Chevillard v. United States

• Decision Date: 16 July 1946
• Docket Number: No. 11018.,11018.
• Citation: 155 F.2d 929
• Parties: CHEVILLARD et al. v. UNITED STATES
• Court: U.S. Court of Appeals — Ninth Circuit

155 F.2d 929 (1946)

CHEVILLARD et al. v. UNITED STATES

No. 11018.

Circuit Court of Appeals, Ninth Circuit.

June 12, 1946.

Rehearing Denied July 16, 1946.

COPYRIGHT MATERIAL OMITTED

Leo R. Friedman, of San Francisco, Cal., for appellants.

Theron Lamar Caudle, Asst. Atty. Gen., James W. Knapp and Roscoe T. Pile, Attys., Department of Justice, both of Washington, D.C., and Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., for appellee.

Before GARRECHT, MATHEWS and HEALY, Circuit Judges.

MATHEWS, Circuit Judge.

Appellants (Fernand Chevillard and George Patron) and others¹ were indicted in three counts. Appellants demurred to the indictment and to each count thereof on the ground that no count thereof charged an offense. The demurrer was overruled. Appellants pleaded not guilty and were tried. At the close of all the evidence, they moved for a directed verdict of acquittal. The motion was denied. Appellants were acquitted on count 1, were convicted and sentenced on counts 2 and 3, and on March 19, 1945, took this appeal.

Appellants assign as error² the overruling of the demurrer to counts 2 and 3. Count 2 was based on § 35(A) of the Criminal Code, 18 U.S.C.A. § 80, which provides: "Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, * * * any claim upon or against the Government of the United States, or any department or officer thereof, * * * 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, * * * in any matter within the jurisdiction of any department or agency of the United States * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

Count 2 charged that on January 23, 1945, in Oakland, California, appellants and their codefendants "did knowingly, wilfully, unlawfully, and feloniously cover up and conceal by a trick, scheme, and device a material fact within the jurisdiction of the War Shipping Administration, a department and agency of the United States of America, the material facts so covered up and concealed * * * being as follows:

"That the said defendants appellants and their codefendants, well knowing * * * that the said War Shipping Administration had ordered from the Ed Heuck Company of San Francisco * * * approximately 64,793 pounds of meat, to be delivered by the said Ed Heuck Company to the said War Shipping Administration, diverted and withheld from said shipment approximately 17,832 pounds of said meat with the intent and for the purpose of converting the same to their own use, and with intent to defraud the said War Shipping Administration covered up and concealed said material fact of said diversion and conversion by the said defendants * * * by the trick, scheme, and device of signing and causing to be signed, and issuing and causing to be issued by the said War Shipping Administration, a receipt to the said Ed Heuck Company for approximately 64,793 pounds of meat."

Thus count 2 charged an offense under § 35(A) of the Criminal Code, 18 U.S.C.A. § 80, namely, the offense of knowingly and wilfully concealing or covering up by a trick, scheme or device a material fact in a matter within the jurisdiction of a department or agency of the United States. It did not use the words "in a matter within the jurisdiction of a department or agency of the United States," but it stated facts which showed that the concealing and covering up occurred in such a matter. Hence failure to use the quoted words was not a fatal defect.³

Appellants say that count 2 did not allege "that defendants wrote and presented the receipt,⁴ or that such receipt was to be used as a predicate for a false bill or claim against the United States;" did not allege "the doing of any act on the part of defendants whereby they prepared any false receipt or document to be presented to the War Shipping Administration"; did not allege "that either appellant, or any defendant, was an officer, agent or employee of the War Shipping Administration," or "that the War Shipping Administration did not receive the total amount of meat ordered";⁵ and did not allege "how the issuance of a receipt by the War Shipping Administration could result in any defrauding of the United States," or how such a receipt "could conceal the fact that 17,000 pounds of meat were missing from the shipment."⁶ Such allegations were unnecessary.

Appellants contend that count 2 was fatally defective because the receipt therein referred to was not set forth in haec verba. There is no merit in this contention. The receipt was sufficiently described in count 2. It was unnecessary to set it forth in haec verba.⁷

Count 3 was based on § 37 of the Criminal Code, 18 U.S.C.A. § 88, which 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 of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both."

Count 3 charged that on or about January 16, 1945, in San Francisco, California, appellants and their codefendants "did, in violation of § 37 of the Criminal Code, 18 U.S.C.A. § 88, unlawfully, wilfully, knowingly, and feloniously conspire, combine, confederate, and agree together, and with divers persons whose names are to the grand jurors unknown, to commit offenses against the United States, to-wit, to defraud the United States in violation of § 35(A) of the Criminal Code, 18 U.S. C.A. § 80 in the manner following, to-wit:

"That the said defendants appellants and their codefendants, * * * knowing that the War Shipping Administration, a department and agency of the United States, had placed a purchase order with the Ed Heuck Company of San Francisco * * * for approximately 64,793 pounds of meat for delivery to the said War Shipping Administration and for its use, conspired, confederated and agreed together to cause the said Ed Heuck Company to present a claim, false in part, to the said War Shipping Administration for payment from said War Shipping Administration for a total amount of 64,793 pounds of meat, when in truth and in fact, as the said defendants and each of them then and there well knew, approximately only 46,961 pounds of meat would actually be delivered to the said War Shipping Administration by the said Ed Heuck Company; and by the said defendants making and causing to be made false statements and representations in a matter within the jurisdiction of the said War Shipping Administration, to wit, that approximately 64,793 pounds of meat had been received by the said War Shipping Administration from the said Ed Heuck Company, when in truth and in fact, as the said defendants and each of them then and there well knew, approximately only 46,961 pounds of meat had actually been delivered to and received by the said War Shipping Administration; and by the said defendants covering up and concealing by trick, scheme and device a material fact relating to a matter within the jurisdiction of the said War Shipping Administration, * * * said material fact being that the said defendants had diverted to their own use and personal gain approximately 17,832 pounds of meat from a shipment consisting of approximately 64,793 pounds of meat purchased by and intended for the use of said War Shipping Administration from the said Ed Heuck Company, and covered up and concealed said material fact by the trick, scheme and device of signing and causing to be signed, and issuing and causing to be issued by the said War Shipping Administration, a receipt to the said Ed Heuck Company for approximately 64,793 pounds of meat."

Count 3 further charged that, to effect the object of the conspiracy, overt acts, which it described, were done by parties to the conspiracy on or about January 18, 1945, January 22, 1945, and January 23, 1945.

Thus count 3 charged an offense under § 37 of the Criminal Code, 18 U.S. C.A. § 88, namely, the offense of conspiring to commit offenses against the United States and doing acts to effect the object of the conspiracy.

Count 3 purported to charge a conspiracy to commit three offenses — the offense of causing to be presented, for payment, to or by a person or officer in the civil, military or naval service of the United States, or a department thereof, a claim upon or against the Government of the United States, or a department or officer thereof, knowing such claim to be false; the offense of knowingly and wilfully making or causing to be made false statements or representations in a matter within the jurisdiction of a department or agency of the United States; and the offense of knowingly and wilfully concealing or covering up by a trick, scheme or device a material fact in a matter within the jurisdiction of a department or agency of the United States.

Appellants say that, although count 3 purported to charge a conspiracy to commit three offenses, it actually charged a conspiracy to commit only one offense — the offense of knowingly and wilfully making or causing to be made false statements or representations in a matter within the jurisdiction of a department or agency of the United States. Appellants therefore contend that count 3 did not charge an offense. There is no merit in this contention. We think that count 3 charged a conspiracy to commit three offenses. If, however, it charged a conspiracy to commit only one offense, that was sufficient.

We conclude that the demurrer was properly overruled.

Elroy Hinman, general manager of the Ed Heuck Company, was a witness for...