed time, (2) the use of deposit funds for secured loans, and (3) the relationship of debtor and creditor between the bank and the depositor. These seem to be the bare requisites; for, certainly, an institution may still be given the general classification of a "bank" despite many other extensive and varied activities. Indeed, the title "bank" will vary with differences in the purpose of classification. The wide range in the definition of this word becomes apparent when we note that there are national banks and state banks; that there are savings-banks, private banks, and loan and trust companies; that there are Federal Reserve Banks, Federal Home Loan Banks, Banks for Cooperatives, Federal Intermediate Credit Banks, and Federal Land Banks. In Oulton v. German Savings L. Soc. 1872, 84 U.S. 109, 118, 119, 17 Wall. 109, 118, 119, 21 L.Ed. 618, Mr. Justice Clifford enunciated a definition of banks which has now become classic: "Banks in the commercial sense are of three kinds… 

PAGE 934

The Board concluded in its opinion "that to be entitled to the benefits of section 104 petitioner must show that it was organized and doing business as a bank under the laws of Virginia." (42 B.T.A. No. 153, at p. 6). It then stated that, under the applicable Virginia law, a marked distinction is made between "banks", on the one hand, and "industrial loan associations", on the other. The Board indicated that banks of Virginia are defined and regulated by a chapter known as the Banking Code, Chapter 164A of the Virginia Code of 1936, while industrial loan corporations are defined and regulated by Chapter 166A of the Virginia Code of 1936; that section 4149(1) of the Banking Code provides that the term bank as used therein includes "banks of deposit and discount, savings banks, savings societies, savings institutions and trust companies * * *", while section 4149(4) of the same code provides that corporations not lawfully engaged in the banking business may not use an office sign indicating thereon that such place is the office of a bank, nor may it use such letterheads as would indicate that it is doing business as a bank; that under section 4168(2) of Chapter 166A, relating to…

Securities Exch. Com'n v. Texas Gulf Sulphur

401 F.2d 833 (2d Cir. 1968)

Explaining that the SEC "promulgated [Rule 10b-5] pursuant to the grant of authority given the SEC by Congress in Section 10(b) of the Securities Exchange Act of 1934," by which Congress sought "to prevent inequitable and unfair practices and to insure fairness in securities transactions generally, whether conducted face-to-face, over the counter, or on exchanges"

The broad congressional purpose in passing the Securities Exchange Act of 1934 is set forth by Thomas G. Corcoran, one of the draftsmen of the bill that became the 1934 Act. He stated at a 1934 House hearing that "this bill has at bottom five ideas in it, and all 36 pages tie in around the five ideas." According to Corcoran these five ideas were (1) control on the amount of credit, (2) control of manipulations, (3) control of insider trading [§ 16(b)], (4) elimination of abuses in the market machinery, and (5) the establishment of the Securities Exchange Commission to administer the Act. As to manipulation, he testified that:

PAGE 883

Despite rumors in the Canadian press that TGS had made a major discovery, Lamont had advised Stephens "that TGS should take no action unless the rumors reached the New York press or until TGS had sufficient information available to issue an appropriate press release." 258 F. Supp. at 293. On Saturday morning, April 11th, both the New York Herald Tribune and the New York Times prominently reported a major ore discovery. In a front page article carrying the title "Canada's Copper Rush" the Herald Tribune stated "The biggest ore strike since gold was discovered more than 60 years ago in Canada has stampeded speculators to the snowbound old mining city of Timmins * * *." The article also stated that the richness of the copper was so great that the core was flown out of the country to be assayed and that four more drill rigs were scheduled to start working the following week. All of these statements were inaccurate and a matter of concern to Fogarty and Stephens. Stephens advised Fogarty that TGS should issue a press release to clarify the rumors that Fogarty therefore contacted Mollison who had just returned from Timmins.

PAGE 879

The majority says that negligent misstatement by a corporation is enough for injunctive relief under Rule 10b-5(2) in a proper case; it reserves the question, not here presented, whether the corporation is liable for damages. I think the remand should make crystal clear that the issue whether this is a proper case for an injunction remains open, and that with 49 private actions pending in the District Court for the Southern District of New York, see 258 F. Supp. 262, 267 n. 1 (1966), some of which may involve this issue, we should explicate more clearly why, despite the principle that a violation of the securities laws or regulations generally gives rise to a private claim for damages, see J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), violation of Rule 10b-5(2) may not do so under all circumstances, including those presented by the April 12 press release. The attention this case has received from the profession and our in banc consideration make it incumbent on us to give the district courts in our circuit as much guidance as we can.