Bartlett v. United States

• Citation: 166 F.2d 920
• Decision Date: 24 March 1948
• Docket Number: 3553.,No. 3552,3552
• Parties: BARTLETT et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

166 F.2d 920 (1948)

BARTLETT et al. v. UNITED STATES.

Nos. 3552, 3553.

Circuit Court of Appeals, Tenth Circuit.

March 3, 1948.

Rehearing Denied March 24, 1948.

COPYRIGHT MATERIAL OMITTED

H. A. Kiker, of Santa Fe, N. M. (Chas. C. Spann, of Santa Fe, N. M., and Theodore S. Johnson, of Hobbs, N. M., on the brief), for appellants.

Everett M. Grantham, U. S. Atty., of Santa Fe, N. M. (Maurice Sanchez, Asst. U. S. Atty., of Albuquerque, N. M., on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

PHILLIPS, Circuit Judge.

Bartlett and Edwards were charged by an indictment containing five counts. The first count charged a conspiracy to violate 18 U.S.C.A. § 80. The remaining counts charged violations of 18 U.S.C.A. § 80, the material parts of which are set out in note ¹.

Count two charged that, on or about August 23, 1945, Bartlett and Edwards "did knowingly and wilfully, by means of a certain scheme, falsify, conceal and cover up a material fact in a matter within the jurisdiction of the Office of Price Administration, an agency of the United States, in this:

"That * * * Bartlett and * * * Edwards, at the time and place aforesaid, did devise a certain scheme whereby * * * Bartlett prepared and presented to * * * Edwards, who was a Ration Bank Teller at the Lea County State Bank, at Hobbs, New Mexico, a false and fictitious ration deposit slip, calling for the deposit of 70,000 pounds of sugar credits to the account of Dr. Pepper Bottling Company, Hobbs, New Mexico, a trade name under which * * * Bartlett did business and which * * * deposit * * * was falsely and fictitiously represented as being supported by a like amount of sugar ration stamps, whereas in truth the * * * deposit was not supported by * * * any sugar ration stamps, and no sugar ration stamps were surrendered to the * * * Bank or to * * * Edwards."

Count three charged a like offense on December 6, 1945, with respect to another deposit. Count four charged a like offense on December 13, 1945, with respect to another deposit. Count five charged that Bartlett and Edwards, on December 13, 1945, made and used, and caused to be made and used, a false account, knowing the same to contain false and fictitious statements and entries in a matter within the jurisdiction of the Office of Price Administration.

The trial court held that the conspiracy was merged in the substantive offenses. Bartlett and Edwards were tried and convicted on counts two, three, four, and five. Bartlett was sentenced to imprisonment for a period of five years on each of counts two, three, four, and five, the sentences to run concurrently, and was fined $10,000 on each of counts two, three, and four. Edwards was sentenced to imprisonment for a term of one year on each of counts two, three, four, and five, the sentences to run concurrently.

Bartlett was the owner of a bottling plant at Hobbs, New Mexico, and held the franchise for the bottling and distribution of a beverage known as Dr. Pepper, and was an industrial user of sugar. During the year 1945, a ration banking plan, which had been set up by appropriate regulations of the Office of Price Administration, was in operation and sugar ration credits were handled by designated banks in much the same manner as ordinary bank deposits. Under the plan, an industrial user of sugar would deposit his sugar evidence in a designated bank and would be given credit therefor and would draw sugar checks against his sugar credits in the bank.

The Lea County State Bank at Hobbs, New Mexico, hereinafter called the Bank, during the year 1945, was a sugar ration bank under the Office of Price Administration. Edwards was the ration bank teller and had direct charge of all rationing, and had custody of all rationing books and records. Bartlett carried a sugar ration banking account in the Bank. He had made application to the Office of Price Administration for an allotment of sugar for the year 1945, and had been allotted 25,475 pounds for that year. The allotment was sent to him in the form of quarterly sugar ration checks issued by the Office of Price Administration, such being the only method used by the Office of Price Administration to place sugar credits in the hands of an industrial user. Sugar stamps were not issued to an industrial user. Prior to August, 1945, Bartlett's largest single deposit of sugar ration evidence was 11,829 pounds. Between August 23, 1945, and December 13, 1945, Bartlett prepared and presented to the Bank 11 deposit slips calling for the deposit to his credit of 70,000, 140,000, 96,120, 95,000, 95,050, 156,000, 250,000, 59,870, 80,084, 2,108, and 3,000 pounds of sugar, respectively. The original and duplicate deposit slips were introduced in evidence. The first eight deposits listed, aggregating 962,040 pounds of sugar credits, were represented on the deposit slips as being supported by the surrender of a like amount of sugar stamps. Such eight deposits were received and the deposit slips initialed by Edwards. The three remaining deposits were represented on the deposit slips as being supported by the deposit of sugar ration checks and were received and the deposit slips initialed by other tellers in the Bank. With the deposit slips, Bartlett deposited envelopes purporting to contain the sugar stamps or sugar checks. Bartlett was given credit on the books of the Bank for such deposits by Edwards. He drew sugar checks against such credits which checks were honored by the Bank.

Edwards' employment with the Bank ceased on December 15, 1945. Jesse Combs succeeded Edwards as ration teller at the Bank.

Combs testified that he assisted Edwards in her work as ration teller in December, 1945, before the termination of her employment on the 15th of that month; that he had a conversation with Edwards about the 12th or 13th of December, 1945, respecting Bartlett and his sugar account; that Edwards asked him to do business with Bartlett as she had been doing it; that Edwards stated Bartlett would bring in sugar deposits, accompanied by envelopes supposed to contain sugar stamps but which would, in fact, contain money; that Bartlett's sugar account would be credited with such deposits, and that if Combs would continue that practice with Bartlett's sugar account, it would be worthwhile to Combs; that she had made several hundred dollars in one month; and that he declined to enter into such an arrangement; that in a conversation a day or two later, Edwards asked him if he had changed his mind and he answered in the negative.

Combs further testified that after Edwards left the employ of the Bank, Bartlett "asked me if I had changed my mind about Trudy Edwards' deal," and that Combs told him he "didn't want to do it"; that he had about four conversations with Bartlett in the Bank; that the second conversation was two or three weeks after the first; that Bartlett asked for a statement of his ration account which Combs gave him and then asked him "if I wanted to make some money, and transact business with him, and post these false deposits to these accounts"; that he told him his answer still was no; that the third conversation was about two or three weeks later when Bartlett came for his ration statement; that in the final conversation with Bartlett, Bartlett asked him if he had changed his mind and would he do what Edwards had been doing, and when he answered no, Bartlett asked him if he knew of any other bank that would make the same deal with him or if there was anybody in the Bank that would make the deal, and that Combs told him he did not know.

In January, 1946, Charles C. Hopkins, who was then Chief Investigator of the Sugar Section of the Office of Price Administration, investigated Bartlett's sugar transactions. On January 11, 1946, he and John L. Moffett, Regional Enforcement Attorney, interviewed Bartlett. Hopkins told Bartlett he wanted to check his sugar ration account and his sugar purchases. After some delay, Bartlett produced his ration bank account and canceled checks and deposit slips. Most of the deposit slips purported to be supported by stamps. Hopkins asked Bartlett where he obtained such stamps. Bartlett replied that in 1943, he bought a lot of syrup from a Mr. Dyer whom he believed lived in New York; that he purchased 14 cars of syrup, each containing from 100 to 125 barrels of syrup; that after he received the syrup, he noticed it was going to spoil and concluded he had better dispose of it; that he made arrangements to dispose of the syrup to various franchise dealers of the Dr. Pepper Company; that he received stamps for the syrup; that he did not get any particular amount of stamps, just whatever anyone could afford to give him; that he had an account of such transactions on an envelop but threw it away; that he did not care to name anyone because if he had done wrong, he did not want to involve "any of these people." Hopkins interviewed Bartlett again on January 14. At that time, he had a recapitulation of all the ration bank checks issued by Bartlett and asked Bartlett to identify each check and the recipient of the sugar thereunder. Bartlett identified each check and the bottling company that received the check. Hopkins then inquired how Bartlett could issue all of such checks and Bartlett replied that on four or five different occasions in 1945, a man who was a stranger to him had come to his place of business and sold him stamps; that each sale was by a different person; that he paid $2 to $15 for 100 pounds of sugar stamps and that he received the same amount when he issued the checks; that if he had paid $2 a hundred, he charged that, and if he had paid $15 a hundred, he charged that. Bartlett further stated that on four or five occasions, an unknown person drove up to his place in a big automobile with Washington, D. C., license plates; that the back of the automobile was filled with rolls of stamps; that he purchased as many as he could dispose of; that the...