Opposition Brief — Bernhardt v. United States

eRe RS ORL OTe” gn, Pe

Guthe Supreme Gourt of the Wnited States

OctToBER TERM, 1948

Nos. 423 and 424

LoWELL BERNHARDT AND NATHANIEL AGNEW Boyp,

ALIAS Matt Boypb, PETITIONERS

1

Unitep States or AMERICA

ON PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELCW

The per curiam opinion of t ie Court of Appeals

(R. 52-54) is reported at 169 F. 2d 983.

JURISDICTION

The judgments of the Court of Appeals were

entered September 27, 1948 (R. 51), and a petition

for rehearing was denied October 20, 1948 (R. 54).

The petition for writs of certiorari was filed No-

vember 16, 1948. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1). See also Rules

37(b) (2) and 45(a), F. R. Crim. P.

sat tarde ®

2

QUESTIONS PRESENTED

1. Whether there was sufficient evidence to show

that the property, allegedly stolen by petitioners,

was ‘‘property furnished or to be used “or the mili-

tary or naval service’’ within the meaning of Sec.

36 of the Criminal Code, 18 U.S.C. (1946 ed.) 87

(now 18 U.S.C. 641).

2. Whether the duplicity of the first information

constitutes reversible error.

3. Whether there was sufficient evidence to show

that the federal employee, allegedly bribed by peti-

tioners, was acting ‘‘in his official capacity”? within

the meaning of Sec. 39 of the Criminal Code,

18 U.S.C. (1946 ed.) 91 (now 18 U.S.C. 201).

4. Whether the trial court’s finding that peti-

tioners were guilty as charged was a finding that

they were guilty of crimes which were inconsistent

with, and repugnant to, each other.

STATUTES INVOLVED

Section 36 of the Criminal Code, as amended,

18 U.S.C. (1946 ed.) 87 (now 18 U.S.C. 641), pro-

vided :

Whoever shall steal, embezzle, or knowingly

apply to his own use, or unlawfully sell, convey,

or dispose of any ordnance, arms, ammuni-

tion, clothing, subsistence, stores, money, or

other property furnished or to be used for the

military or naval service, shall be punished as

prescribed in section 35(C) of the Criminal

Code (U.S.C., title 18, sec. 82).

_

3

Section 39 of the Criminal Code, 18 U.S.C. (1946

ed.) 91 (now 18 U.S.C. 201), provided in pertinent

part:

Whoever shall promise, offer or give, or

cause or procure to be promised, offered, or

given, any money or other thing of value, * * *

to any officer of the United States, or to any

person acting for or on behalf of the United

States in any official function, under or by au-

thority of any department or office of the Gov-

ernment thereof, * * * with intent to

influence his decision or action on any question,

matter, cause, or proceeding which may at any

time be pending, or which may by law be

brought before him in his official capacity, or

in his place of trust or profit, or with intent to

influence him to commit or aid in committing,

or to collude in, or allow, any fraud, or make

opportunity for the commission of any fraud,

on the United States, or to induce him to do or

omit to do any act in violation of his lawful

duty, shall be fined not more than three times

the amount of money or value of the thing so

offered, promised, given, made, or tendered,

or caused or procured to be so offered, prom-

ised, given, made, or tendered, and imprisoned

not more than three years.

STATEMENT

After petitioners had waived indictment (R.

2-4), two informations were filed against them and

Edwin Gust in the District Court for the Northern

District of Ohio. The first information (No.

eT

ioe Tine ene aaa ~ 2

4

9401) charged that the three defendants did ‘‘steal,

embezzle ov knowingly apply to their own use and

did unlawfully convey and dispose of certain

property furnished to or to be used for the military

or naval service,’”’ to wit, 800 automobile starters

valued at $11,400 (R. 4-5). The second informa-

tion (No. 9402) alleged that Gust was an employee

of the United States and that petitioners gave him

$400 with intent to influence his action in a matter

under his control in his official capacity, and

thereby caused him to ship the 800 automobile

starters to a point beyond the control of the United

States, thus defrauding it of the sum of $11,400

(R. 5-6).

Gust pleaded guilty (R. 7). Petitioners waived

a jury trial (R. 7-8). After a trial before the

court, petitioners were found guilty as charged,

January 26, and were at once orally sentenced

to three years’ imprisonment on each information,

the terms to be served concurrently; in addition

they were fined $1200 on the bribery charge (R. 10,

43, 47,49). On the same day the court filed written

judgments reciting that petitioners were convicted

of theft of government property under the first

information and of bribery under the second in-

formation (R. 10-14). The judgments were af-

firmed on appeal (R. 51).

The evidence for the Government, in so far as

pertinent to the issues raised by the petition for

5

writs of certiorari, may briefly be summarized as

follows:

The 800 automobile starters, allegedly stolen by

petitioners, were originally used for military pur-

poses by the War Department and stored at the

Rossford Ordnance Depot in Wood County, Ohio

(R. 22, 23, 24, 33). The War Department had re-

ported them to the War Assets Administration as

surplus property (R. 24), and they had been of-

fered for sale by War Assets to buyers having a

priority rating (R. 33). The army officers in

charge of the depot were, however, still responsible

for them until such time as they were shipped from

the depot pursuant to an order from War Assets

(R. 24).

Gust was Assistant Chief of the Surplus Prop-

erty Branch at the depot (R. 21, 26). In the ab-

sence of his chief he had authority over the receipt,

storage and shipment of surplus property at the

depot and could order property shipped from the

depot pursuant to sale by the War Assets (R. 21-

22, 26).

Petitioners were heavy buyers of surplus ma-

terial at the depot through War Assets, and Gust

had met them in the course of his official business

(R. 22, 23, 25-26). Petitioners suggested to Gust

that ‘‘it was possible to get some of the material out

of there without going through War Assets or, off

the record, make some easy money”’ (R. 26). Gust

knew that War Assets had no record of certain

~

6

eee er aan Y

property at the depot which had been declared sur-

plus by the War Department (R. 29), and he gave

petitioners a list of items, including the starters,

which he could ship out of the depot without any-

one knowing it (R. 26, 29-30). Petitioners told

Gust that they would pay him $400 to ship the

starters to them and they gave him a shipping ad-

dress in Detroit (R. 26-27, 30). Gust, in the ab-

sence of his chief, wrote an order directing deliv-

ery of the starters to the address in Detroit; this

order he gave to a clerk to write up and as a result

the starters were eventually delivered by truck in

Detroit (R. 27, 29, 32). The driver of the truck

was met in front of the shipping address by a man

who took him to a warehouse in the next block, had

him deliver the starters there, and gave him a re-

ceipt signed “‘S. Swagort”’ (R. 34-35). Petitioners

paid Gust $400 after the delivery (R. 28). There

was evidence that the signature ‘‘S. Swagort”’ had

been written by petitioner Boyd and that some of

the boxes used to ship the starters were later found

in petitioners’ warehouse (R. 35-42).

Petitioners moved for judgments of acquittal at

the close of the Government’s case. The motion

was overruled and petitioners did not take the

stand or offer any evidence in their own behalf.

(R. 43.)

ARGUMENT

1. Petitioners contend (Pet. 9-10) that there was

no evidence to support their convictions upon the

—

7

first information, which charged them with theft

of property furnished for military service, for the

reason that the testimony showed that the starters,

having been declared surplus, had passed from the

control of the army to the control of the War Assets

Administration. But it is undisputed that the

starters were furnished for military purposes (R.

23), and the executive officer of the depot testified

that the Army was responsible for them as long as

they were physically present on the premises (R.

24). This was in accordance with the terms of

the Surplus Property Act, which provides (50

U.S.C. App. 1620(d) )! that under certain circum-

stances the responsibility for the ‘‘care and han-

dling’”’ of surplus property shall not pass to the

disposal agency pending its disposition. We think

it clear that the starters would not have lost their

character as property ‘‘furnished for the military

service’ until title had passed from the United

States or the Army had been relieved of responsi-

bility for them. The cases cited by petitioners to

support their contention are not in point. United

States v. Murphy, 9 Fed. 26 (C.C. 8.D. Ohio), in-

volved clothing issued to inmates of the National

Military Home who were not in the military serv-

1 * * Where the disposal agency is not prepared at

the time of its designation * * * to undertake the care and

handling of such surplus property the Surplus Property Ad-

ministrator may postpone the responsibility of the agency to

assume its duty for care and handling for such period as he

= necessary to permit the preparation of the agency

erefor.’

aa

——

8

ice. In O’Kelley v. United States, 116 F. 2d 966

(C.C.A. 8), goods allegedly stolen from an inter-

state shipment had lost their interstate character

because delivery to the consignee had already been

accomplished.

‘pon ely i ae

9. The first information charged petitioners in

the disjunctive with crimes involving inconsistent

elements—theft or embezzlement? (supra, p. 4).

But petitioners failed to make any complaint on

this score at any stage of the trial proceedings, and

the objection (Pet. 10-12) is obviously too late. If

petitioners had felt themselves handicapped in pre-

paring a defense they could have moved in the trial

court that the Government be required to elect

which theory it desired to adopt, and the informa-

tion could then have been amended. See Rule 7(e),

F. R. Crim. P. But the defect is a technical one

which is cured by verdict if not previously attacked

by motion. Wiborg v. United States, 163 U. 8. 632,

646-648; Durland v. U nited States, 161 U. S. 306,

315; Beauchamp Vv. United States, 154 F. 2d 413,

415 (C.C.A. 6), certiorari denied, 329 U. S. 723;

Yates v. United States, 151 F. 2d 580, 581 (C.C.A.

9). Edwards v. United States, 266 Fed. 848

(C.C.A. 4), cited by petitioners for the proposition

that the objection can be raised in the appellate

courts, is not in point, for the indictment in that

ease failed to state any offense sufficiently. Peti-

2 It should be noted that the opinion of the court below mis-

takenly states that it was the second information which laid

this charge (R. 53).

9

tioners make no showing that their defense was in

the least prejudiced by the duplicity. Nor were they

injured by the fact that they were found “guilty as

charged,’’ for the written judgment filed the same

day that they were pronounced guilty (supra, p. 4)

made it clear that they had been convicted of theft

alone under the first information.

3. Petitioners contend (Pet. 13-15) that their

conviction under the second information cannot be

sustained for the reason that the evidence did not

establish that Gust was acting ‘‘in his official ca-

pacity,’’ within the meaning of the bribery statute,

in shipping the starters to them. They argue that

the ‘‘care, handling and disposition” of the starters

had passed to War Assets and that Gust, an em-

ployee of the War Department, had no authority

over them. But this ignores the fact that under the

Surplus Property Act the ‘‘care and handling”’ of

the property may remain in the Army pending dis-

position by War Assets (supra, p. 7), and it ig-

nores the evidence that the Army was still respon-

sible for the care and handling of the starters

(supra, p. 5) and that Gust, in the absence of his

superior, had authority to do just what he did, 1.€.,

to order them shipped out of the depot (supra,

p.9). We submit that Gust clearly had an official

function to perform in respect of this property,

and that the case is therefore governed by United

States v. Birdsall, 233 U.S. 223, in which the de-

fendant was convicted of bribing employees of the

10

Interior Department ‘“‘with intent to influence

their official action so that they would advise the

Commissioner of Indian Affairs, contrary to the

truth, that upon facts officially known to them

leniency should be granted’’ to persons who had

been convicted of selling liquor to Indians.

Gust’s position is obviously distinguishable from

that of the baggage porter in Krichman v. United

States, 256 U. 8. 363, relied upon by petitioners,

for the porter was merely an employee of the Penn-

sylvania Railroad at a time when it was being

operated by the Government and he had no official

authority whatever over certain trunks which he

was bribed to deliver to the defendant.*

4, We fail to perceive any merit in petitioners’

contention (Pet. 16-18) that they were convicted of

repugnant offenses. As the Court of Appeals

pointed out (R. 53), the bribery here was designed

to facilitate the theft. Gust was bribed to exercise

his official position in such a manner as to enable

petitioners to steal the surplus starters. Further-

more, there was abundant evidence to support the

conviction under the bribery information, and

since the lesser penalty inflicted under the theft

information was made to run concurrently with the

* Similarly, the instant case is readily distinguishable from

Blunden v. United States, 169 F. 2d 991, decided at about the

same time by another panel of the Court of Appeals for the

Sixth Circuit. In the Blunden case, the government employee

allegedly bribed had no authority to deliver surplus property

outside the depot; furthermore, he delivered non-surplus

property on the representation that it was surplus.

=

heavier penalty for bribery, the asserted repug-

nance is immaterial.

The trial court’s finding of guilty as charged was

not, as petitioners assert (Pet. 18), a “‘general ver-

dict,’’ leaving it uncertain of which offense they

had been convicted. The record makes it clear that

they were found guilty and sentenced under both

the theft information and the bribery information

(R. 10-14, 47, 49),

CONCLUSION

The decision of the Court of Appeals is correct

and no conflict of decisions is involved. We there-

fore respectfully submit that the petition for writs

of certiorari should be denied.

Pup B. Pertman,

Solicitor General.

| Re M. CaMPBELL,

Assistant Attorney General.

Rosert S. Erpaxt,

JosEPH M. Howarp,

Attorneys.

DECEMBER 1948.

W v. s. covernment painting OFFICE: 1948 sreste 2e2

hau ha wired sutra Xs Eee ice

IIE it Dee Ck COR RR gy cet Gea

OR NE Siita CG a dare Vee 3 4 Faas eh anb ch becake

ENS «Ua ica BU Sa Dunc c keh 4V 00 bis vs CW bd Vek dake es

CITATIONS

Cases:

Beauchamp v. United States, 154 F. 2d 413, certiorari

I I

Blunden v. United States, 169 ¥.2d991................

Durland v. United States, 161 V. 8. 306................

Edwards v. United States, 266 Fed. 848................

Krichman v. United States, 256 U. 8. 363..............

O’Kelley v. United States, 116 F. 24 966...............

United States v. Birdsall, 233 Ui'8.223................

United States v. Murphy, 9 Fed. 26..................,

Wiborg v. United States, 163 U. 8. 632...............,

Yates v. United States, 151 F.2d 580.................,

~ >

Sonowmownwon

Statutes:

Miscellaneous:

Rule 7(e), F. R. Crim. P...... Pee Rag Oe fda bene a oes 8,9

(1)