United States v. Bayer

• Decision Date: 14 August 1946
• Docket Number: No. 305,Docket 20229.,305
• Citation: 156 F.2d 964
• Parties: UNITED STATES v. BAYER et al.
• Court: U.S. Court of Appeals — Second Circuit

156 F.2d 964 (1946)

UNITED STATES v. BAYER et al.

No. 305, Docket 20229.

Circuit Court of Appeals, Second Circuit.

August 14, 1946.

Charles H. Tuttle, of New York City (Archibald Palmer and I. Maurice Wormser, both of New York City, on the brief), for appellant Samuel Bayer.

I. Maurice Wormser, of New York City (Max E. Sanders, of New York City, on the brief), for appellant Elias Bayer.

Roger Robb, of Washington, D. C. (Samuel T. Ansell, of Washington, D. C., on the brief), for appellant Radovich.

John F. X. McGohey, U. S. Atty., of New York City (Samuel Rudykoff and Edward C. Wallace, Asst. U. S. Attys., both of New York City, on the brief), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This appeal presents some important problems in the administration of criminal justice. The indictment, based upon 18 U.S.C.A. § 88, charged all three of the defendants with conspiring to defraud the United States of the faithful and unbiased services of United States army officers, especially defendant Radovich. The conspiracy which it alleged was in substance that defendants Samuel and Elias Bayer arranged to become acquainted with, and to lavish gifts upon, various army officers in order to secure special noncombatant service for two soldiers closely related to them and in particular to give defendant Radovich some $7,000 to induce him to keep these men within the United States. After a verdict of guilt, with recommendation of clemency, the three defendants were given sentences of imprisonment ranging from a year and a day for Radovich and eighteen months for Elias Bayer to two years for Samuel Bayer, with additional substantial fines for the two Bayers. All appeal.

Samuel and Elias Bayer are two brothers engaged in the manufacture of yarn and thread in a corporation under the name of Plymouth Thread & Rayon Corporation, and in the conversion of thread in another corporation under the name of Thread Converters, Inc. The servicemen whose assignments they are alleged to have influenced are Martin Bayer, son of Samuel, and Melvin Usdan, nephew to both of them. War Department records introduced at the trial show a series of transfers by which these soldiers were moved, sometimes with extreme rapidity, from unit to unit throughout Eastern United States. On December 15, 1942, both Martin and Melvin enlisted in the United States Army Air Corps and within a week both were assigned, as filing clerks, to Base Headquarters at Mitchel Field, New York. April 15, 1943, they were transferred to the First Fighter Command at Mitchel Field. August 20, 1943, they became clerks to the Medical Detachment at the same field. August 28, 1943, they were transferred to separate airborne engineering units, both designated for overseas duty. November 24, 1943, they were assigned to Major Radovich's First Air Commando Group. And four days thereafter, they were transferred to the Air Transport Command, then scheduled for duty in continental United States. The case for the prosecution rested upon evidence of the methods by which these transfers were effected.

The record showed that in January, 1943, the month following the enlistment of the two soldiers, Elias Bayer became acquainted at a New York night club with two army officers stationed at Mitchel Field. The relationship immediately took on considerable warmth, for at this very meeting, Elias agreed to assist the officers in obtaining uniforms at wholesale prices. Through these two officers, Elias became acquainted with one Lt. Col. Jacobson of the First Fighter Command; and all three officers became regular callers at the Plymouth Thread office and frequent companions of either or both Bayers on social occasions. In the spring of 1943, members of the Women's Army Auxiliary Corps were replacing the male clerical help at Base Headquarters and the two soldiers were assigned to a pool of men scheduled to be shipped to other fields. Col. Jacobson, however, procured their transfer to the First Fighter Command at Mitchel Field. Jacobson testified that the Bayers had not asked him to do "anything improper." The transfer, however, was not displeasing to them; and a few days thereafter, Samuel gave Jacobson a birthday party at the Waldorf-Astoria, presenting him with four new tires.

The transfer to the First Fighter Command put the boys directly under the supervision of Major Radovich, who was immediately introduced to Elias by one of the officers mentioned above. Of the entire group, he soon became the most frequent caller at the Bayers' office and the most constant recipient of their gratuities. In addition to uniforms, which, like those of the other officers, were paid for by Plymouth Thread, he received golf clubs, travelling bags, theatre tickets, and other amenities. In July, 1943, however, he decided to transfer the boys to another field. Radovich attributed his decision to the fact that rumors of the Bayers' generosity were circulating at Mitchel Field; the Bayers asserted that Radovich's object was to extort money. Whatever the motivation, there is no dispute that he did announce his intention to make this transfer, and that, dissuaded by Samuel Bayer, he finally transferred the boys only to the Medical Unit at the same field. It is likewise undisputed that over a period of about two weeks at the time of the transfer he received from Samuel Bayer a total of $1,900 or $1,950.

The assignment to airborne engineering units bound for overseas duty came just eight days later. The Bayers' attempts to obtain the intercession of two of their original army friends failed. In late August or early September, 1943, Major Radovich left Mitchel Field to assist Col. Cochran in the organization of the First Air Commando Group, a unit being organized at Goldsboro, North Carolina, and designed to operate behind Japanese lines in Burma. In this capacity Radovich had authority to request orders for the immediate transfer of men from other units; and on November 22, he issued a special order commandeering the services of Martin Bayer and Melvin Usdan and requiring them to report not later than November 25. Within a few days of the original assignment, he requested and obtained their retransfer to the Air Transport Command, scheduled at this time for domestic duty. It was uncontested that at the time this transfer was effected, Samuel Bayer sent Elias and an unnamed individual to deliver $5,000 to Radovich in the Goldsboro railroad station and that a few days after receiving the money Radovich mailed a bank cashier's check for $500 to the classification officer at Mitchel Field. The only question left in doubt was as to the motivating force for these payments. Radovich's statement, introduced in evidence, was that, being pressed by the Bayers to take Martin and Melvin out of the airborne division, he devised the double transfer as a scheme for accomplishing that result. Statements of the Bayers, on the other hand, asserted that Radovich, entirely unbeknown to them, assigned the soldiers to his Commando Group and then demanded $5,000 for their release.

Of the many grounds for reversal urged by defendants Bayer, only two require extended discussion. As indicated in the statement of facts, the Bayers' defense was that they were the victims of a scheme of extortion on the part of Radovich. It was their contention that the boys had not received sufficient basic training to be sent overseas, that Radovich's true duty was therefore to keep them in this country, and that their own conduct was the result of his threats to violate that duty. Regardless of the trial court's opinion of the merits of this defense, defendants were entitled to have it clearly presented to the jury. Bird v. United States, 180 U.S. 356, 361, 21 S.Ct. 403, 45 L.Ed. 570; Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402; Thomas v. United States, 6 Cir., 151 F.2d 183. The first serious question is whether it was so presented.

The District Court in its charge told the jury that it was necessary for the prosecution to show an agreement to defraud, followed by one of the alleged overt acts. Then, in the passage objected to by defendants, it stated:

"Counsel for the defendants Bayer claims that payments of money by defendant Samuel Bayer to defendant Radovich were made as the result of express or implied threats by defendant Radovich to improperly and unfairly include privates Martin Bayer and Melvin Usdan in the Air Commando Group organized for an immediate dangerous overseas mission, which would be a violation of his duty as an officer.

"The Government contends that such payments of money were made voluntarily by mutual agreement in the course of the conspiracy charged.

"If you believe from the evidence beyond a reasonable doubt that at any time during the period alleged these three defendants mutually agreed to defraud the United States as alleged in the indictment, and did some act in pursuance of such agreement, they would be guilty irrespective of whether the actual payment of money were made voluntarily or involuntarily. However, as to the payment of money, if you believe that they were coerced by the defendant Radovich, that is, that they would not have been made at all in whole or in part except for Radovich's threats, then such payments would not be the result of agreement nor any evidence of a crime. And if you so believe, and also are not satisfied beyond a reasonable doubt by other evidence in the case that the conspiracy existed as charged in the indictment, you should find all the defendants not guilty, as Radovich is not here charged with extortion.

"However, in your consideration of this phase of the case, I charge you that the matter of whether or not the payments were made at the suggestion of Samuel Bayer or upon the demand of Radovich, or whether the payments were made cheerfully or grudgingly, or whether or not they were greater than Samuel Bayer expected, are...