Harlow v. United States, 18865.

• Citation: 301 F.2d 361
• Decision Date: 30 April 1962
• Docket Number: No. 18865.,18865.
• Parties: James W. HARLOW, Charles E. Wilson and Thomas F. Addy, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

301 F.2d 361 (1962)

James W. HARLOW, Charles E. Wilson and Thomas F. Addy, Appellants, v. UNITED STATES of America, Appellee.

No. 18865.

United States Court of Appeals Fifth Circuit.

April 4, 1962.

Rehearing Denied April 30, 1962.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Trueheart, McMillan, Russell & Westbrook, San Antonio, Tex., for appellant James W. Harlow.

James R. Gillespie and Glenn B. Lacy, San Antonio, Tex., for appellant Charles E. Wilson.

Joel W. Westbrook, San Antonio, Tex. (appointed by this Court), for appellant Thomas F. Addy.

Russell B. Wine, U. S. Atty., San Antonio, Tex., Wm. A. Paisley, J. Frank Cunningham, Attys., Dept. of Justice Washington, D. C., for appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

TUTTLE, Chief Judge.

The three appellants are former civilian employees of the European Exchange System (EES) which was established to operate various facilities, including the well-known military Post Exchanges, for the benefit of United States servicemen and other authorized personnel stationed in Europe. The appellants have been convicted of certain offenses relating generally to their alleged participation in a scheme involving the solicitation and receipt of bribes and kickbacks from certain vendors to the EES.

The indictment was returned against appellants on April 19, 1957. The first count charged them with the conspiring amongst themselves and with "other persons to the grand jury unknown"¹ to defraud the United States, in violation of 18 U.S.C.A. § 371:²

"One: Of and concerning its rights to have the business affairs, activities and functions, of the said European Exchange System, honestly and efficiently administered, exercised and performed, free from unlawful impairment, obstruction, or corruption, and collusion between employees of said agency and persons seeking to sell food products and other merchandise to said agency.

"Two: Of and concerning its right to have contracts for the purchase of foodstuffs and other merchandise, which were entered into by EES, awarded in accordance with the established procedures and in an honest and businesslike manner, free from the solicitation and acceptance of money by the employees of said EES from persons, firms and corporations, as bribes, kickbacks, commissions or otherwise.

"Three: Of and concerning its right to conscientious, faithful and honest services, decisions, actions and performances of the duties of its employees in said EES, free from corruption, partiality, improper influence and dishonesty, and from the solicitation or acceptance of money and things of value by its said employees from persons, corporations, and firms engaged in selling and endeavoring to sell foodstuffs and other merchandise, products and property to the said EES."

The second and third counts of the indictment charged the appellant Wilson with soliciting bribes on two occasions from Robert T. McLane, a representative of firms selling to the EES, in violation of 18 U.S.C.A. § 202.³ Counts four through nine charged the appellant Harlow with receiving bribes from Robert T. McLane and Henrik Emborg (also a representative of suppliers to the EES), in violation of 18 U.S.C.A. § 202.

The appellants were convicted as charged on June 16, 1960, in the United States District Court for the Western District of Texas, San Antonio Division. Judgments were entered and sentences imposed on February 14, 1961. This appeal followed.

Before discussing the numerous and varied contentions urged by the appellants, it would be well to describe briefly the scheme of corruption which the Government attempted to establish. In 1950, Harlow was Chief of the Food and Services Branch of the EES in Germany. In this capacity he possessed authority to negotiate for the purchase of various supplies and services by the EES from vendors throughout Europe. Appellant Wilson was Harlow's assistant; appellant Addy was the EES Chief of Security. Very simply, the Government sought to prove that the appellants and other civilian employees of the EES, known collectively as "the organization," induced certain vendors to pay them for the privilege of doing business with the EES. Those who paid were rewarded with contracts to supply the EES; those who did not received less favorable action on their bids. Bribe payments were allegedly channelled to the members of "the organization" through certain numbered bank accounts which "the organization" had established with various banks in Switzerland. This lucrative scheme is supposed to have continued from 1950 through 1953, at which time "the organization" was exposed and its illegal operations brought to a halt by the authorities.

The first contention pressed by the appellants is that the trial court abused its discretion in refusing to dismiss the indictment on the ground that the Government "prejudiced appellants' ability to prepare for trial by deliberate and unwarranted delay in bringing the case to trial." The argument here is that the Government had sufficient information to try appellants as far back as 1953, and that the failure of the Government to bring them to trial until June, 1960, prejudiced their defense because various witnesses and records which might have aided their defense became unavailable during the seven year delay. We find no merit in this claim.

It is well established that the right to a speedy trial guaranteed by the Sixth Amendment and implemented by Rule 48(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.⁴ does not arise until after a prosecution is instituted against the accused. Any delay occurring between commission of the offense and commencement of prosecution is controlled exclusively by the applicable Statute of Limitations. Hoopengarner v. United States, 6 Cir., 270 F.2d 465. In the instant case, criminal proceedings were formally initiated against the appellants when the indictment was returned against them on April 19, 1957. Since the indictment was returned within the allowable statutory period,⁵ the only delay of which appellants might complain is the delay between the date the indictment was returned i. e. April 19, 1957 and the date they were brought to trial i. e. June 6, 1960.

There are two reasons why appellants cannot succeed in their claim that they were denied a speedy trial. First, we do not think that the delay could be characterized as "unnecessary" or "unreasonable." Prior to April, 1957, and up to about April, 1959, the Government was making a bona fide and vigorous effort to gather information about the Swiss bank accounts. These accounts played a primary role in the alleged conspiracy, and information concerning them was necessarily important to the Government's case against the appellants. Though the Government's effort ultimately proved fruitless, due to the unwillingness of the Swiss authorities to divulge any information about the bank accounts, this does not mean that the time spent trying to obtain this evidence constituted unnecessary and unreasonable delay. See Foley v. United States, 8 Cir., 290 F.2d 562. Appellants were arraigned soon after the Government learned that the information concerning the bank accounts would not be forthcoming. From that time until the trial, a period of about one year, the appellants made various discovery motions. This later delay, therefore, resulted from their own actions, and they cannot now complain that it was unnecessary and unreasonable. United States v. Lustman, 2 Cir., 258 F.2d 475, cert. denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109.

Furthermore, even if the delay was unreasonable, appellants would be in no position to complain of it, since they never demanded an earlier trial. It is undisputed that the Government would have and could have gone to trial prior to June, 1960, if the appellants had so requested, despite the continuing unavailability of the information regarding the Swiss bank accounts. But appellants never complained of the delay until they made their motions to dismiss when the time for trial had arrived. The settled rule in the federal courts is that, under such circumstances, the appellants waived their right to challenge the legality of the Government's delay in bringing them to trial. United States v. Lustman, supra.

The appellants next contend that the conspiracy count should have been dismissed on the ground that it was too "vague and indefinite." This argument is likewise without merit. The indictment, in substance, charged the appellants with conspiring with "others" to defraud the United States of its right to have its European Post Exchanges honestly administered by agreeing to receive bribes from McLane, Emborg "and others" with respect to the sale of foodstuffs and "other merchandise" by these vendors to the EES. The gist of appellants' argument here is that the indictment should have specified the "other conspirators," and "other vendors" and the "other merchandise." We do not think such specificity was required. The indictment provided appellants with adequate information to prepare their defense. It outlined the general scope of the conspiracy and charged that it was part of the conspiracy that appellants would cause vendors or agents of vendors who were supplying merchandise to the EES to pay money into numbered bank accounts in Switzerland for the benefit of appellants. Numerous overt acts in furtherance of the conspiracy were detailed. A bill of particulars voluntarily submitted by the Government set forth (1) that McLane and Emborg were the agents of vendors alleged to have been induced to pay bribe money; (2) the numbers of the numbered bank accounts; (3) the name and location of the banks; (4) the dates and amounts of money so paid; (5) the names and addresses of the vendors represented by Emborg and the type of foodstuffs sold by them; (6) the manner in which the appellants caused the bribe money to be deposited in the numbered accounts; and (7) the...