Brief for the Respondent in Opposition — Bradford v. United States

Page

EERIE ETE ra PILE a cA A ae

Rt eee ee te clo ed 1

I oc ee ee ak ew 2

I cri sa a ee age 2

dao oo Nn ached aw cu oe 3

IRE Seiki yee ease hoa ec SA ea ed 13

a AE SSOP SE a gM na DO 22

CITATIONS

Cases:

Bush v. United States, 16 F. (2d) 709___________.______. 20

Bruce v. United States, 73 F. (2d) 972__.___.____.._.___- 17

Chadwick v. United States, 141 Fed. 225__.__..__.______. 20

Degnan v. United States, 271 Fed. 291______.._________- 17

mew ©. Cima plates, 97 F. (9d) 716. 2. 5-2 ee 17

Dunlop v. United States, 165 U. 8. 486___....._--_____.- 16

Fairmount Glass Works v. Coal Co., 287 U. 8. 474__.____- 21

Girson v. United States, 88 F. (2d) 358, certiorari denied,

So ee MERE TRS REISE SEBO SO Res hc AT A ae 16

Glover v. United States, 125 F. (2d) 291, certiorari denied,

May 25, 1942, No. 1158, Oct. Term, 1941_____________ 13, 17

Hart v. United States, 112 F. (2d) 128____.._______.___.. 4

Hoyt v. United States, 273 Fed. 792__________- Ps Sve 20

Husten v. United States, 95 F. (2d) 168________________. 16

Jordan v. United States, 120 F. (2d) 65, certiorari denied,

PR, oe es Sei ke Leek 21

Laska v. United States, 82 F. (2d) 672, certiorari denied,

I I sore Se oe eon 18

Leche v. United States, 118 F. (2d) 246, certiorari denied,

NE fa ih ae ae eS Ce 14

Lindsey v. United States, 264 Fed. 94, certiorari denied,

ES SERIES SRL ieee op en Ome Pen ape em 17

McDonald v. United States, 89 F. (2d) 128, certiorari denied,

I ON ce oe a feken eenes sales Laas 18

McNamara v. Henkel, 226 U. 8. 520.................... 16

Morris v. United States, 112 F. (2d) 522, certiorari denied,

EERE NSP ESR lilt Poke ee re Sr 20

Niederluecke v. United States, 47 F. (2d) 888_.___.______. 17

Pandolfo v. United States, 128 F. (2d) 917, certiorari denied,

October 12, 1942, No. 223, this Term____.__.________. 13

Rosen v. United States, 271 Fed. 651__._-__- re eRe PATNI eh 17

493330—42——1 (1)

Rati D rac hate cn

Il

Cases—Continued.

Sanchez v. United States, 108 F. (2d) 735, certiorari denied,

Shushan v. United States, 117 F. (2d) 110, certiorari denied,

OE5- 0 Ge ras Shae wk OR Sas ce cate doen ewekeae

Skelly v. United States, 76 F. (2d) 483, certiorari denied,

Smith v. United States, 106 F. ak ERR Re eee ope 20S 2

Tincher v. United States, 11 F. (2d) 18, certiorari denied,

United States v. Di Carlo, 64 F. (2d) 15_-..-------------

United States v. Dressler, 112 F. (2d) 972__-..-.--------

United States v. Groves, 122 F. (2d) 87, certiorari denied,

BIA: OAs cea eae esis Shee Se ee cee

United States v. Hartenfeld, 113 F. (2d) 359, certiorari

denied, $11: U.S. G47 suc 2 ch sos se se de senna nce

United States v. Holt, 108 F. (2d) 365, certiorari denied,

309 U. S. 672, rehearing denied, 309 U. S. 698_--------

Weiss v. United States, 120 F. (2d) 472, rehearing denied,

122 F. (2d) 675, certiorari denied, 314 U. 8S. 687__-- - .4

Wilkerson v. United States, 41 F. (2d) 654, certiorari denied,

983 U §; SOAs ea ee eas

Wilson v. United States, 162 U. S. 613. ___--------------

Wolf v. United States, 290 Fed. 738_--------------------

Statute:

Mail Fraud Statute (Section 215 of the Criminal Code,

16 G.-Bi 0. 886) cs 2 See eee ee

Section 269 of the Judicial Code (28 U; 8.0 Oa cas

Gnthe Supreme Court of the United States

OctToBER TERM, 1942

No. 455

WiiuiaM T. BRADFORD AND BEN F. Braprorp,

PETITIONERS

v.

Unitep STaTEs OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES OIROUIT COURT OF APPEALS FOR THE FIFTH

OIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The majority opinion in the circuit court of ap-

peals affirming the convictions (R. 458-466) and

the opinion of Circuit Judge Sibley dissenting in

part (R. 466) are reported at 129 F. (2d) 274.

The opinion of the circuit court of appeals on

petition for rehearing (R. 482-483) is not yet

reported.

JURISDICTION

The judgment of the circuit court of appeals

was entered July 9, 1942 (R. 467), and a petition

for rehearing was denied September 17, 1942

(1)

a

2

(R. 483). The petition for a writ of certiorari

was filed October 12, 1942. The jurisdiction of

this Court is invoked under Section 240 (a) of

the Judicial Code, as amended by the Act of

February 13, 1925. See also Rule XI of the

Criminal Appeals Rules promulgated by this

Court May 7, 1934.

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to sus-

tain the convictions.

2. Whether, where no prejudice is alleged or

shown by petitioners, the trial court erred in fail-

ing to set aside the verdict on motion in arrest

of judgment on the ground that James G. Rus-

sell, Jr., a qualified juror who served on the jury

which convicted petitioners, was not legally drawn

for jury service.

3. Whether reversible error resulted from the

refusal of the trial court to permit the witness

Moriarity to testify as an expert at the hearing

on petitioners’ motion for a new trial in order

to show that the computations offered by a Gov-

ernment witness at the trial were erroneous.

STATUTE INVOLVED

The mail fraud statute (Section 215 of the

Criminal Code, 18 U. 8. ©. 338) provides:

Whoever, having devised or intending to

devise any scheme or artifice to defraud, or

for obtaining money or property by means

of false or fraudulent pretenses, represen-

_

tations, or promises, * * * shall, for

the purpose of executing such scheme or

artifice or attempting so to do, place, or

cause to be placed, any letter, postal card,

package, writing, circular, pamphlet, or ad-

vertisement, whether addressed to any per-

son residing within or outside the United

States, in any post office, or station thereof,

or street or other letter box of the United

States, or authorized depository for mail

matter, to be sent or delivered by the post-

office establishment of the United States,

or shall take or receive any such therefrom,

whether mailed within or without the

United States, or shall knowingly cause to

be delivered by mail according to the diree-

tion thereon, or at the place at which it is

directed to be deliveréd by the person to

whom it is addressed, any such letter, postal

card, package, writing, circular, pamphlet,

or advertisement, shall be fined not more

than $1,000, or imprisoned not more than

five years, or both.

STATEMENT

Petitioners and Monte E. Hart were charged

in a 5-count indictment returned in the Western

District of Louisiana with using the mails in ex-

ecution of a scheme to defraud, in violation of

the mail fraud statute (supra) (R. 1-13). Count

1, and each of the other counts by reference to

that count, alleged that petitioners and Hart de-

vised a scheme to defraud which consisted of using

the political influence and official positions of peti-

aOR TS PUBINELEI oat TI

4

tioners to sell motor busses to the City of Alexan-

dria, Louisiana, at excessive prices, so that the

defendants would and did acquire unearned com-

missions and profits in the sum of approximately

$2,900 on two sales of busses to the city, one of

8 busses in October 1937 and the other of 4 busses

in July 1938 (R. 1-5). A separate mailing in

execution of this scheme was alleged in each count

(R. 5-18).

Petitioners were found guilty under count 1 of

the indictment and not guilty under the four re-

maining counts (R. 18). Motions for directed

verdicts, a new trial, and in arrest of judgment

were filed and overruled (R. 17-22, 31, 261, 391,

431, 449, 451-454). Petitioner William T. Brad-

ford was sentenced to imprisonment for a period

of 2 years; petitioner Ben F. Bradford to impris-

onment for a period of 3 years (R. 32-33). On

appeal, the circuit court of appeals affirmed the

conviction, Judge Sibley dissenting as to the con-

viction of petitioner William T, Bradford on the

ground that the evidence was insufficient to sup-

port the verdict against him (R. 466, 467).

1Hart committed suicide on September 7, 1940 (R. 50),

after the indictment was returned and before trial. He had

previously been convicted of using the mails to defraud

(Hart v. United States, 112 F. (2d) 128 (C. C. A. 5)), and

was also a co-defendant in the case of Weiss v. United States,

120 F. (2d) 472, rehearing denied, 122 F. (2d) 675 (C.C. A. 5),

certiorari denied, 314 U. S. 687. His suicide occurred

shortly before Weiss went to trial. See opinion below,

R. 459.

re

5

The Government’s case may be summarized as

follows :’

On June 7, 1937, when Victor M. Ake was Com-

missioner of Finance and Public Utilities of the

City of Alexandria, Louisiana, the city council,

composed of Mayor V. V. Lambkin and two com-

missioners (R. 262), authorized advertisements

for bids on 8 motor busses to replace 8 of the 12

Mack motor busses in operation in the city. The

specifications for the bids were prepared by Henry

Jones, foreman of the municipal shop for the

maintenance of busses (R. 61-62, 63-66, 69-70,

91-93). On July 6, 1937, the city received bids

from five different. companies, which were re-

ferred to Commissioner Ake for tabulation (R.

69-72, 94). Three of the bids submitted complied

with the specifications advertised, but were higher

than the alternative bid of $3,936.15 per unit re-

ceived from the General Motors Truck and Coach

Company and the bid of $4,973.54 per unit re-

ceived from the Dunnam Motor Company, Alexan-

dria, Louisiana (hereinafter called ‘‘Dunnam Mo-

tor’’), respectively, on busses which did not meet

the specifications (R. 69, 71, 102). All of the

bids, with the exception of the Dunnam Motor

and Roby Motor Company bids, were submitted

2 The evidence before the trial court and the circuit court

of appeals included numerous physical exhibits (R. 441)

which, we are informed by the Clerk of this Court, have not

been filed with the Court. For the most part, however, the

contents of the exhibits are revealed by the record.

6

by the manufacturers direct (R. 67, 68, 69, 71,

86-87). The indications, according to ©. L,

Hayne, a partner in Dunnam Motor (R. 217),

were that the Mack bid would be accepted (R.

219).

Commissioner Ake died on July 18, 1937 (R.

72, 266), and on July 20, 1937, petitioner Ben F.

Bradford was appointed by Earl K. Long, Acting

Governor of Louisiana, to take his place (R. 51-

52, 65, 266, 363). Bradford, who had been closely

associated with Mayor Lambkin for several years

(R. 282), took over the supervision of the city

transportation system, was primarily responsible

for the bus department (R. 225, 293), and wanted

to buy the Ford busses from Dunnam Motor (R.

295). Jones preferred the more than $1,000

chee.per General Motors model to the Ford busses,

but was not consulted concerning the purchase of

busses after Bradford became commissioner (R.

97, 98-100).

Negotiations for the sale of Ford busses to the

city were carried on principally by F. H. Ahrens

(R. 191, 192, 194, 207-208, 220), who had a half

interest in the profits of the Transit Bus Cor-

poration (hereinafter called ‘‘Transit Bus’’) (R.

184), a Ford dealer company which was financed

by its president, defendant Monte E. Hart, who

also was connected with the Hart Enterprise Elec-

trical Corporation (hereinafter called ‘‘Hart En-

terprise’’), and National Equipment Company

eV——

7

(hereinafter called ‘‘National Equipment’’) (R.

109-110, 172-181, 185, 197-198, 201). On several

occasions, Ahrens, Hayne, and Hughes, a repre-

sentative of the New Orleans branch of the Ford

Motor Company who gave Ahrens and Hayne

technical advice only (R. 111, 113, 138, 189), con-

ferred with the city council, composed of the

mayor, petitioner Ben F. Bradford and Com-

missioner Bringhurst (R. 111, 113-114, 220).

Commissioner Bringhurst did not remember see-

ing Ahrens, made no independent examination

with respect to prices other than to study the bids

submitted, and thought the city was dealing only

with Dunnam Motor (R. 313-314).

Ahrens also called on Mayor Lambkin, Hayne

of Dunnam Motor (who was a brother-in-law of

Mayor Lambkin’s son Charles (R. 286)), and

petitioners Ben F. Bradford and William T.

Bradford, who is Ben’s cousin (R. 191, 213, 217,

208, 209, 220, 366). Arrangements were made

whereby Transit Bus was to get three-fifths of

the profits and Dunnam Motor two-fifths or ap-

proximately 15 and 10%, respectively, on the

deal (R. 200).

Petitioner William T. Bradford was at that

time a member of the House of Representatives

of the State of Louisiana (R. 51) and Secretary-

Treasurer of the State Colony and Training

School (R .57-59), Ahrens had known him for a

number of years and, in collaboration with Monte

493330—42———-2

8

E. Hart, agreed to pay him approximately 5%

from the profits on the prospective bus deal for

using his influence in connection therewith (R.

191-193, 211). Petitioner William T. Bradford

kept Ahrens “posted on how things were going

up here” and “‘used his influence to help’’ Ahrens

‘sell the busses’’ (R. 193).

On one occasion, petitioner Ben F. Bradford,

Mayor Lambkin, Hayne and his wife, Charles

Lambkin and his wife, and Superintendent of

Busses Sid Pearce and his wife made a trip to

Dallas to investigate the Ford busses. They spent

several dollars riding around on the busses but

did not consult with the owners to determine what

service the busses were giving. Although the city

appropriated $100 for the expenses of the trip,

Commissioner Bradford paid the expenses of the

mayor, Mr. Pearce, and himself. (R. 380, 382,

383.) :

On September 7, 1937, the city council of Alex-

andria rejected all of the bids submitted on July

6 (R. 72-73), and on September 14, 1937, without

advertising for bids on new specifications, ap-

proved a resolution authorizing Mayor Lambkin

to purchase from Dunnam Motor 8 Ford motor

busses at $4,566.54 each, less tires to be furnished

by the city. The resolution stated that an extreme

public emergency required the immediate pur-

chase of the busses for the Municipal Bus System.

(R. 73-74, 81, 308.) No emergency in fact existed,

_

9

for the Mack busses then in operation in the city

could have been continued in service for at least

another year (R. 96, 104).

By a check dated October 25, 1937, the City of

Alexandria paid Dunnam Motor $36,532.32 for the

8 busses, less tires (R. 74+75, 222, 246-247, 322, 323,

378), of which amount Dunnam Motor paid Tran-

sit Bus $34,429.02 by a check drawn on the Guar-

anty Bank and Trust Company, Alexandria,

Louisiana (R. 222). This latter check was en-

dorsed by Ahrens and Hart and deposited in the

Whitney National Bank, New Orleans, Louisiana,

to the account of National Equipment, and was

sent through the mail to the Guaranty Bank and

Trust Company on October 26, 1937, for collection

(R. 161, 172-173, 195), and it is this mailing

which is the basis of Count 1 of the indictment

(R. 5). Transit Bus paid the Ford Motor Com-

pany $27,674.32 for the 8 busses (R. 175-176, 194-

195), which, minus $777.84 refunded by the Ford

company to Dunnam Motor as. excise tax after

city officials executed exemption certificates there-

for (R. 119, 122-123, 124, 126, 143, 222-223), left

$26,896.48 as the cost of the 8 busses, including

transportation and charges for extra equipment,

but without tires (R. 114, 119, 141-142, 245).°

* The city contracted for the tires separately (R. 224) and

at least $684 additional was later spent on the busses to

change the generators, compressors, and seats (R. 301-302,

350-354).

ae SERENE — —

10

The City of Alexandria therefore paid $9,635.84

over and above the actual cost of the busses, in-

cluding the excise tax of $777.84 which was re-

funded to Dunnam Motor but was never repaid

to the city (R. 82, 124-125, 144, 255). Figured

on a commission basis, this was a profit to the sell-

ers of 27.94% (R. 244-248), which, there was evi-

dence to show, was excessive. Transit Bus could

have sold direct to the City of Alexandria instead

of splitting the profits from the sale with Dun-

nam Motor (R. 127).° Hayne testified that he

would have liked to see the deal go through even

if his company, Dunnam Motor, were to receive

no profit from it (R. 229-230). The witness

Hunt, of the Transit Bus Sales Division of the

Bull-Stewart Equipment Company, Dallas, Texas,

to which the business of Transit Bus was later

transferred (R. 332),° testified that -‘If we can

make ten per cent [profit] we are tickled to death

with it’? (R. 335). Ahrens testified that if the

City of Alexandria had asked him to cut $2,000

‘It appears that the bid prices customarily include the

excise tax and that the excise tax refund should have been

paid to the City of Alexandria. See R. 107, 121, 124-125,

143.

° The Ford Motor Company might itself have sold direct

to the city, but probably would not have done so because it

had a dealer (Transit Bus) for the city (R. 145, 149, 150-

154).

* The total business transacted by Transit Bus consisted of

the sale of 12 busses to the City of Alexandria and the sale

of 3 busses to the Shreveport Railway Company (R. 202-

203).

we

11

off the price he would have accepted the deal and

would also have taken care of petitioner William

T. Bradford’s 5% commission (R. 215).

From the profit on this transaction, Monte E.

Hart, on December 10, 1937, drew a check for

$2,000 with which to pay petitioner William T.

Bradford the promised commission for using his

influence in the deal. On the same date Ahrens

cashed the check and paid Bradford $2,000 in

cash at Ahrens’ office in New Orleans. (R. 198-200,

204, 213, 215-216.) The $2,000 was never remitted

to the City of Alexandria (R. 86).

Hight months later, on June 6, 1938, the city

council, without advertising for bids, approved

another resolution authorizing the mayor to pur-

chase 4 more busses from Dunnam Motor at

$5,136.20 each to replace the remaining 4 old

busses; this resolution also stated that an extreme

public emergency required the purchase of the

busses for the Municipal Bus System (R. 76-79,

81, 100, 308-309). The contract for the purchase

of the 4 busses had been made on May 16 (R. 80),

and petitioner William T. Bradford assisted

Ahrens in effecting this deal (R. 213). The total

cost to Transit Bus of each of these busses, with

less extra equipment than was included with the

busses sold in the first deal, had increased $80.39

over the September 1937 unit cost (R. 254), but

the price at which the mayor was authorized to

buy the 4 busses was increased by $569.66 per

12

unit, making a net unexplained increase of $489.27

per bus, or a total of $1,957.08.

On July 5, 1938, the City of Alexandria paid

Dunnam Motor $20,544.80 for the 4 busses (R. 225,

249, 250). Dunnam Motor remitted $17,534.70 of

this to Transit Bus (R. 225, 249, 250), and, for the

4 busses plus extra equipment and transportation,

Transit Bus paid the Ford Motor Company $14,-

167.44, of which the Ford company refunded

$397.64 as excise tax, leaving a net total of $13,-

769.80 (R. 123-125, 141, 142, 143, 177, 180, 200-

201, 248-249). The profit to the sellers on this

deal was, therefore, $6,775.00, or 33.73% figured

on a commission basis, including the $397.74 ex-

cise tax refund which was never repaid to the

City of Alexandria (R. 248-251, 255). The profit

on the two bus deals thus averaged 29.87% per

unit.

Shortly after the consummation of this trans-

action, Hayne of Dunnam Motor paid petitioner

Ben F. Bradford $900 in cash for having brought

about the two bus deals (R. 225-228, 235). The

$900 was never remitted to the city (R. 82).

Later, on Christmas Day 1939, petitioner Ben F.

Bradford told H. H. Harris, foreman of the

Rapides Parish Grand Jury, that Mayor Lamb-

kin had received $2,000 on the transactions but

that this could not be proved and that some of

Mayor Lambkin’s ‘‘kinfolks’’ were down before

the grand jury ‘‘telling off on him’’ (R. 388-390).

13

ARGUMENT

I

There clearly is no merit in petitioners’ con-

tention that, for the reasons discussed below, the

evidence was insufficient to support the verdicts of

guilt returned against them under the first count.

1. Petitioners assert that no fraud was perpe-

trated upon the City of Alexandria, because “‘the

testimony of all the witnesses * * * estab-

lished conclusively that it was impossible for the

City to have bought these busses any cheaper;

that they could not have been bought directly from

the factory, and that the prices paid were exceed-

ingly reasonable’ (Pet. 9-10).

In the first place, the question as to the reason-

ableness of the prices the city paid for the 12

busses is not conclusive of the question whether a

fraud was perpetrated upon it. The scheme

whereby petitioner Ben F. Bradford derived a

secret profit of $900 from the bus deals in viola-

tion of his fiduciary position as commissioner of

the city was a fraudulent scheme under the mail

fraud statute. Pandolfo v. United States, 128 F.

(2d) 917 (C. C. A. 10), certiorari denied, October

12, 1942, No. 223, this Term; Glover v. United

States, 125 F. (2d) 291 (C. ©. A. 5), certiorari

denied, May 25, 1942, No. 1158, October Term,

1941; United States v. Groves, 122 F. (2d) 87, 90

(C. C. A. 2), certiorari denied, 314 U. S. 670;

Leche v. United States, 118 F. (2d) 246 (C. C. A.

—————— SR

em

14

5), certiorari denied, 314 U. S. 617; Shushan v.

United States, 117 F. (2d) 110, 115 (C. C. A. 5),

certiorari denied, 313 U. S. 574; United States v.

Buckner, 108 F. (2d) 921, 926, 927 (C. C. A.

2), certiorari denied, 309 U. S. 669. The city

was further defrauded when Ahrens promised and

paid petitioner William T. Bradford a commission

of $2,000, an amount which Ahrens would have

deducted from the sale price of the busses if the

city had been aware of the agreement to pay the

commission (R. 215).

Secondly, it is apparent that, contrary to peti-

tioners’ contention, the evidence, summarized in

the Statement (supra, pp. 5-12), supports a find-

ing that the scheme to defraud contemplated, and

resulted in, charging the city excessive prices for

the busses. Up to the time petitioner Ben F,

Bradford became a city commissioner, the indica-

tions were that the Mack bus bid would be ac-

cepted. Thereafter, the Ford busses, which did

not meet the specifications advertised, were pur-

chased without readvertising for bids on new

specifications and upon the false declaration that

an extreme public emergency existed. There was

no investigation of other busses, including the

General Motors model which was bid at approxi-

mately $1,000 less than the price bid for the Ford

bus. No effort was made to buy direct from the

Ford Motor Company, despite the fact that other

manufacturers customarily sold direct to munici-

15

palities. Instead of dealing direct with Transit

Bus, as it might have done, the city council nego-

tiated with both Transit Bus and Dunnam Mo-

tor—the representatives thereof being Hayne, a

brother-in-law of Mayor Lambkin’s son, and

Ahrens, salesman for Monte E. Hart, who was

engaged in large scale schemes to defraud—and

the prices agreed upon for the first lot of busses

resulted in a profit of approximately 15% to

Transit Bus, $2,000 of which was given to peti-

tioner William T. Bradford, and about a 10%

profit to Dunnam Motor, which would have fore-

gone any profit if necessary to make the deal.

The evidence showed that 10% would have been a

reasonable profit on the deals. For no apparent

reason, the profit to the sellers on the second deal

was increased $489.27 per bus, or a total of

$1,957.08, over the September 1937 price, and this

was brought about in July 1938 by resolution of

the city council declaring the existence of an ex-

treme public emergency rather than by advertis-

ing for bids, for which they had had ample time.

2. Petitioners state that ‘‘there was nothing to

show that W. T. Bradford and Ben F. Bradford

were associated in this deal, but on the contrary

that they were personally and politically opposed

one to the other, and that W. T. Bradford did not

undertake to influence any of the City Commis-

sioners in the deal that was made” (Pet. 10).

We construe this as a contention that the evidence

= ESL AS LILLE LLL IIE LOE AOI LE EEL IME AIL II PR RN OE

16

was insufficient to show guilty knowledge or con-

duct on the part of petitioner William T. Brad-

ford and as a tacit admission that, if a scheme to

defraud existed, Ben F. Bradford participated in

it—an admission which is adequately supported

by the record (supra, pp. 5-12).

The very fact that petitioner William T. Brad-

ford was offered such a substantial commission as

5% of the profits on the first bus deal merely for

using his influence (R. 191-193, 211) should have

put him on notice that the deal was shady.

Ahrens testified that petitioner William T. Brad-

ford did in fact use his influence in connection

with the sale of the Ford busses to the city and

that he kept Ahrens posted on how things were

going (R. 193), thereby participating in the

erime. To have used his influence on the deal

and kept Ahrens posted, William T. Bradford

must have contacted Ben F. Bradford and Mayor

Lambkin and must have known of the scheme to

defraud. He received $2,000 of the fruits of the

crime, and he received it in cash at Ahrens’ office

in New Orleans—implying a covertness inconsist-

ent with dissociation from the scheme to defraud.

This evidence was sufficient to show guilty knowl-

edge’ and was properly submitted to the jury.

7 Cf. Wilson v. United States, 162 U. S. 613, 619; Dunlop

v. United States, 165 U. S. 486, 502-503 ; McNamara v. Hen-

kel, 226 U. S. 520, 524-525; Husten v. United States, 95 F.

(2d) 168 (C. C. A. 8); Girson v. United States, 88 F. (2d)

358, 361-362 (C. C. A. 9), certiorari denied, 301 U. S. 697;

ee

17

Cf. Glover v. United States, supra; United States

y. Groves, supra; Shushan v. United States, swpra.*

3. Petitioners take the position that the mailing

charged in count 1 of the indictment (R. 5-6)

was not in furtherance of the scheme to defraud,

because the evidence shows that ‘‘the deal’? had

been consummated before the mailing (Pet. 7-8).

The mailing occurred on October 26, 1937, when .

the Whitney National Bank, New Orleans, Louis-

iana, forwarded to the Guaranty Bank and Trust

Company, Alexandria, Louisiana, for collection,

Bruce v. United States, 73 F. (2d) 972 (C. C. A. 8); United

States v. Di Carlo, 64 F. (2d) 15, 17 (C. C. A. 2); Nieder-

luecke v. United States, 47 F. (2d) 888, 889 (C. C. A. 8);

Wilkerson v. United States, 41 F. (2d) 654, 657 (C. C. A. 7),

certiorari denied, 282 U.S. 894; Drew v. United States, 27 F.

(2d) 715, 716 (C. C. A. 2) ; Rosen vy. United States, 271 Fed.

651, 655 (C. C. A. 2); Wolf v. United States, 290 Fed. 738,

744-745 (C. C. A. 2) ; Lindsey v. United States, 264 Fed. 94,

96 (C. C. A. 4), certiorari denied, 252 U.S. 583; Degnan v.

United States, 271 Fed. 291 (C.C. A. 2).

* Petitioners complain of the following statement of the

circuit court of appeals contained in its opinion on petition

for rehearing: “No man can be compelled to be a witness

against himself, but sometimes in the progress of a trial the

burden of going forward with the evidence may require the

accused to produce testimony for himself or suffer an infer-

ence of guilt from facts already proven to be drawn against

him by the jury” (Pet. 11-12). The court below expressly

repudiated petitioners’ contention that it meant that an in-

ference of guilt might be drawn from petitioner William T.

Bradford’s failure to testify (R. 482) and it is clear that the

court had in mind the cases (see note 7 supra) holding that

unexplained possession of the fruits of a crime are prima facie

evidence of guilt or guilty knowledge (R. 465, particularly

n. 4).

—_ ERNE ALTE ATTEN RE LIE IE ES OE PEE I LI IEF

NELEEOP SA 8 Ser

18

the check drawn on the Guaranty Bank and Trust

Company by Dunnam Motor in favor of Transit

Bus in payment of Transit Bus’ share of the pro-

ceeds from the first bus deal (supra, p. 9).

The indictment charged and the proof showed

the devising of a fraudulent scheme to secure

secret profits from two sales of busses to the city,

* one in September 1937 and the other in July 1938,

at excessive prices (supra, pp. 5-12). Since peti-

tioner William T. Bradford received his $2,000

profit on December 10, 1937, and petitioner Ben

F. Bradford his $900 profit in July 1938 (supra,

pp. 11, 12), the scheme to defraud had not termi-

nated in October 1937 and the mailing of the

check, which was intimately connected with the

distribution of the fraudulent proceeds, was in

furtherance of the scheme. Tincher v. United

States, 11 F. (2d) 18, 21 (C. C. A. 4), certiorari

denied, 271 U. S. 664; ef. McDonald v. United

States, 89 F. (2d) 128, 133-134 (C. C. A. 8),

certiorari denied, 301 U. S. 697; Laska v. United

States, 82 F. (2d) 672, 677 (C. C. A. 10), certio-

rari denied, 298 U. S. 689; Skelly v. United States,

76 F. (2d) 483 (C. C. A. 10), certiorari denied,

295 U. S. 757.’

II

Petitioners contend that fatal error resulted

from the overruling by the trial court of their

® The cases cited by petitioners in this connection (Pet.

8-9) are all factually distinguishable from the instant case.

BESS LESTE LEE ICLP LE OE GT, IN RE Oe TOE EB ae

a

19

motion in arrest of judgment (R. 31) based upon

the ground, first raised by motion to reopen and

for rehearing after the overruling of a motion for

a new trial (R. 23-30), that one of the jurors,

James G. Russell, Jr., was not legally drawn for

jury service (Pet. 12-13). The contention is

predicated upon a showing that the name “James

G. Russell’? was drawn by the jury commissioner,

that James G. Russell, Jr., was summoned and

served on the jury, and that there are two James

G. Russells, father and son, who are commonly

known and sign their names as “James G. Rus-

sell’’ and “‘ James G. Russell, Jr.,’’ respectively (R.

23-29) .”°

It is impossible to assume conclusively, from the

showing made by petitioners, that the James G.

Russell drawn for jury service was not the same

one who was summoned and actually served on the

jury. Even if the assumption be made, however,

it is apparent that the mistake was merely a tech-

nical error which did not affect the substantial

rights of petitioners, for they make no contention

that James G. Russell, Jr., was not a qualified

juror or that they were prejudiced by his service

on the jury which convicted them. Under the cir-

cumstances, the error, if such it was, is not fatal.

Section 269 of the Judicial Code (28 U. S. ©.

* The record does not show that “James G. Russell” was

the name drawn and that “James G. Russell, Jr.,” was sum-

moned, but apparently these facts were revealed in the files

of the trial court.

q 23 SERENE RIN, AEE OE

a LIER GPS IOLEL IL LLESEE ELL EL ELALELLELACIE EL I

—

20

391) ; ef. Morris v. United States, 112 F. (2d) 522,

527 (0. C. A. 5), certiorari denied, 311 U. S. 653;

Chadwick v. United States, 141 Fed. 225, 243-245

(C. C. A. 6); Bush v. United States, 16 F. (2d)

709, 711 (C. C. A. 5); Hoyt v. United States, 273

Fed. 792, 799 (C. ©. A. 2).

III

Petitioners also make the contention that the

trial court erred in refusing to permit the wit-

ness Moriarity to testify as an expert at the hear-

ing on their motion for a new trial (Pet. 13-14),

This witness was offered to show that the break-

down as to the costs of the busses, made and sub-

mitted in evidence at the trial by Government wit-

ness L. O. Taylor (R. 244-254), was erroneous

(R. 419, 423). Moriarity was present at the trial,

listened to Taylor’s testimony, and afterwards

made a cost break-down of his own, figuring the

extras in a manner unwarranted by the evidence

at the trial and arriving at a lower percentage of

profit on the bus deals than had Taylor (R. 412-

418, 420-422). The court heard Moriarity ’s testi-

mony off the record and refused to receive it in

evidence on the grounds that ‘‘the price basis upon

which he calculates would not be applicable”’ and

that ‘‘It has not been shown that his experience

would permit him to testify to a transaction of

this peculiar nature”’ (R. 422-423; cf. R. 418-

419).

21

Whether Moriarity was in fact qualified as an

expert, as petitioners contend (Pet. 14), is imma-

terial here. The disposition of the motion for a

new trial rested in the sound discretion of the

trial court (Weiss v. United States, 122 F. (2d)

675, 691 (C. C. A. 5), certiorari denied, 314 U. S.

687; Jordan v. United States, 120 F. (2d) 65, 67

(C. C. A. 5), certiorari denied, 314 U. S. 608;

United States v. Holt, 108 F. (2d) 365, 369

(C. C. A. 7), certiorari denied, 309 U. S. 672, re-

hearing denied, 309 U. S. 698; Sanchez v. United

States, 108 F. (2d) 735, 736 (C. C. A. 5), certio-

rari denied, 309 U. 8. 679; Smith v. United States,

106 F. (2d) 726, 727 (C. C. A. 4)) and the denial

of the motion will be reviewed only for abuse

of discretion (United States v. Hartenfeld, 113 F.

(2d) 359, 362 (C. C. A. 7), certiorari denied, 311

U.S. 647; United States v. Dressler, 112 F. (2d)

972, 976 (C. C. A. 7); United States v. Holt;

supra. See also, Fairmount Glass Works v. Coal

Co., 287 U. S. 474, 481). Since the cost break-

down offered through Moriarity was not newly

discovered evidence and there is nothing in the

record to show that it was so material that it prob-

ably would have produced a different verdict,” it

" The record does not reveal the precise difference between

the cost break-downs of Taylor and Moriarity. However,

there was evidence at the trial to show that the percentage

of profit to the sellers was 20% above a reasonable profit

(supra, pp. 10-11, 12), whereas Moriarity’s break-down, fig-

uring extras differently, could hardly have changed the per-

centage more than 5%, if that.

22

is clear that the trial court did not abuse its dis-

cretion in denying the motion for a new trial and

that, therefore, the refusal to receive Moriarity’s

break-down in evidence was not error. See Weiss

v. United States, supra.

CONCLUSION

The case was correctly decided below and no

conflict of decisions or important question of law

is involved. We therefore respectfully submit

that the petition for a writ of certiorari should be

denied.

CuHaRLEs Fany,

Solicitor General.

WENDELL BERGE,

Assistant Attorney General.

Rosert 8. Erpadt,

Metva M. GRANEY,

Attorneys.

_NoveMBer 1942.

U. 6. GOVERNMENT PRINTING OFFICE, 1948

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