Petition for Writ of Certiorari — Travers v. United States

4

JOHN F. “DAMS, CLERK .

ve See

| Supreme Court tte Rated aes

_ OcToBER TEE, 1966

JOSEPH L. TRAVERS,

PETITIONER,

&

ea.

UNITED STATES OF AMERICA, .

RESPONDENT.

PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF .

‘APPEALS FOR THE FIRST CIRCUIT

Bee Epear L. Keuuey |

: Water J. Hurtey

10 Post Office Square

\ », Boston, Massachusetts

~ Counsel for Petitioner >

Blanchard Press, Inc., Boston, Mass. — Law Printers

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| Table of Contents | . AS

. oor ea Brae Page.

. Citation to Opinion Below ees eae re 1

_o urisdiction ...... oO EO Ee Prey etree. ee

Questions Presented .......... Poke eerie aga

MON II 2 32s Siw less clea rials: ae.

Statement of Facts .... 0 .:......... SP ane. A ec

Reasons for Granting Es bank ees cn sus eeu: oe

CIID © 5 i vc pee esa tienes) A Pie Ma a cae 5

Appendix A —

Opinion of the Court of Appeals for the First Circuit

in Joseph L. ‘Travers, Defendant, - Appellant, v.

United States of America, Appellee. ............ 6

: apie or AuTHoriTIES CITED ~

. a 3 | ‘ . | :

Cases

‘Tot v. United States, 319 U.S. 463 ...... pie: See es,

United States v. Romano, 382 U. §. 136 ............ 5.

- “Statutes

‘

ed 28 USC §1254(1) Ponies Meas a ae

aan 7 ST USC WT ....... 26... -+\, Bare th pas Tee : 2,4

Z . BR ie kad ay an Parad ant. .. 8, 4

& | : Constitutional Provisions

¥ 3

United States Constitution: : - |

Fifth Amendment ................... ery Oma 3

__—Fourteenth Amendment ...... wee ee ee: Pa ia aa ag

on i the

No. | pee cab.

7 . . ‘

ee

——

JOSEPH L. TRAVERS,

; pte on PETITIONER, sore

Us

~ UNITED. ae OF te. jo

; RESPONDENT. —

- PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS 5 FOR THE FIRST CIRCUIT

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“¢

“ <o entitled case on June 3, 1966.

. aera ‘ ie - Citation To Opinion biaee

‘dix A hereof. Ry

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Pen om . ; >

_ Srapreme Court uf the Huited 2 Sees :

Ocrossr : Ten, 1966 . pate 1

AN J neil L. Travers, petitioner, prays that a. writ of cer-

- -« tiorari issue to, review the judgment of the United States —

-» Court’ of Appeals for the First Circuit entered in _— above

The opinion of the Court of Appeals ir’ the First Cir-

\ cuit is reported i i UK 2d ani we is printed i in Appen-

rae, Y

, - °

° ‘ . 9 ,

.

‘Jurisdiction

ioe <*

The Julipmént of the Conrt of: ‘Appeals was dabei on

June 3, 1966. The jurisdiction of this Court is invoked ‘under.

eek: Title, 28, United States Code, section 1254 1).

Quéstions Presented « 2

o*.:° >

1... Did the Court: of Appiele err in affirming a judg-

‘thent: of conviction rendered on an. indictment which was

based in part om a statute held by the Court of Appeals to

be purely civil in nature?

5. Did the Court of ‘seit err in affirming a judg-

ment of conviction: rendered on an indictment which was

based in part on a statute held by the Court 6f Appeals

‘to be purely civil in nature, but which statute makes evi-

dence of any payment by a: subcontractor to an [em-

ployeé] of a prime contractor the basis for a conclusive

presumption that the cost of such a. paymient was ul-

ies borne » by the United States? -

Ws

2 cae ‘Statutes Involved : y.

"Title 41, United wien: Came, Section 51 provjdes' in part

as follows:

; eine “<The payment of any fee, commission, or compen-

sation of any kind or the granting of any gift or gra-

tuity of any kind, either directly or indirectly, by or

on behalf of a subcontractor, as defined in section

§2-of this title, (1) to any officer, partner, employee,

or agent of a. prime ‘contractor holding “a negotiated

contract entered-into by any department, agency, or:

establishment of the United States for the furnishing

.8

3 |

. of supplies, materials, equipment or ‘services of any

kind whatsoever, or to any such prime contractor or.

- (2) to any officer, partner, employee, or agent, of- ae

higher tier subcontractor holding a subcontract under .

the prime contract, or to any such subcontractor. either

as. an inducement for the award of a subcontract or

order from the prime contractor. or any subeontrac-

. tor, or as-an acknowledgment of a subcontract or

award previously, awarded, is prohibited . .. The.

amount of any such fee, ¢ cost, or expense shall be re-

. eoverable on behalf of the United States from the -°

_ Subcontractor or the récipient thereof by setoff of.

moneys otherwise owing to the subcontractor either —

directly by the United*States, or by a prime contrac-

' tor under any contract or by an ‘action in an appro-

priate court of the United States. Upon a showing

that a subcontractor patd fees, commissions, or com-

pensation er granted gifts. or gratuities to an officer,

partner, employee, or ‘agent of @ prime contractor or

of another higher tier subcontractor, in connection: %

with the award of a_subcontract-or order. thereunder, . |

it. shall be concluswely presumed that the cost, of such -

_ expense was included in the. price of ‘the subcontract

_ or order and ‘ultimately barne by the United States... .s

(Emphasis supplied). 4 -~ »%

Title 41, United States om Section 54 provides as fol-

lows: - set i Bates eige

. “a person a. shall aiiagl. Pe or’ in-

directly, make -or receive: any such prohibited pay-

ment shall be fined not more than $10,000 or be im-

prisoned for not more than two years or both.”

4 ee

Statement of Facts Dae

- The appellant, Joseph L. Travers, was indicted for vio-

lation of Title 4T; United States Code, Sections 51-54. (RA.

4a) The appellant seasonably moved to dismiss the indict-

ment on the ground that the provisions of Title 41, United. |

States Code, Sections 51-54 are unconstitutional and thus a

trial and conviction under these provisions would deny him '

' his rights under the Fifth and Fourteenth Amendments to

the United States Constitution (RA. 1a, 2a) The appellant’ Ss.

ei motion to.dismiss the indigtment was denied (RA. 2a) and

the appellant was ‘subsequently convicted of the-charge. in”

the United States District Court for the District of Massa- -

chusetts, and was sentenced to imprisonment for four

-months-and to pay a fine of $2,500 (RA. 3a). The appellant

seasonably filed his notice of appeal (RA. 3a). Pending this _ .

appeal the appellant is not presently confined and he re-. _

mains frée upon his personal recognizance,

- Reasons For Granting The Writ

1. The decision of the Court of site on the issue

_of the applicability of §51 of Title 41; United States Code,

raises an issue of national importance in contracts and

subcontracts on work for the federal. government since it

fails to acknowledge that §51 was enacted originally so.

as to apply and to ‘‘cost plus fixed fee’’ contracts and

does not acknowledge the difference in ‘application when

applied toa meee contract.

2. The decision of the Court of Appeals sustains a con-

viction under an indictment which was expressly based

upon §51 which contains ‘a’ conclusive. presumption but

which the Court holds is purely civil in nature so that the

grand jury relied-on a civil statute in returning a criminal :

charge. Se" bead

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3. The decision of the Court of Appeals sustains a con-

_Viction based on-indictmént predicated in part on a con-

’ elusive presumption statute in conflict with the decisions

of this Court in Tot v. United States, 319 U. S. 463 and

United States Vv. mane, 382 U.S. tei

\ .

Conclusion

’ For the foregoing reasons this petition for a writ of

certiorari — be granted.

a Respectfully submitted,

Epear L. Kevuey

Water J. Hurtey

Counsel for Petitioner °

10 Post Office Square

Pee , Boston, Massachusetts

wt g

8

No. 6687.

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_ statute is the Anti-Kickback Act, 41 U.S. C. § 51-54) .

Appendix A

Unrrep Srates Court or ApPEaLs-

For tae Fist Crmovrir

JOSEPH L. TRAVERS,

DEFENDANT, APPELLANT, _

‘4 Aa; *.

UNITED STATES OF AMERICA,

APPELLEE.

' APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

‘ ‘ e

_, Before Aupricu, Chief Judge,

-McEntez and Corrin, Circuit Judges.

Edgar L. Kelley, with whom Walter J. Hurley was on brief, for

appellant.

John Paul Sullivan, Assistant U. S. Attorney, with whom W. Arthur

Garrity, Jr., United States Attorney, was on brief, for appellee.

_ OPINION OF THE COURT.

June 3, 1966.

‘Caine, Circuit Judge. Defendant was indicted and con-

' vieted for having paid, as an officer of a subcontractor, a

, fee or gratuity to a purchasing agent of a prime contractor

as an inducement for, or acknowledgement of, subcontract

awards on work for the federal government. The relevant

“4 The Act, as it relates to this case, may-be broadly summarized -

as follows: -

Section 51 prohibits payment of any gratuity on behalf of a sub-

contractor to an agent of a contractor “holding a negotiated contract”

with a United States agency: It prohibits including such a gratuity

ee a or om

-_

7

_ Defendant’s sole contention is that Section 51. ‘‘is.on its

face unconstitutional in that it purports to create a federal

- erime predicated upon an irrebuttable presumption [of

loss to the government], with no rational connection in |.

common experience. between the fact proved and the ulti-

‘miate fact conclusively presumed.’’ His basic argument is ©

‘that such a connection did exist under the original version

of Section 51 (60 Stat. 38) as enacted in 1946, which applied.

only to cost-plus-a-fixed-fee or -cost reimbursable contracts.

Under this version, there was a logical linkage between

kickbacks and inflated costs to the government. But with

the substitution in 1960 (Pub. L. 86-695) of the word |

‘‘negotiated’’ for the ‘‘cost-plus-a-fixed-fee’’ and ‘‘other

cost reimbursable basis’’ language, argues defendant, there

is no longer any reasonable inference that a kickback is _

ultimately borne by the government. Tot v. United States,

1943, 319 U.S. 463, and United States v. Romano, 1965, 382

U.S. 136, both involving rebuttable presumptions in crimi- _ _

nal cases, are vate as authority for’ the auppenee flaw in *

this case. :

We do not reach the. question of the validity of the con- .

clusive presumption, because it seems clear to-us that

Section 51-is solely concerned with civil remedies.. Section

action, and withholding from sums otherwise due the subcontractor.

It also specifies: “Upon a showing that a subcontractor paid fees, com-

missions, or compensation or granted gifts or gratuities to an officer,

partner, employee, or agent of a prime contractor or of another higher

tier subcontractor, in connection with the award of a subcontract or

order thereunder, it shall be conclusively presumed: that the cost of

such expense was included in the: price of the subcontract pr order

and/ultimately borne by the United. States.”

Section. 52 consists of definitions .of terms. “Negotiated contract”,

_ is defined to mean “made without formal advertising”.

Section 53 gives the General Accounting Office power to audit

books of contractors and subcontractors. © .

Section 54. states: “Any person who shall knowingly, directly or

inditectly, make or receive any such prohibited payment shall be fined

not both than $10,000 or be imprisoned for not more than. two years,

or Dot -

8

54, a criminal statute, by referring to “such prohibited

payment’’, merely incorporates the definitions of pro-.

-seribed kickbacks and no other provisions. As we have.

_ pointed out elsewhere, this crime of bribery stands by it-

self and does not depend ‘on subsequent actions. Specifi-

eally, it is not necessary that the government be financially

harmed. Howard v. United States, 1 Cir., 1965, 345 F.2d

126,128, cert. denied, 382 US. 838. Not only does a:read-

ing of 41 U.S.C..51-54 indicate a clear distinction between

civil and criminal sanctions, but both legislative history

- ~- and subsequent interpretation confirm such a reading.

. In supplying requested: comments’ on the proposed 1960

amendment to the House Committee on Government Oper-

ations, the Acting Deputy Attorney General recognized

that the question of rational connection between the pre-

sumption and a kickback could be raised if fixed-price con-

tracts were brought within the reach of the statute. That -

this question relates only to civil actions wala: made clear

‘by the context of the letter, for the paragraph” containing

the above observation begins with this sentence: ‘‘The

’ keystone of the civil liability created by the statute-is the

‘conclusive presumption’ that any such payment was in-

eluded in the price of the subcontract and was ultimately

borne by the United States.’’ U.S. Code Cong. & Ad. News,

86th Cong. 2d Sess., 1960, -p. 3304.2 This letter was specifi-

eally referred to in the Housé ent on the 1960 amend-

ments. Id. at 3293. ‘

Moreover, as long-ago as 1955, the court in United States

v. Davio, E.D. Mich., 1955, 136 F. Supp. 423, 429 stated:

‘‘Section 1 of the Anti-Kickback. Act, which is the only

section under consideration, is civil in’ aa.

. 2 While counsel for defendant saw fit to include the first point of the

Department of Justice letter’ in his brief, he chose to ignore the

language last er. Counsel for the government did not repair the

defect.

9

The district judge was careful to avoid any reference to -

the presumption in his charge, which defendant’ s counsel

commended. Defendant asserts, without apy substanti-

ation, the possibility of prejudice by reason of an improper

consideration of the presumption by the grand jury. In-

dictments are not so easily to be impeached F conjecture. |

Affirmed.