Opper v. United States

• Decision Date: 07 June 1954
• Docket Number: No. 11711.,11711.
• Citation: 211 F.2d 719
• Parties: OPPER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

211 F.2d 719 (1954)

OPPER v. UNITED STATES.

No. 11711.

United States Court of Appeals Sixth Circuit.

March 26, 1954.

Writ of Certiorari Granted June 7, 1954.

John M. Kelley, Jr., Miami, Fla. (Francis C. Canny, Dayton, Ohio, Alexander Campbell, Ft. Wayne, Ind., John M. Kelley, Jr., Miami, Fla., on the brief), for appellant.

Richard H. Pennington, Asst. U. S. Atty., Cincinnati, Ohio (Hugh K. Martin, Thomas Stueve, Richard H. Pennington, Cincinnati, Ohio, on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

Writ of Certiorari Granted June 7, 1954. See 74 S.Ct. 867.

ALLEN, Circuit Judge.

Appellant William J. Opper and Robert George Hollifield, Sr., were jointly charged, in an indictment containing four substantive counts and a conspiracy count, with violating Title 18 U.S.C. § 281 and conspiring to violate § 281 and to defraud the United States within the meaning of Title 18, § 371. Count 1 of the indictment in substance charged that Hollifield, an employee of the United States, agreed to receive $1750 as compensation from appellant for services to be rendered in relation to purchase requests in which the United States was directly interested, the services to consist of Hollifield's recommending the approval and procurement by the Air Force of the United States of certain types of sun goggles and ski goggles. Count 2 charged that on March 1, 1951, in Dayton, Ohio, Hollifield received from appellant as compensation for the rendition of such services $50. Count 3, a charge similar to Count 2, set forth the receipt by Hollifield from appellant of $250 on or about March 1, 1951, while Count 4 charged the receipt of $200 from appellant under similar circumstances on the 5th day of August, 1951. As to each of these counts it was charged that appellant aided, abetted, counseled, induced and procured the defendant Hollifield unlawfully to receive such compensation for the services rendered. Title 18 U.S.C. § 2.

Count 5 charged a conspiracy between Hollifield and appellant to cause Hollifield to perform such unlawful acts between October 1, 1950, and September 26, 1951. Thirteen overt acts were set forth, including the receipt of several sums of money by Hollifield from appellant.

A motion for severance was denied and the defendants were tried together. The jury found appellant guilty on all counts. The court sentenced him to imprisonment for two years on Count 1 and one year on Count 4, the sentences to run consecutively, to pay fines of $500 on Counts 2 and 3, and to be imprisoned for a period of one year and a day on Count 5, the sentence on Count 5 to run concurrently with the sentences on Counts 1 and 4.

Hollifield was employed by the United States Air Force at Wright Field, Dayton, Ohio, being a designer supervisor (aviation clothing and equipage). In this position he worked under the general supervision of the Chief, Medical Specifications Branch, with opportunity for "wide use of creative initiative and independent judgment in planning and supervising the accomplishment of land survival equipment." His duty was to review and discuss first samples produced "to determine compliance with specifications." As project supervisor of survival kits, it was Hollifield's duty to pass upon the conformity to specifications of the various items in the kit, including goggles. Appellant had been acquainted with Hollifield for several months, having met him in October, 1950, and having seen him some 15 times during the period involved. A resident of Chicago and subcontractor on various projects for the equipping of survival kits, appellant submitted to two prime contractors compasses and goggles for the kits. It was proved that certain goggles which had been supplied by appellant to a prime contractor had been recommended for rejection by the Chief, Physiology Branch Aero Medical Laboratory, on January 23, 1951, because of "marked deviations" from the applicable specifications. Hollifield, as admitted by appellant, had discussed this matter with appellant. Shortly after the recommended rejection Hollifield secured a conference with Frederick Moss, a project engineer of the Physiology Branch, and other employees of the Air Force. Appellant attended this conference and in his presence Hollifield urged that the goggles be accepted. At the conference it was concluded that Hollifield should embody his reasons for recommending acceptance in a routing and record sheet and this was done. The routing and record sheet stated: "Confirming conversation between Messrs. F. Moss and O. Strand of your Branch and Messrs. R. Hollifield and N. Murray of Medical Specialties Branch, it would be appreciated if your office would reconsider the use of the goggles submitted to determine their conformity with subject item, in view of the following information." While the routing and record sheet was signed by Randall W. Briggs, it bore the initials of Hollifield and, in asking for reconsideration, stated substantially the reasons Hollifield had advanced at the oral conference above described as to why the rejection of the goggles should be changed. Reconsideration was granted and the use of the substitute goggles submitted by appellant was recommended on February 3, 1951.

At the trial a written statement of appellant was introduced in which he admitted payment of $1,000 to Hollifield in April, 1951, and payment of $200 several weeks later. Hollifield telephoned long distance to appellant and flew to Chicago from Dayton on April 14, 1951. The two payments, totalling $1,200, appellant declared to an FBI agent, constituted a loan made because Hollifield told appellant on this visit that he was about to lose his home. Appellant said he had never seen Hollifield's home and that he did not know of his own knowledge that Hollifield had a home. He said that no interest was charged, that he obtained no security of any kind, that he had no receipt nor any record to evidence the loan. No promissory note was claimed to have been received.

Appellant contends that all of his statements, both oral and written, and several made by Hollifield which were received in evidence should have been stricken from the record upon the ground that there was no corroborative evidence to render admissible these statements claimed to be confessions. He also contends that the motion for acquittal should have been granted on the ground that there was no competent evidence of appellant's guilt. This is on the basis...