Opposition Brief — Gottfried v. United States

Supreme Court brief1948

Ask Donna

What actually matters in this document.

Text

SEND QUUGURIOE . 6 ooo cn ctctnececnccndesecsnssensecs

PPR

CITATIONS

Ballard v. United States, 329 U. 8. 187_____.____---_-__-

Braverman v. United States, 317 U. 8. 49____._--__-._---

Hiraboyashi v. United Staies, 320 U. 8. 81__..__-_-._--_-

Lewis v. United States, 279 U. S. 63_____-__------------ 7,

Marzani v. United States, No. 9595, decided February 2,

1948 (App. D. C.)_--_-- a hinini sonia oud mage 26, 28, 29, 30,

Pinkerton v. United States, 328 U. 8. 640___._..-....-._--

Ruthenberg v. United States, 245 U. S. 480__.-____--_----

Thiel v. Southern Pacific Co., 328 U.S. 217_....__--__-_--

United States v. Gilliland, 312 U. 8S. 86_._-.--.--.---.---

United States v. McElvain, 272 U. 8. 633___--.--.--.----

United States v. Noveck, 271 U. 8. 201__----.-----------

United States v. Scharion, 285 U.S. 518__._-------------

oNBS

SRSISuNe

Statutes:

Act of August 24, 1942, 56 Stat. 747, as amended by Sec-

tion 19 (b) of the Contract Settlement Act of 1944, 58

Stat. 667, and Section 28 of the Surplus Property Act,

58 Stat. 781, 18 U. S. C. 590a___....---.-..--.--.. 2, 26, 33

Contract Settlement Act of 1944, 58 Stat. 667, Séc. 19 (b),

Pht biecs chk dnend end nanan sks cavdeecchebae 30, 31, 32

Criminal Code:

90 Cong. Ph PICA. acibacicinkichd shecnenkoancnuaw 33

PR, SND. MOOG anda ecnksmedsessaccncsaceccunts 33

H. Rep. No. 1590, 78th Cong., 2d Sess..-...-.------- 31

S. Rep. No. 836, 78th Cong. 2d Sess__...-....---.--- 32

S. Rep. No. 1057, 78th Cong. 2d Sess__-_-.-...------ 33

777466—48——_1 qa)

Ynthe Supreme Courtof the Wnited Stutes

OctToBEeR TERM, 1947

No. 561

HaroLpD GoTTFRIED AND PurE Rock MINERAL

SprinGs CoRPORATION, PETITIONERS

UnitTep States oF AMERICA

No. 562

HaroLD GOTTFRIED, JOSEPH F'ORMAN AND

WILLIAM STANTON, PETITIONERS

UnitTep States oF AMERICA

ON PETITION FOR WRITS OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT 4

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the circuit court of appeals

(R. 2462-2474) has not yet been reported.

(1)

JURISDICTION

The judgments of the circuit court of appeals

were entered January 2, 1948 (R. 2474-2475).

The petition for writs‘of certiorari was filed Jan-

uary 30, 1948. 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 Rules 37 (b) (2) and 45 (a), F. R.

Crim. P.

QUESTIONS PRESENTED

1. Whether the grand and petit jurors were

summoned in conformity with Section 277 of the

Judicial Code.

2. Whether petitioners were denied a fair trial

because of the alleged misconduct of a juror who

was excused before the case was submitted to the

jury.

3. Whether the trial judge erred in finding that

petitioner Stanton’s statement of June 16, 1945,

was voluntarily made.

4, Whether a prosecution under the False Claims

Statute is for defrauding the United States within

the meaning of 18 U. §, C. 590a.

STATUTES INVOLVED

Section 277 of the Judicial Code (28 U.S. C.

413) provides:

Jurors shall be returned from such parts

of the district, from time to time, as the

court shall direct, so as to be most favorable

to an impartial trial, and so as not to incur

an unnecessary expense, or unduly burden

eaamercecs a:

~ the citizens of any part of the district with

such service.

Section 37 of the Criminal Code (18 U. S. C.

88) provides:

If two or more persons conspire either

to commit any offense against the United

States, or to defraud the United States in

any manner or for any purpose, and one or

more of such parties do any act to effect the

object to the conspiracy, each of the par-

ties to such conspiracy shall be fined not

more than $10,000, or imprisoned not more

than two years, or both.

Section 35A of the Criminal Code (18 U. S. C.

80) provides:

Whoever shall make or cause to be made

or present or cause to be presented, for pay-

ment or approval, to or by any person or

officer in the civil, military, or naval serv-

ice of the United States, or any department

thereof, or any corporation in which the

United States of America is a stockholder,

any claim upon or against the Government

of the United States, or any department or

officer thereof, or any corporation in which

the United States of America is a stock-

holder, knowing such claim to be false,

fictitious, or fraudulent; or whoever shall

knowingly and willfully falsify or conceal

or cover up by any trick, scheme, or device

a material fact, or make or cause to be

made any false or fraudulent statements or

representations, or make or use or cause to

be made or used any false bill, receipt,

i eS

voucher, roll, account, claim, certificate,

affidavit, or deposition, knowing the same

to contain any fraudulent or fictitious state-

ment or entry in any matter within the

jurisdiction of any department or agency

of the United States or of any corporation

in whi.‘i the United States of America is a

stockholder, shall be fined not more than

$10,000 or imprisoned not more than ten

years, or both. [Italics added. ]

STATEMENT

On January 28, 1946, petitioners Gottfried and

Pure Rock Mineral Springs Corporation were

indicted in the United States District Court for

the Southern District of New York in two counts

charging that they made false and fraudulent state-

ments to the Office of Price Administration in ob-

taining sugar rations, in violation of Sectipn 35A

of the Criminal Code (R. 13-22). An Bthn in-

dictment returned January 28, 1946, charged that

Gottfried and petitioners Forman and Stanton con-

spired, in violation of Section 37 of the Criminal

Code, to defraud the United States of the fair and

honest services of Stanton, who was an investigator

of the Office of Price Administration, and that the

conspiracy contemplated bribing Stanton not to

report violations which were committed by Gott-

fried and Pure Rock Mineral Springs Corpora-

tion (R.423-28).

1 It appears that as a result of the false statements, these pe-

tioners obtained an allotment of approximately one million

pounds of sugar in excess of their allowable quota (R. 2302).

The indictments were consolidated for trial, and

after a protracted jury trial the petitioners were

convicted (R. 2286). The corporation was sen-

tenced generally to pay a fine of $10,000 (R. 2428).

Petitioner Gottfried was sentenced to imprison-

ment for three years on each count of the sub-

stantive indictment and for one year on the con-

spiracy charge, the sentences to be served con-

currently, and to pay fines totaling $20,000 (R.

9429-2432 ; but see R. 2309-2310). Petitioner For-

man was sentenced to imprisonment for a term of

one year and a day and to pay a fine of $5,000 (R.

2433-2434). Petitioner Stanton was sentenced to

a term of one year and a day (R. 2435). Upon

appeal to the Circuit Court of Appeals for the

Second Circuit, the judgments of conviction were

affirmed (R. 2474-2475).

Petitioners do not argue the sufficiency of the

evidence to support their convictions. The evi-

dence in this respect is summarized in the opinion

of the court below (R. 2463-2464). The evidence

pertinent to the questions of law which petitioners

present is summarized in the Argument in con-

nection with the discussion of each question.

ARGUMENT

1. Relying on Ballard vy. United States, 329

U. S. 187, and Thiel v. Southern Pacific Co., 328

U. S. 217, petitioners challenge (Pet. 7-13) their

convictions on the ground that the jurors for the

grand and petit juries were not summoned from

all of the counties included in the Southern Dis-

trict of New York.

The contention was first raised by motion to

dismiss the indictment prior to trial (R. 29-31).

Opposing affidavits were filed (R. 33-49), testi-

mony was taken at a hearing (R. 51-66, 67-77),

and the motion was subsequently denied (R. 78).

The factual picture is reflected in the affidavit

of the clerk of the District Court, in which the

practice in the Southern District is summarized,

as follows (R. 42-48) : fs

The vast majority of jurors are drawn

from New York and Bronx Counties and

nearby Westchester County. This is done,

not for the purpose of excluding residents

of other more remote counties, but for

practical reasons. Jurors summoned from

more remote counties have complained in

the past, I am informed, that it was imprac-

ticable for them to return home at the end

of each court day and that in consequence

they incurred the expense of living in New

York City, for which they received no re-

imbursement beyond the statutory four

dollar fee paid to all jurors. Moreover

their businesses suffered because of their

protracted absence. In addition the Gov-

ernment was put to the expense in the

ease of such jurors of paying their trans-

portation to and from their homes at the

end of each week of the term of their

jury duty. In view of these facts and

further in view of the fact that the appli-

cable statute, Title 28 (Judicial Code)

Section 413, U. S. C. requires that jurors

shall be returned ‘‘so as not to incur an

unnecessary expense,’’ the practice in this

district, for the past few years has been

ety to draw jurors principally from the coun-

ties near the Court. However, jurors from

more remote districts who indicate their

willingness to serve and who meet the

statutory qualifications are never excluded

but are included in the file of qualified and

available jurors. * *

Petitioners assert that this practice invades

their constitutional rights, but it is plain that

there is no constitutional problem presented. For

the Sixth Amendment entitles a defendant to trial

by a jury from the state and district where the

offense was committed, and the petitioners were

indicted and tried by juries composed of persons

from that district. The Amendment does not re-

quire that the jurors shall have been summoned

from the entire district. Lewis v. United States,

279 U. S. 63, 72; Ruthenberg v. United nian

245 U. 8. 480, 482.

The question, rather, is whether the saute in

the Southern District of New York complies with

the statutory requirements which have been im-

posed. The controlling provision is Section 277

of the Judicial Code (28 U. S. C. 413), which

provides:

Jurors shall be returned from such parts

of the district, from time to time, as the

court shall direct, so as to be most favorable

to an impartial trial, and so as not to incur

an unnecessary expense, or unduly burden

777466—48——_2

—

the citizens of any part of the district with

such service.

That the practice in the Southern District sat-

isfies the statutory command is demonstrated quite

plainly by Judge Learned Hand’s discussion, of

the problem in his opinion for the court below.

The opinion demonstrates that the practice did

not deny petitioners an impartial trial (R. 2465-

2466) and it is not disputed that it avoids unneces-

sary expense and the imposition of an undue

burden on citizens of the more distant parts of the

district who would be separated from their homes

and families for the duration of their jury service

(except on week-ends) and who would be out of

pocket financially.

The argument that there never was an order

entered which authorized division of the district

is answered by Judge Hand, relying on his knowl-

edge of the practice in the court, as follows

(R. 2467) :

The argument proceeds, however, that

there was never any order entered in the

district which authorized its division, and

that in May v. United States [199 Fed. 53,

59 (C. C. A. 8)] the court, although it

recognized the validity of the statute, de-

clared that without such an order the pre-

sumption was that the court believed an

array drafted from the whole district would

be ‘‘most favorable to an impartial trial.”

That may well be true in cases where the

court has never either by express order, or

by long recognized practice, in effect

divided the district; but in the Southern

District of New York, although no*express

order has been found, it appeared from the

testimony of the clerk and his deputy,’ that

for at least ten years before the trial it has

been the unbroken practice not to draft

jurors from counties north of Westchester,

although residents of those counties have in

a few cases been accepted, when they volun-

teered. A practice of such long standing

must have been known to the judges of the

district and have been approved by them.

It is true that Judge Hand and I, who

served as district judges in that district,

each for more than twelve years, cannot

now be sure, after a lapse of over twenty

years, that our memories are reliable; yet

we believe that the practice existed also in

- our time which in my own case goes back

to 1909.

In its essential aspects, petitioners’ argument

is the same as that which this Court considered in

Lewis v. United States, 279 U. S. 63, where jurors

were not summoned from ten counties in the dis-

trict. The question there was whether the re-

quirements of Section 277 of the Judicial Code

had not been met because there was no evidence

of a formal written order directing the clerk not

to summon jurors from the entire district.

Approval of the practice was inferred from the

surrounding circumstances. Similarly here, ad-

2 See R. 52-54, 57-61.

“=

herence to the practice of summoning prospective

jurors from the nearby counties rests on the

authority of long recognized practice, dating back, —

it appears, at least to 1909. The denial of peti-

tioners’ motions to dismiss the indictment on this

ground and the selection thereafter of a petit jury

from a panel summoned in accordance with the

usual practice, amply illustrates the district

court’s approval of the practice.

The decisions in Ballard v. United States, 329

U. S. 187, 191, and Thiel v. Southern Pacifie Co.,

328 U. S. 217, 221, recognize the validity of

Section 277 of the Judicial Code, and since the

practice in the Southern District of New York

complies with that provision, there is no com-

fort for petitioners in those decisions.

2. Petitioners’ second contention (Pet. 13-16)

is that they were denied a fair trial because of

the alleged misconduct of a juror who was excused

before the case was submitted to the jury. The

fundamental difficulty with the argument is that

it does not take cognizance of all the pertinent

facts. When the full factual picture is analyzed,

it is plain that there is no substance in the

contention.

(a) The facts relating to the events prior

to the discharge of juror No. 1, Mr. Van Voorhis,

may be summarized as follows:

The trial commenced on February 4, 1947, and

was concluded on March 26, 1947. On Friday,

11 Pees

March 14, one of the defense counsel suggested

to the court that Van Voorhis had failed to dis-

close to the court when examined on the voir dire

that he had previously served on a jury in a

criminal trial (R. 1730-1732). The court di-

rected counsel to ascertain whether this was true

(R. 1732). On the following Monday, March

17, the Assistant United States Attorney in-

formed the court that he had learned that Van

Voorhis served as an alternate juror in a trial

in 1935 (R. 1781). Petitioners’ counsel stated

that from their inquiries they believed that Van

Voorhis had indicated some hostility in this case

by not looking at one of the defense witnesses

while he testified and by saying ‘‘Huh’’ to de-

fense counsel when certain exhibits were handed

to him (R. 1781-1782). Counsel also informed

the court that after the jurors left the courtroom

on the previous trial day, Van Voorhis remarked

to another juror, that the trial judge was very

unfair to the Assistant United States Attorney

who was prosecuting the case (R. 1782-1783).*

The court suggested to counsel that if they desired

to urge these- matters as a basis for a motion

requesting that Van Voorhis be excused and that

an alternate juror take his place, they should

offer proof to support their motion. Counsel

were instructed by the court, ‘‘Find out what

’ A witness later testified that Van Voorhis had said, “I

believe, I think that the judge is being unfair with the boy”

(R. 2167).

~—n

you can as to the facts and then I will hear you.”

(R. 1784-1785.)

Two days later, on March 19, defense counsel

informed the court that they had learned that

Van Voorhis had several times served as a juror

in criminal cases (R. 1901-1903). The Assistant

United States Attorney suggested to the court

that he was doubtful that Van Voorhis had been

asked whether he had previously served as a

juror in a criminal case (R. 1905),* and that if

the question had been asked, it was possible that

Van Voorhis’ failure to disclose his prior jury

service might have been due to an innocent mis-

apprehension (R. 1906, 1908). The court in-

structed counsel to search for decided cases which

would serve as authorities for their respective

positions (R. 1909). In a colloquy later the same

day, the court reiterated that it was the defend-

ants’ burden to offer formal proof to support

their motion (R. 1940).

At the close of all the evidence on March 21,

the question as to the alleged misconduct of Van

Voorhis was again brought up. At the outset,

the court stated (R. 2108):

_ Now, about this juror matter: I want to

get this matter submitted to me in some

proper way where I can get at the facts

and do what I think is the right thing

under all circumstances. I realize it is a

* The examination on the voir dire was not stenographically

transcribed (R. 1905).

matter of importance to this juror, and I

do not want to remove him and put another

person in his place unless I think that

justice requires it to be done. At the same

time, I want to be fair with the defendants,

and if I think that justice requires that he

be replaced, I want to do that. * * *

And, again, the court invited defense counsel to

submit formal proof as to the facts by affidavit or

otherwise (R. 2110, 2113).

On March 26, when counsel had completed their

summations, the court again adverted to the Van

Voorhis matter and after having been assured

that defense counsel did not intend to challenge

any of the other jurors, the court announced that

Van Voorhis would be excused as a juror at the

conclusion of the charge (R. 2255). The court

stated that this action was being taken in view of

the various charges asserted by petitioners against

Van Voorhis and solely because an alternate juror

was available and there thus could be no harm in

discharging Van Voorhis (R. 2256-2257). The

court later talked with Van Voorhis concerning

the matter asserted against him and at the con-

clusion of the trial, the court stated (R. 2293)

to the jurors:

Ladies and gentlemen, I want to clarify

this in your minds. If you inferred, from

anything I said, that there was an inten-

tional and deliberate misrepresentation of

facts by Mr. Van Voorhis, I want to cor-

rect that now. The information that I

have about the matter—and I have investi-

gated it and I have talked with counsel

about it—and I say this in justice to Mr.

Van Voorhis—I am convinced that there

was no intentional or deliberate withholding

of information by Mr. Van Voorhis. I

think it was a case of misunderstanding of

the questions asked, and I am making this

further explanation in justice to Mr. Van

Voorhis.

It is on the basis of these facts that petitioners

urge (Pet. 13-14) that the court committed preju-

dicial error in not discharging Van Voorhis on

March 14, when they first raised the question,

rather than at the close of the charge to the jury.

It is said (Pet. 16) that ‘‘justice deferred may

well be justice denied.’’ It may be noted that

petitioners never did prove what they asserted.

The court ultimately discharged Van Voorhis

solely out of an abundance of caution and because

there was an alternate juror available.

Even assuming that Van Voorhis should prop-

erly have been discharged, there was no unnec-

essary delay in doing so. The time between

March 14, when the motion was first made, and

March 26, when it was granted, was consumed

by petitioners in seeking out the facts and the

pertinent principles of law. Time and again the

court told petitioners that if they wanted to

press the motion, it was their responsibility to

offer formal proof in support of it. That peti-

tioners were well satisfied with the procedure

| 15

adopted by the trial judge is plain from the fact

that not once during the 12-day interval when

the matter was being discussed by counsel and the

court did counsel object to the court’s action.

It is plain, too, that if they had objected, the

court would have been justified in denying their

motion for lack of supporting proof. For all

that petitioners offered the court in respect of

the question whether Van Voorhis had failed to

disclose prior jury service was the unsupported

statements of counsel.

If petitioners believed that the presence of

Van Voorhis on the jury was against their best

interests they could have protected themselves

by speedily adducing the facts in court by com-

petent proof. They were given adequate oppor-

tunity to do so. They failed to avail themselves

of it.

(b) The second aspect of petitioners’ contention

involves an assertion—but not proof—that Van

Voorhis may have communicated with other

jurors after he was removed from the jury.

Here, too, the facts need a fuller statement than

petitioners have given them.

After sentence had been imposed on petitioners,

one of the defense counsel stated to the court

that he had learned that after Van Voorhis had

been dismissed from the jury and before the jury

commenced its deliberations, he went into the

jury room and remained there for five or ten

777466—48——3

minutes. It was suggested by counsel that Van

Voorhis ‘‘might have talked to some of the other

jurors and expressed an opinion.’”’? (R. 2318-

2319.) Counsel candidly stated to the court, “I

am surmising, as your Honor knows’’ (R. 2319).'

The court informed counsel that in its view “‘that .

is [not] the proper way of raising this matter”

and that if counsel desired to, he could subse-

quently properly present the question (R. 2319).

Petitioners did not thereafter file any motion

in the trial court seeking to present the question

which they had raised. After the appeal was

taken, the Government filed a motion in the

cireuit court of appeals requesting that the case

be remanded for the purpose of determining

whether there were any improper communications

between Van Voorhis and the jury (R. 2443-2445).

The motion was grounded on the ‘‘Government’s

interest in a verdict free from any suspicion

whatsoever of improper conduct on the part of

the jury”? (R. 2445). This motion was denied

(R. 2446), and petitioners thereafter filed a simi-

lar motion in the circuit court of appeals (R.

2451-2456). The Government, having conducted

its own investigation in the meantime, opposed

the motion on the ground, inter alia, that ‘‘the

moving papers are utterly devoid of any evi-

dence to warrant the inquiry asked for” (R.

* Counsel also asserted that Van Voorhis had said that he

did not care whether he would be excused; that he had seven

others lined up with him for conviction (R. 2319).

2458). The supporting affidavit of the Assistant

United States Attorney stated (R. 2460):

I believe from my conversations with

Van Voorhis, Alternate Juror No. 2, the

Clerk of the part, and the bailiff in charge

of the jury (which conversations resulted

in my obtaining affidavits showing that

there were no communications whatsoever

with respect to this case among Van Voor-

his and the other members of the jury

after he had been excused from the jury),

that the defendants had spoken to the Clerk

of the part and the bailiff in charge of the

jury on the day following the rendition of

the verdict in an attempt apparently to

verify the statements which counsel had

made to the Trial Judge on the motion to

set aside the verdict. In the light of this,

the fact that no affidavits were ever sub-

mitted and are not submitted now by the

defendants to substantiate the allegations

which counsel made on the motion to set

aside the verdict and which counsel is re-

peating now in the affidavit attached to the

instant motion papers, shows conclusively

that the inquiry is merely a ‘“‘fishing ex-

pedition.”” * * *

Petitioners’ motion was thereafter denied (R.

2461).

Quite plainly, the trial judge properly declined

to act on the basis of the ‘‘surmise”’ of one of the

defense counsel that there may have been im-

proper communication between Van Voorhis and

the jury when Van Voorhis went to the jury room

after he was excused, apparently to obtain his

belongings. If petitioners desired to raise the

question, it was their responsibility, as the trial

judge indicated, to present a motion supported by

evidence, not surmise. The developments in the

proceedings before the circuit court of appeals

demonstrate that they had no evidence to support

their motion. For the affidavit of the Assistant

United States Attorney squarely presented the

factual picture and petitioners made no effort to

controvert it. In the circumstances, the circuit

court of appeals would not have been justified in

remanding the case. Both courts properly de-

clined to act until petitioners came forward with

proof to support their position. In neither court

did petitioners do so.

3. On June 16, 1945, petitioner Stanton gave a

statement (R. 1117-1143) to Assistant United

States Attorney Bender, which detailed the facts

involved in the offense for which he was convicted.

This statement was received in evidence at the

trial only against Stanton (R. 1116-1117, 1143-

1144). Prior to its admission in evidence, the

trial court conducted a lengthy preliminary inquiry

into Stanton’s claim that the statement was not a

voluntary one, and the court found that the state-

ment was voluntary (R. 1112-1113, 1091-1092).

Evidence bearing on the question whether the state-

ment was voluntarily given was taken before the

jury, and they were instructed that the statement

could be considered against Stantcn only if they

found that it was voluntarily made (R. 2276-

2278). The circuit court of appeals found that

the evidence relied upon by petitioners as showing

that his statement was coerced ‘‘is not very con-

vineing in print, and apparently it was not when

given in court”’ (R. 2470), and the contention that

the trial judge erred in admitting the statement

in evidence was squarely rejected (R. 2470-2471).

Notwithstanding that two courts, and presum-

ably the jury, have found that the statement was

voluntarily given, petitioners persist in their con-

tention in this Court. Without stating the evi-

dence which the courts below relied upon in mak-

ing their findings on the question, petitioners have

selected fragments from the entire factual picture,

‘and on the basis of these they argue that it was

error for the trial court to admit Stanton’s state-

ment in evidence (Pet. 17-18). The opinion of

the court below as well as the ruling of the trial

judge on the question demonstrate quite plainly,

we believe, that the contention is totally without

merit.

Since petitioners have not stated the pertinent

facts, we shall briefly summarize the evidence

which supports the findings of the courts below:

In June 1945, petitioner Stanton was serving

a term of imprisonment at the federal prison at

Danbury, Connecticut, on his conviction for the

unlawful sale of gasoline ration coupons (R. 757-

758). On June 6, 1945, Stanton was brought to

New York on a writ of habeas corpus ad testifi-

candum and he was confined in the Federal House

of Detention in New York City until June 22,

when he was returned to Danbury (R. 752). On

June 7, less than twenty-four hours after his ar-

rival in New York, Stanton conferred with Mr.

Martocci, his lawyer, at the place where he was

temporarily confined (R. 755). On June 8, he was

taken to the office of Assistant United States Attor-

ney Bender, where he was interrogated concerning

the offense involved here (R. 998). At this con-

ference, Stanton was told that the ‘‘purpose of

bringing you down here is to ask you certain

questions and to get from you certain answers or in

the event that you wish to exercise your privilege,

the statement from you that you refuse to answer

a question on the ground that it tends to inerim-

inate you or subject you to a penalty’’ (R. 2346).

Stanton was carefully advised of his constitu-

tional rights and he stated that he also had been

advised concerning them by a prison official at

Danbury (R. 2347-2348). He answered some

questions (R. 2348-2354), but he declined to

answer apparently incriminating questions until

he had consulted his attorney (R. 2354-2356).

Thereupon, he was taken before the grand jury

and substantially the same events reoccurred

(R. 2357-2365).

Petitioner Stanton was questioned again by an

Assistant United States Attorney on June 11,

and he evidently again refused to make a state-

“=

ment (R. 928-929). On either June 11 or 13 he

indicated to the Assistant United States Attorney

that he would like to see his wife who lived

in Kingston, New York, to ascertain from her

whether petitioner Forman had been financially

supporting her while Stanton was in prison (R.

929-930, 987-988). Mrs. Stanton was brought to

New York on June 14 and she conferred privately

with Stanton for approximately forty-five minutes

at the place where he was confined (R. 930-931).

At the conclusion of the conference, Stanton asked

to be taken to the office of Assistant United States

Attorney Bender (R. 931). Mrs. Stanton told

Bender that she believed that her husband was

prepared to make a statement (R. 940), and

Stanton requested that he be given a day or two

to collect his thoughts before making the state-

ment (R. 940). Bender was agreeable to Stan-

ton’s request, and after a further talk with his

wife, Stanton was returned to detention head-

quarters (R. 940-941).

On June 16, Stanton was taken to Assistant

United States Attorney Bender’s office and in the

presence of two investigators he answered ques-

tions put to him by Bender (R. 710, 713, 714, 716,

1071). The taking of the statement lasted for

approximately two hours (R. 750-751). There

were no off the record discussions in the course

of the interrogation (R. 709, 711, 717, 1077) ; and

there were no threats or promises made to Stanton

(R. 947, 950, 985, 986, 1076, 1077, 1079, 1080).

A TIE AL TE

The text of the statement discloses that Stanton

was fully advised again as to his constitutional

rights (R. 1117-1118); that he stated that no

threats or promises were made to him and that

he had changed his mind about giving a state-

ment for his ‘‘own personal reasons’ (R. 1118,

1143).

Some seven months later, on January 10, 1946,

Stanton, accompanied by counsel who remained

outside (R. 875), appeared before the grand jury

which returned the indictments involved in these

eases (R. 874, 943, 1089). In January 1947, on

the day that his parole term expired, petitioner

Stanton surrendered himself to the sheriff of

Ulster County, where he lived, and told him that

“‘T would like to go down to New York and tell

my entire story’? (R. 1066-1067). Stanton indi-

eated to the sheriff that he believed that neither

his attorney nor petitioner Forman were inter-

ested in his welfare and offered to tell his story

to him, but the sheriff declined either to hear the

full story or to take petitioner into custody (R.

1067-1068). Instead, he notified an agent of the

F. B. I. (R. 1073).

Stanton then proceeded to New York City on

his own initiative and contacted the office of

Assistant United States Attorney Bender. At

Stanton’s request, an investigator met him at his

hotel (R. 943). Stanton told McIntyre, the in-

vestigator, that his wife had urged him to tell

the ‘“‘whole story’’, and that petitioner Forman

had not been of aid to him in securing a job, and

that he wanted to make full disclosure to Assistant

United States Attorney Block, who was then in

charge of the case (R, 944). Stanton gave addi-

tional information to Block and discussed the

possibility that he might plead guilty to the

indictment which was then pending (R. 945, 946).

This evidence, we submit, fully supports the

conclusion of the trial judge that the June 16,

1945, statement was voluntarily made. The trial

judge stated his reasons for so holding, as follows

(R. 1112-1113) :

* * * T reached this conclusion after

hearing the evidence and observing the

demeanor of the various witnesses. The

statement of June 16th was not obtained by

duress. If any duress or coercion was used

between June 6th and June 14th, which I

do not find to have existed, there was suffi-

cient time elapsing between June 14th and

June 16th to dispel any continuing effect

of such duress, as was the case in Lyons v.

Oklahoma, 322 U. S. 602. There an in-

voluntary confession was [separated] froma

subsequent voluntary confession by a period

of 12 hours.

* * aa * i

Here the evidence shows that prior to

June 14th Stanton did not want to make

a statement; that he indicated that if he

could talk to his wife he might make a

statement; that he was held in New York

while officers went to Kingston and re-

turned with his wife; that after talking to

his wife he was given ample time to think

the matter over and then voluntarily de-

cide whether he wanted to make a state-

ment. And the evidence shows that he

changed his mind about fhat matter of

making a statement, and the evidence shows

why he changed his mind after talking to

his wife. The statement itself shows that

Stanton not only answered questions pro-

pounded to him but volunteered much that

was not asked. And much of what was

volunteered bears on why he changed his

mind after talking to his wife.

None of the considerations advanced by peti-

tioners (Pet. 17-18)° detract from the plain fact

that Stanton did not confess until he had satisfied

himself that petitioner Forman had not helped to

support his family while he was in prison (see

R. 994). Prior to that time, Stanton had flatly

refused to give incriminating information, either

to the grand jury or the Assistant United States

Attorney. His change in attitude was occasioned,

* There was ample evidence in the trial court which refutes

petitioners’ assertion that Stanton’s health was undermined

while he was confined in New York (R. 326, 878, 935: see R.

755). Similarly, the claim that his counsel was denied access

to the Assistant United States Attorney’s office while Stanton

was there is answered by the undisputed fact that Stanton

knew that his counsel was in an anteroom to the office (on

another matter (R. 728) ), and that he not only did not request

his counsel’s presence, but also that he strongly urged that his

counsel not be brought in (R. 1015, 1078; see, also, R. 996,

1015).

as he said, “‘for my own personal reasons” (R.

1118, 1143), and his later unsolicited confession in

January 1947, after he had been indicted, confirms

the fact that he and Forman had had a falling

out, and that Stanton was determined to implicate

those who were parties to the offense. As both

courts below found, the picture is not one of a

brow-beaten prisoner who confessed rather than

be subjected to coercive measures; it is one, as

often happens, of an underling in a criminal ven-

ture who for personal reasons determined that he

would implicate his partners in crime. We fully

agree with the conclusions of both courts below on

this question.

4. Two indictments are involved in this litiga-

tion. The conspiracy indictment in No. 562 was

returned in January 1946, less than three years

after the occurrence of the overt acts alleged

and proved. The indictment in No. 561, which

charged Gottfried and the corporation with filing

false and fraudulent statements with the Office of

Price Administration, alleged that the offenses oc-

curred on or about April 29, 1942, and was re-

turned January 28, 1946, approximately three

years and nine months after the offenses occurred.

Petitioners contended in the court below that the

latter indictment was barred by the statute of

limitations,’ but the court rejected the argument

The ordinary period of limitations for offenses such as

this one is three years, as provided in 18 U. S. C. 582.

“=

(R. 2473) on the ground that the offenses involved

fraud on the United States and the statute of limi-

tations was therefore extended by 18 U. S. C.

590a.° }

In this Court petitioners reassert the conten-

tion and urge that the holding of the court below

on this question is in conflict with the decision of

the United States Court of Appeals for the Dis-

trict of Columbia in Marzani v. United States,

No. 9595, decided February 2, 1948, where the

court said that the suspension act did not extend

* This statute, which is the Act of August 24, 1942, 56

Stat. 747, as amended by Section 19 (b) of the Contract Set-

tlement Act of 1944, 58 Stat. 667, and Section 28 of the Sur-

plus Property Act, 58 Stat. 781, provides:

“The running of any existing statute of limitations appli-

cable to any offense against the laws of the United States (1)

involving defrauding or attempts to defraud the United

States or any agency thereof whether by conspiracy or not,

and in any manner, or (2) committed in connection with the

negotiation, procurement, award, performance, payment for,

interim financing, cancelation or other termination or settle-

ment, of any contract, subcontract, or purchase order which is

connected with or related to the prosecution of the present

war, or with any disposition of termination inventory by any

war contractor or Government agency, or (3) committed in

connection with the care and handling and disposal of prop-

erty under the Surplus Property Act of 1944, shall be

suspended until three years after the termination of hos-

tilities in the present war as proclaimed by the President or

by a concurrent resolution of the two Houses of Congress.

This section shall apply to acts, offenses, or transactions

where the existing statute of limitations has not yet fully

run, but it shall not apply to acts, offenses, or transactions

which are already barred by provisions of existing law.”

the statute of limitations in respect of the making

of false and fraudulent statements in violation of

the False Claims Statute (Section 35A of the

Criminal Code, 18 U.S. C. 80) except in cases where

the fraud results in a financial or property loss to

the Government.

Concededly, there is a conflict in principle be-

tween the two decisions. We think it clear, how-

ever, that the language of the Marzdni opinion

upon which petitioners rely is a dictum, for the

judgment of conviction was affirmed, and the

court, if it were so inclined, could have disposed

of the case without ever reaching the question.

The court held that two of the counts involved in

that case were within the three-year limitation

period, and that either count supported the general

sentence which was imposed.

It should be noted, too, that the issue affects only

petitioners Gottfried and the corporations They are the

caly defendants named in the substantive indictment.

The conspiracy indictment was returned less than three

years after the overt acts occurred (see Re 23-27).

PEER ODL Se ee OMRON :

Thus, although all of the petitioners make the

limitations contention, only petitioners Gottfried and

the corporation are affected by the questim and, we

submit, only they are entitled to urge it in this Courte

The Marzani dictum was predicated on three“®

SORTER Ee ROSA i the

decisions of this Court, none of which, we believe,

compels the result which the Court of Appeals for

the District of Columbia reached. In all three

cases, this Court was concerned with the question

whether the prosecution was for defrauding the

United States and was therefore not barred by

the three-year limitation period. In United

States v. Noveck, 271 U. S. 201, this Court held

that a prosecution for perjury was not a prosecu-

tion for defrauding the United States because

defrauding the United States is not an ingredient

of the offense of perjury. United States v.

McElvain, 272 U. 8. 633, involved a conspiracy to

defraud arising out of the making of a false tax

return, and this Court held that none of the sub-

stantive tax offenses for which the defendant

could have been indicted were included in a pro-

viso to the statute of limitations extending the

limitation period, and that a conspiracy to com-

mit any of these offenses likewise was not in-

cluded. In United States v. Scharton, 285 U. 8.

518, a prosecution for attempting to evade taxes

by falsely stating taxable income, the Court held

that the longer period of limitations was not

29 -

applicable because the specific offense charged did

not include fraud as one of its ingredients. This

Court has never held that a prosecution for filing

a false and fraudulent statement with a Govern-

ment agency, in violation of the False Claims

Statute, is not an offense which involves the de-

frauding of the United States within the meaning

of the limitation statute. Indeed, in United

States v. Gilliland, 312 U. 8. 86, 93, the Court

specifically recognized that a broad concept of

fraud is an ingredient of the offense for which

Gottfried and the corporation were convicted,

and the Court said that it is not restricted to

cases involving pecuniary or property loss to the

Government." Nothing in this Court’s decisions,

which seemed controlling to the court in the

Marzani case, even suggests that where fraud is

a specific ingredient of the offense, there also

** Compare Braverman v. United States, 317 U. S. 49, 54-

55, where this Court recognized that Congress amended the

limitations provisions applicable to criminal tax prosecutions

to overcome the results in the McElwain and Scharton deci-

sions. In these circumstances the McElvain and Scharton de-

cisions, which the Marzané opinion regards as controlling, are

quite clearly of dubious significance in showing the congres-

sional purpose in respect of this kind of legislation. That

these decisions do not reflect the purpose of Congress in

enacting the present statute is borne out by the convincing

legislative history which is set forth, infra, pp. 30-31.

" The indictment here alleges that Gottfried and the cor-

poration “did make and cause to be made, false and fraudu-

lent statements and representations” in a matter before the

Office of Price Administration (R. 13; see also R. 18).

must be a showing of a property or financial loss

to the Government before the longer limitation

period applies.

Even a deeper vice affects the dictum of the

Marzani opinion. The legislative history of the

suspension act—to which no reference is made in

the Marzani opinion—persuasively demonstrates

that the False Claims Statute was brought to the

attention of Congress, and that there was a spe-

cific congressional intent to extend the period of

limitations for violations of that statute, without

limitation as to the nature of the fraud.

Thus, the Contract Settlement Act of 1944, pro-

vided in Section 19, the enforcement provision, as

follows:

* — = ¥ *

(b) The first section of the Act of Au-

gust 24, 1942 (56 Stat. 747; title 18, U. 8. C.,

Supp. IT, sec. 590a), is amended to read

as follows:

The running of any existing statute of

limitations applicable to any offense against

the laws of the United States (1) involving

defrauding or attempts to defraud the

United States or any agency thereof

whether by conspiracy or not, and in any

manner, or (2) committed in connection

with the negotiation, procurement, award,

performance, payment for, interim financ-

ing, cancelation or other termination or

settlement, of any contract, subcontract, or

purchase order which is connected with or

related to the prosecution of the present

war, or with any disposition of termination

inventory by any war contractor or Gov-

ernment agency, shall be suspended until

three years after the termination of hos-

tilities in the present war as proclaimed by

' the President or by a concurrent resolution

of the two Houses of Congress. This sec-

tion shall apply to acts, offenses, or transac-

tions where the existing statute of limita-

tions has not yet fully run, but it shall not

apply to acts, offenses, or transactions which

are already barred by provisions of existing

law.

+ * * *” *

(d) The provisions of section 35-A of

the Criminal Code (18 U. 8S. C., sec. 80)”

shall apply to any statement, representa-

tion, bill, receipt, voucher, roll, account,

claim, certificate, affidavit, or deposition

made or used or caused to be made or used

for any purpose under this Act or under

any regulations pursuant to this Act.

” * * * *

House Report No. 1590, 78th Cong., 2d Sess., p.

28, explains these provisions as follows:

Subsection (b) amends the act of August

24, 1942 (56 Stat. 747). This amendment

suspends until 3 years after the termina-

tion of hostilities the running of any exist-

ing statute of limitations applicable to any

Federal offense involving fraud against the

United States or connected with the nego-

%The statute upon which the instant prosecution is

founded.

tiation, procurement, award, performance,

payment for interim financing, cancelation

or other termination, or settlement of any

war contract.

+ * on *

Subsection (d) deals with the criminal

penalties for fraud. It makes clear that

the provisions of section 35-A of the Crim-

inal Code (18 U. S. C., sec. 80) also apply

to any such statement, representation, or

other document made or used or caused to

be made or used for any purpose under the

act. Section 35-A imposes criminal pen-

alties up to $10,000 in fines and up to 10

years’ imprisonment for fraudulent actions

involving the Government.

Senate Report No. 836, 78th Cong., 2d Sess.,

p. 5, similarly emphasizes the fact that the penalty

provided by the False Claims Statute is an im-

portant enforcement sanction.

The specific reference to the False Claims

Statute in Section 19 (d) of the Contract Settle-

ment Act plainly demonstrates to us that Congress

intended this important sanction to have the bene-

fit of the suspension of the period of limitations

provision in Section 19 (b). But if there is room

for any doubt, that doubt must be dispelled by the

specific reference in the House Report, first to

Section 19 (b) as suspending the period of limita-

tions for offenses involving ‘‘fraud’’, and second

to the False Claims Statute as providing criminal

” ERTS

penalties for ‘fraud’, and ‘‘for fraudulent actions

involving the Government”’. It is not often that

Congress specifically makes its intent so plain. The

references on the floor of the House by sponsors

of the legislation to the fact that the False Claims

Statute provides a criminal enforcement sanction

for the Act (90 Cong. Rec. 6060) and to the fact

that criminal and civil penalties are provided for

“any fraudulent practices’ (90 Cong, Rec, 6053)

serves only to emphasize the fact that everyone

was familiar with the False Claims Statute, and

that there would have been little, if any, purpose

in providing for the suspension of the limitations

period if the provisions were not intended to

apply to the most important criminal sanction in

the Act. We cannot escape the conclusion that

Congress has plainly indicated that the three-year

limitation period shall not apply to prosecutions

under the False Claims Statute.

The suspension of limitations provision was

further broadened in the Surplus Property Act

of 1944, 58 Stat. 781, to include any offense com-

mitted in connection with the care and handling |

and disposal of property under the Act. Senate

Report No. 1057, 78th Cong., 2d Sess., p. 14, points

out that the enforcement provisions of the, Act

are in addition to ‘‘any other civil remedies which

the United States may have and of such provi-

sions of the criminal code as relate to fraud

(18 U. S. C. sec. 80)" and conspiracy (18 U. 8. C.

8 The False Claims Statute.

sec. 83).’’ (Italics added.) Here again the legis-

lative materials make it plain that the same Con-

gress which suspended the limitations period for

offenses involving fraud on the United States spe-

cifically regarded the False Claims Statute as a

“‘fraud’’ statute.

As we have said, we do not believe that this

Court’s decisions compelled the conclusion of the

court in the Marzani case. But, even assuming

the contrary, the legislative materials in respect

of the present suspension provision plainly re-

flect the congressional purpose to suspend the

limitations period for violations of the False

Claims Statute. Since interpretation of the stat-

utory language must turn on what Congress in-

tended in 1944, there can be little justification

for relying on one aid to construction—earlier ju-

dicial decisions concerning the meaning of like legis-

lative language—and disregarding the legislative

materials which are entitled to great weight. Yet

this is what the court of appeals did in the

Marzani case.

The short of the matter is that we believe the

Marzani dictum to be in the teeth of the congres-

sional purpose in suspending the period of limita-

tions for frauds on the Government. If the

Court, nevertheless, believes that there is sufii-

cient substance to the Marzani dictum to warrant

resolution of the conflict created by the dictum,

we respectfully submit that the writ should

granted only as to

this question.

petitions Gotifvied. Cae

supra, pp. 27-28) and that it should be limited to

Respectfully submitted.

Marcu 1948.

Puiu B. PEerR_MaAn,

Solicitor General.

T. VINCENT QUINN,

Rosert S. Erpax1,

Irvine 8S. SHapio,

Attorneys.

U.S. GOVERNMENT PRINTING OFFICE: to48

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.