Daniel v. United States
Decision Date | 27 August 1956 |
Docket Number | No. 15758.,15758. |
Citation | 234 F.2d 102 |
Parties | C. A. DANIEL, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Lee S. Bane, W. F. Bane, Dallas, Tex., for appellant.
John C. Ford, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
This appeal is taken from an aggregate district court award to appellee of $6,000.00, which sum represents treble the statutory recovery of $2,000.00 for each of three fraudulent acts found to have been committed by appellant for the purpose of obtaining certain surplus property of the United States to which he was not entitled, in violation of the Surplus Property Act of 1944, as amended. The statute upon which appellee's recovery was based reads as follows:
The testimony reveals that, during 1946, appellant and three veterans, George Reese, William Adair and Albert Axe, all worked for the County of Dallas, Texas; that in the Spring of that year each veteran filed an application with the War Assets Administration office at Fort Worth, Texas, wherein each represented that he wished to purchase a Government surplus truck for use in his own business, rather than for resale;1 that, upon the basis of such individual representations by the aforenamed veterans, they were issued veterans' priority certificates enabling them to make priority purchases of such equipment; that veteran Reese used his certificate to purchase a two and one-half ton GMC Cargo Truck for $1,185.00 from the War Assets Administration at a sale held in March, 1946, at Camp Livingston, Louisiana, to which sale he was accompanied by appellant and for which purpose appellant provided the money at the sale site; that Reese never intended to buy this truck for his own use, as evidenced by the fact that he immediately delivered possession of said vehicle and subsequently transferred title thereto to appellant.
It was further shown that veteran Adair, by virtue of his having been issued a priority certificate based upon his representation of the need of such vehicle for his own use, became the purchaser of the same type vehicle for the sum of $1,049.00 at a War Assets Administration sale held at Camp Swift, Texas, on May 8, 1946; that on the following day, May 9, 1946, appellant gave Adair a check in this same amount to cover his purchase, whereupon Adair immediately delivered possession of the truck to appellant and subsequently conveyed title to him without ever having used the truck for any purpose of his own, as theretofore represented in his application for a priority certificate to authorize his purchase.
Similarly, the proof reveals that veteran Axe, by virtue of his veterans' priority certificate issued in reliance upon his aforesaid representation was allowed to purchase the same type vehicle at a sale held at Camp Livingston, Louisiana, on March 28, 1946, for the sum of $1,139.00; that Axe also never used his truck for his own purposes, but on May 9, 1946 was paid $1,139.00 by appellant therefor and delivered the vehicle to him, subsequently transferring title to him also.
The district court, sitting without a jury, stated its credibility findings and conclusion therefrom in its unreported oral opinion as follows:
Appellant's sole insistence is that the above quoted findings and inferences of the court are clearly erroneous, and palpably insufficient to support its judgment on the basis of the charge actually plead.2 He contends, in effect, that since the record is admittedly devoid of any direct testimony showing his complicity in any conspiracy with these veterans to make misrepresentations in their applications for such priority certificates, the court was not authorized to infer his involvement as a matter of law from the case made. As supporting this insistence, appellant relies upon partial deficiencies in the proof resulting from the Government's failure or inability to show he supplied the money prior to or at the time of purchase for any veteran other than Reese, and upon other testimony tending to negative his participation in any conspiracy with these veterans at the time their applications were made, such as Reese's assertion that he did not then know appellant, Adair's testimony that he never told appellant about making any application or receiving his priority certificate, and the further absence of any direct proof as to his knowledge of an application for priority ever having been made by Axe, the veteran who did not testify at the trial.
The obvious answer to this evidentiary argument, as we understand it, is that the trial court was not bound to accept this testimony, nor to attach credence to Adair's apparent attempt to exonerate appellant,3 but was justified in its ultimate conclusion of liability in view of the contrary proof as to appellant's employment relationship and association with the veterans at the time of their applications and the priority purchases, his fairly inferable knowledge of their eligibility as veterans for such priority vehicle purchases at prices substantially less than those for such trucks as may otherwise have then been available;4 his almost immediate acquisition of title thereto before each vehicle had ever been used by the veteran for any purpose of his own; his act in either furnishing the money for the purchase, as in the Reese transaction, or reimbursing the veteran in the exact amount of his purchase immediately upon delivery of the vehicle shortly thereafter, as in the Adair purchase; and finally, the inference that appellant either furnished the money for the Axe purchase,5 or that at least it was never actually contemplated that Axe would make the personal use of it represented in his prior application, as evidenced by his immediate delivery of possession and subsequent transfer of title to the truck to appellant before he could use it for any purpose of his own. In view of all this testimony and inferences reasonably flowing therefrom, certainly we may not set aside the district court's findings as "clearly erroneous." Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A. Furthermore, from our careful review of the entire record testimony, we can conscientiously claim no "definite and firm conviction that a mistake has been committed" which would justify reversal. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.
This is not a criminal proceeding, but a statutory, civil action for liquidated damages, and the Government was not required to prove any conspiracy between appellant and the veterans to file any false applications for the priority certificates beyond a reasonable doubt, but was only required to adduce either substantial evidence of his involvement in such a conspiracy, or his inducement of the misrepresentation as a "fraudulent trick, scheme or device" to enable him to procure surplus vehicles on a priority basis to which he was not then entitled under the Act. Acknowledging our duty under the rule to view the testimony and inferences therefrom in the light most favorable to the prevailing party below, we think the proof is adequate to support the award under either theory. See United States v. Rex Trailer Co., 7 Cir., 218 F.2d 880, affirmed 350 U.S. 148, 76 S.Ct. 219; cf. Russell v. United States, 5 Cir., 222 F.2d 197. Certainly, the proof was sufficient to make out a prima facie case of appellant's involvement in each of the transactions and liability to respond civilly in liquidated damages under the statute; and this not being a criminal case, his failure either to take the stand, or show that he was unable to testify, or even to offer any excuse whatever for his failure to testify in explanation of suspicious facts and circumstances peculiarly within his knowledge, fairly warrants the inference that his testimony, if produced, would have been adverse.6 As appropriately stated by this Court in Anderson v. United States, 185 F.2d 343, 346, a civil condemnation proceeding in which the claimant of an automobile forfeited for having been used in violation of...
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