225 F.2d 319 (6th Cir. 1955), 12172, Lazarov v. United States
|Docket Nº:||12172, 12173.|
|Citation:||225 F.2d 319|
|Party Name:||Bennie LAZAROV, Jacob Carl Epstein, Appellants, v. UNITED STATES of America, Appellee.|
|Case Date:||June 28, 1955|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Certiorari Denied Nov. 7, 1955. See 76 S.Ct. 140.
William Gerber, Memphis, Tenn., L. E. Gwinn, Memphis, Tenn. (Irving M. Strauch, Memphis, Tenn., on the brief), for appellants.
Millsaps Fitzhugh, U.S. Atty., Warner Hodges, Asst. U.S. Atty., Memphis, Tenn. (Warren Olney, III, Washington, D.C., Edward N. Vaden, Memphis, Tenn., on the brief), for appellee.
Before ALLEN, McALLISTER, and MILLER, Circuit Judges.
McALLISTER, Circuit Judge.
This appeal from a criminal conviction is largely a fact case. A great part of the evidence upon which the government relies does not sustain the conviction. Many of the contentions of appellants that there is no substantial evidence to support a verdict of their guilt, fail in the light of the complete proofs. Accordingly, a somewhat developed statement of the facts and the testimony is necessary to an understanding and adjudication of the case.
Appellants, Lazarov and Epstein, were charged in an indictment with conspiring to defraud the United States by impairing, obstructing, and defeating the lawful right and function of the government in the sale and disposal of certain salvage rope by the Army Corps of Engineers. Jointly indicted with Lazarov and Epstein, was Don J. Kimberling, an official of the government. Kimberling was found not guilty by the jury. Lazarov and Epstein were convicted, and they appeal.
Appellants claim that the verdict was not sustained by substantial evidence that appellants conspired to commit the offense charged; that the trial court erred in its instructions to the jury, and in refusing to instruct as requested by appellants; and that the argument to the jury by the district attorney constituted prejudicial reversible error.
To state the facts in somewhat more detail, the offense alleged was that the three men above named conspired to defraud the government in the purchase of rope which appellants bought at the depot of the Army Engineers located on the right bank of the Mississippi River at West Memphis, Arkansas. The rope in question was sold to appellants at auction at the government depot, but since the exact quantity in weight was not ascertained at the time of sale, the entire amount on hand was sold, appellants agreeing to pay therefor $7.53 per hundred pounds. The Army Engineers had no weighing scales at their depot, and it was, therefore, agreed that appellants, as purchasers, would take the rope over to the weighing scales of the Southern Tin Compress Company in Memphis; that the rope would there be weighed by an official government weighmaster; that weight tickets certifying the actual weight of the rope would then be issued by the weighmaster; and that the weights so certified should be conclusive as to the actual weight of the rope and, accordingly, as to the amount of money to be paid to the government by appellants, Lazarov and Epstein.
The evidence discloses that appellants Lazarov and Epstein were partners operating the L. & E. Rag and Paper
Company, and it is the claim of the government that they caused the rope to be loaded in their trucks at the Engineers depot for transportation to the official weighing scales in Memphis, Tennessee; that, instead of taking the rope directly to the scales, they caused it to be taken first to their yard, where a substantial portion-- an aggregate of 5, 160 lbs.-- was removed; that they then transported the balance to the scales where, consequently, only a portion of the rope loaded at the government depot was weighed and certified; and that appellants paid only for the amount of rope so weighed, thus defrauding the government out of that amount of the purchase price represented by the rope which appellants caused to be removed at their yard, before it was weighed.
Kimberling was the salvage officer of the Army Engineers at its depot in West Memphis. It was his duty to follow, in a government car, the trucks of the purchasers of material to be weighed-- in this case, the trucks of appellants; to observe the weighing of the rope; and to certify to the weights from the official weight tickets, in order that the government should receive proper payments for the rope according to the actual weights. It is the further claim of the government that Kimberling conspired with appellants to defraud the government; that he knew of the removal of a quantity of rope at appellants' yard before it was weighed; and that he corruptly certified to the official weights, knowing that they did not correctly represent the amount of rope which appellants had received at the government depot. A reading of the complete transcript of the testimony indicates that the government was of the opinion that Kimberling was the key man in the conspiracy for the obvious reason that it considered that the claimed fraud could not have been carried out without his connivance.
Appellants claim that all of the rope was weighed first at the official scales; that thereafter, a certain amount of rope was removed from some of the trucks for the purpose of mixing it with an inferior grade of rope in order to get a better price for the batch; that appellants, after purchasing the rope from the government, sold it at an increase in price to A. Karchmer & Sons, of Memphis; that, after the rope was weighed, they transported it to Karchmer's place of business, where it was loaded into boxcars for shipment to Karchmer's customers in New York; and that they paid the government for all the rope they secured at the Engineers depot, and which they subsequently sold to Karchmer.
It appears that the Federal Bureau of Investigation first became interested in the matter when it received certain information as a result of an anonymous tip. For a considerable time before the sale at auction of the rope in question, the agents of the Bureau had been in close communication with the chief officer of the Army Engineers at West Memphis, Colonel Allen F. Clark, Jr. In fact, the first intimation received by Colonel Clark that anything was amiss, was at the time he was interviewed by the agents and was told that they had information that government property was being stolen from the depot. When Colonel Clark received this information, he immediately caused the Army Engineers to undertake an investigation of its own, and, at the same time, cooperated with the Bureau.
As a result of his investigation and the information received from the Federal Bureau of Investigation, Colonel Clark discharged Kimberling, who had served fourteen years with the Army Engineers as a civilian employee. But in spite of the charges against Kimberling and his indictment in the present case, and the insistence of the agents of the Federal Bureau of Investigation that he was the key man in the conspiracy to defraud the government, Colonel Clark, as he testified upon the trial of this case, stated that after many weeks of investigation, he came to the conclusion that Kimberling was innocent of the crime charged, and that he was to be blamed in the matter only because of his negligence, apparently,
on the ground that he did not follow appellants' trucks closely enough, or lost them in traffic between the government depot and the weighing scales, and improperly certified as to the weights. Kimberling himself, upon his discharge from the Army Engineers, demanded a hearing, in accordance with his rights under Civil Service, and appeared before the official board of investigation, at which time he gave an account of his actions, submitted to examination, and insisted not only that he was not guilty of conspiracy, but denied that he had been guilty of any negligence whatever in the matter. His discharge, however, was sustained, as has been said, on the ground of negligence. When the agents of the Federal Bureau of Investigation questioned Kimberling before the indictment had been returned, he told them, in answer to their advice to him, that he did not care to consult a lawyer before discussing the matter with them; and he forthwith gave them a voluntary statement, which was reduced to the form of an affidavit, and sworn to by him, in which he set forth the manner in which he had followed the trucks from the government depot to the weighing scales; and he therein declared that he knew that every one of the trucks had been weighed before any rope was removed at appellants' premises. As heretofore stated, the jury found that Kimberling was not guilty of the crime charged against him of conspiring to defraud the government.
The government's case against Lazarov and Epstein is based upon the testimony of John Rayford, a truck driver for appellants, as well as upon the testimony of several agents of the Federal Bureau of Investigation, and circumstances, which the government contends, prove the guilt of appellants.
Rayford, a temporary employee of appellants, testified that a quantity of the rope in question which he hauled from the government depot was removed from appellants' trucks before it was weighed at the scales of the Southern Tin Compress Company. He further testified that Epstein, who was at appellants' premises, instructed him, after such rope had been removed, to take the truck with the balance of the rope down to the scales of the Southern Tin Compress Company and have it weighed; and that he followed these instructions. If Rayford is to be believed, and if the jury believed him, the government proved its case on his evidence.
Rayford's testimony, however, is attacked by appellants on the ground that it is inconsistent, contradictory, and uncertain; and it is...
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