United States v. Goldsmith, 181.

• Decision Date: 08 January 1940
• Docket Number: No. 181.,181.
• Citation: 108 F.2d 917
• Parties: UNITED STATES v. GOLDSMITH.
• Court: U.S. Court of Appeals — Second Circuit

108 F.2d 917 (1940)

UNITED STATES v. GOLDSMITH.

No. 181.

Circuit Court of Appeals, Second Circuit.

January 8, 1940.

Hugh A. Fulton, Asst. U. S. Atty., of New York City (John T. Cahill, U. S. Atty., and Ralph F. Lewis, Jr., Asst. U. S. Atty., both of New York City, on the brief), for the United States.

James E. Wilkinson, of New York City (Horace G. Marks, of New York City, on the brief), for defendant-appellant.

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

The appellant was convicted on fifteen counts of an indictment charging him with making, or causing to be made, false and fraudulent statements and representations in a matter within the jurisdiction of a department or agency of the United States, and of willfully and knowingly falsifying and concealing, and covering up by a trick, scheme, and device, a material fact in a matter within such jurisdiction — all as prohibited by 18 U.S.C.A. § 80. The charge is based upon the allegations that the defendant advised and counseled six different aliens under the various circumstances set forth in the several counts in methods of procuring false evidence of their employment, earning capacity, and money on deposit in order to secure admission as quota immigrants to the United States, under 8 U.S.C.A. § 201 and following sections of the statutes. These methods include the procuring of false certificates from supposed employers of the aliens showing that the latter had been steadily and gainfully employed, and of statements from banks showing balances on deposit, built up by the simple process of borrowing the money for the purpose of deposit, and the use of such certificates and statements, as well as statements of the aliens themselves, in making applications for immigration visas. The matter is pertinent on such applications because 8 U.S.C.A. § 136(i) excludes "persons likely to become a public charge" from admission into the United States, and 8 U.S.C.A. § 202(f) prohibits the issuance of an immigration visa by a consular officer when he knows or has reason to believe that the alien is inadmissible under the immigration laws.

The appellant has not brought before us any of the evidence or the proceedings at the trial, but limits his appeal to an attack upon the validity of the indictment. He asserts that the charges made against him are legally insufficient because none of them allege financial or property loss to the United States or injury or damage to its property. The statute relied on for the prosecution, Criminal Code, § 35, as amended, is a part of what is now a series of extensive prohibitions, 18 U.S.C.A. §§ 80, 82-86. It first prescribes the presentation to the United States or its agencies of a false claim for payment or approval, and then continues with the provision particularly pertinent here: "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, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which 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." The italicized words above were inserted by an amendment of 1934, which omitted the following words previously appearing after the word "whoever" at the beginning of the clause: "for the purpose of obtaining or aiding to obtain the payment or approval of such claim, or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder." The same Act of 1934 made extensive changes in that portion of the statute found in 18 U.S.C.A. § 82 by adding provisions prohibiting the willful injury to or the committing of depredations against property of the United States.

Until the statute was amended in 1934, allegations of financial or property loss were necessary to sustain a conviction, as the appellant claims. But as made clear in United States v. Mellon, 2 Cir., 96 F.2d 462, certiorari denied 304 U.S. 586, 58 S. Ct. 1061, 82 L.Ed. 1547, and United States v. Presser, 2 Cir., 99 F.2d 819, that element is no longer necessary. Thus, as stated in United States v. Mellon, supra, 96 F.2d at page 463: "The appellants question the sufficiency of the indictment on the theory that there can be no violation of 18 U.S.C. A. § 80 without pecuniary loss to the government. Before the amendment of 1934 the scope of the statute was, indeed, so limited. United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616; United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200. But by the amendment just mentioned the statute was extended to cover the willful making of any false or fraudulent statements or representations `in any matter within the jurisdiction of any department or agency of the United States.' In this respect the element of pecuniary loss to the government is no longer an essential ingredient of the crime." And in United States v. Presser, supra, 99 F.2d at page 822, it was pointed out that to establish a violation of the Act "it was not necessary to show that the government lost money through the cutting of employes' wages by the defendant (United States v. Mellon, 2 Cir., 96 F.2d 462), nor was proof that the government was actually deceived necessary."

Appellant asserts, however, that the statements in these cases were but dicta made without appreciation of the bearing of congressional reports and debates on the amendment of 1934 which, as he claims, demonstrate that the statute was limited as before. We are clear, however, that the statements were necessary to the decisions, as the opinions assume. For in the Mellon case the point is cited in support of the validity of an indictment charging a false statement to a bank insured under the National Housing Act, 12 U.S.C.A. § 1701 et seq., for the purpose of securing a loan under it. And in the Presser case the statement was made to support a conviction of a contractor furnishing trucks and station wagons and their operating personnel under a government contract wherein he agreed, among other things, to pay wages at a certain standard rate per hour; the proof was that he had not paid the required wages, though he had so stated in his affidavits to the Procurement Division of the Treasury Department. Compare also United States v. Breen, 2 Cir., 96 F. 2d 782, certiorari denied 304 U.S. 585, 58 S.Ct. 1061, 82 L.Ed. 1546.

The claim that the congressional proceedings on the amendment of 1934 disclose a lack of legislative intent to penalize the making of false statements where no loss to the government is shown — that the intent was limited to the providing of penalties for willful injuries to or depredations against public property and the like — we think is unsupported. At most, the evidence as to such intent is of a negative nature; the argument is that absence of discussion on this point, while the other points were discussed (albeit scantily), demonstrates an intent to leave this provision unchanged. That this is a fair interpretation of the proceedings in Congress seems doubtful, for the senator in charge of the amendatory Act in the Senate urged it as necessary because, among other reasons, there was then nothing to permit the government to "prosecute persons who are engaged in the `kick-back' practice," and "they make false returns, claiming that they paid certain amounts to their employees, when they have not done so." 78 Cong.Rec. 11270-11271 (1934); cf. also ibid. 8136 for the discussion in the House. Since the senator expressly refers to practices not previously prohibited (i. e., as false claims against the United States), he must have had in mind practices similar to the ones interdicted in the Presser case without proof of financial loss to the government. Moreover, the committee report Sen.Rep. No. 1202, 73d Cong., 2d Sess. (1934) shows that this change came in committee from proposals of the Department of the...