336 U.S. 613 (1949), 228, Nye & Nissen, A Corporation v. United States

Docket Nº:No. 228
Citation:336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919
Party Name:Nye & Nissen, A Corporation v. United States
Case Date:April 18, 1949
Court:United States Supreme Court

Page 613

336 U.S. 613 (1949)

69 S.Ct. 766, 93 L.Ed. 919

Nye & Nissen, A Corporation

v.

United States

No. 228

United States Supreme Court

April 18, 1949

Argued March 3, 1949

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioners are a corporation and its president. An indictment charged them (and three employees of the corporation), in the first count, with conspiracy to defraud the United States from 1938 to 1945, in violation of § 37 of the Criminal Code (now 18 U.S.C. § 371), and, in six substantive counts, with filing false invoices with an agency of the United States in violation of § 35 of the Criminal Code (now 18 U.S.C. § 1001). The case involved fraudulent practices in the sale of eggs and cheese to the Army, Navy, and other government agencies. Petitioners were convicted on all counts.

Held:

1. As to the individual petitioner, there was no fatal variance between the conspiracy charged and the proof, since the evidence amply supported a finding by the jury of a single conspiracy continuing during the entire period. Pp. 616-617.

2. Evidence of the presentation of false invoices other than and in addition to those charged in the indictment was admissible on the issue of intent. P. 618.

3. The evidence was sufficient to support the finding of the jury that the individual petitioner aided and abetted the commission of the offenses charged in the substantive counts, and, since the case was submitted to the jury on that theory and the charge of the trial court to the jury was adequate, the conviction must be affirmed. Pinkerton v. United States, 328 U.S. 640, distinguished. Pp.618-620.

(a) The fact that some of the evidence of the substantive offenses was also evidence of the conspiracy is immaterial. P. 619.

(b) Where a conspiracy as well as a substantive offense is charged, it makes no difference so far as aiding and abetting is concerned whether the substantive offense is committed pursuant to the conspiracy. Pp. 619-620.

(c) The fact that, as to substantive offenses charged, a case might conceivably be submitted to the jury on either the conspiracy

Page 614

theory or on the theory of aiding and abetting is irrelevant; it is sufficient if the proof adduced and the basis on which it was submitted are sufficient to support the verdict. P. 620.

168 F.2d 846 affirmed.

Petitioners, a corporation and its president, were convicted on all counts of an indictment charging them and others with conspiracy to defraud the United States in violation of § 37 of the Criminal Code (now 18 U.S.C. § 371), and with filing false invoices with an agency of the United States in violation of § 35 of the Criminal Code (now 18 U.S.C. § 1001). The Court of Appeals affirmed. 168 F.2d 846. This Court granted certiorari. 335 U.S. 852. Affirmed, p. 620.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Nye & Nissen is a corporation which, during the years covered by the indictment, was engaged in the business of purchasing and selling eggs, butter, and cheese in San Francisco. Throughout this period, Moncharsh was president of the corporation, one of its directors, and the owner of one-third of the stock of the holding company which had sole ownership of Nye & Nissen. Moncharsh's mother owned a one-third interest in the holding company, while the other third was owned by one Baum, who lived in New York. Berman and Goddard were brothers-in-law of Moncharsh -- the former being city sales manager of Nye & Nissen in charge of the company's

Page 615

retail salesmen, the latter being [69 S.Ct. 768] shipping and receiving clerk. Menges was another employee.

During the period from 1938 to 1944, Nye & Nissen made large sales of its products to the Army and Navy, and, after December, 1943, to operators of various vessels having general agency contracts with the War Shipping Administration.

An indictment in seven counts was returned on June 20, 1945, against Nye & Nissen, Moncharsh, Berman, Goddard, and Menges. The first count charged the defendants with having conspired to defraud the United States from 1938 to 1945, in violation of § 37 of the Criminal Code, 18 U.S.C. § 88,1 now § 371, by designated fraudulent practices to which we will refer. The other six counts charged the defendants with violations of § 35 of the Criminal Code, 18 U.S.C. § 80,2 now § 1001, by misrepresenting

Page 616

in invoices presented to the War Shipping Administration in April and May, 1944, the weights, grades, and prices of specified sales of eggs and cheese.

Menges was acquitted. Berman and Goddard were found guilty on all counts, sentenced to a year and a day on each count, the terms to run concurrently, and fined $700. They did not appeal. Nye & Nissen was found guilty on all counts and fined $5,000 on each. Moncharsh was convicted on all counts and sentenced to two years' imprisonment on the first and to five years on each of the other six, all seven terms to run concurrently. He was also fined $5,000 on each count. On appeal, the judgments of conviction of Nye & Nissen and Moncharsh were affirmed. 168 F.2d 846. The case is here on a petition for certiorari which we granted because of doubts whether the conviction of Moncharsh on the substantive counts could be sustained under the theory of Pinkerton v. United States, 328 U.S. 640, on which the Court of Appeals seemed to rely.

Two preliminary questions are presented. It is argued in the first place that there was a variance prejudicial to Moncharsh between the conspiracy charged and the proof, in that the evidence tended to show the existence of two separate conspiracies of different characters and involving different persons. The contention is that the conspiracy charged was a continuing one from 1938 to 1945, and involved the circumvention of the Government's inspection system with relation to the sale of eggs. It is said that the proof showed two separate and distinct conspiracies -- the first embracing Berman, Goddard, Moncharsh, and Menges in an undertaking to defraud the United States by impeding and impairing the

Page 617

Government's inspection system with relation to the sales of eggs to the Army and Navy from 1938 to 1942; the second embracing Berman and Goddard alone in an agreement in 1943 and [69 S.Ct. 769] 1944 to file false vouchers with the War Shipping Administration. We need not take the space to relate why, under that theory, Moncharsh is said to have been prejudiced, because the argument that there was a variance seems to us to lack merit. The case was submitted to the jury on the basis of a single conspiracy throughout the period alleged in the indictment. That was proper, for, as we read the indictment, it charged a single conspiracy to defraud the United States in various ways: by grading and selling to agencies of the Government inferior products through frauds practiced upon its inspectors and representatives; by impeding and defeating the functions of government agencies in the inspection, grading, weighing, and purchase of eggs, butter, and cheese; by utilizing various schemes to circumvent and avoid the standards, grades, weights, and specifications to which the orders were subject, and by misrepresenting the grade, weight, and price of eggs, butter, and cheese. The fact that certain types of fraudulent practices occurred during one period, and other types at different periods, is without significance. The circumvention of the inspection system and the presentation of false invoices were part and parcel of the same conspiracy as charged and proved. There was an abundance of evidence, as the Court of Appeals held, from which the jury could conclude that there was one continuous and persistent conspiracy to defraud. It is conceivable that the jury might conclude that, beginning in 1943 or thereabouts, Moncharsh severed himself from the conspiracy, and that his subordinates carried it forward on their own. But we could not reverse them if that theory taxed their credulity.

Page 618

It is argued in the second place that the trial court erred in admitting against Moncharsh evidence of crimes similar to those charged in the substantive counts to prove the guilty intent with which the substantive acts were committed. Each of the six substantive counts charged the presentation of a separate false invoice. The evidence showed the presentation of eleven other false invoices. This was part of the evidence received in support of the conspiracy count. The trial court also admitted it at the conclusion of the case "for the sole purpose of proving guilty intent, motive, or guilty knowledge" of the defendants. Evidence that similar and related offenses were committed in this period tended to show a consistent pattern of conduct highly relevant to the issue of intent.3

The principal question in the case pertains to the charge concerning the substantive offenses and the sufficiency of the evidence to support them.

In Pinkerton v. United States, supra, a conspiracy and substantive offenses were charged. We held that a conspirator could be held guilty of the substantive offense even though he did no more than join the conspiracy, provided that the substantive offense was committed in furtherance of the conspiracy and as a part of it. A verdict on that theory requires submission of those fact issues to the jury. That was not done here. Hence, Moncharsh argues that he is entitled to a new trial.

The difficulty with that argument is that the case was submitted to the jury on an equally valid theory. The trial court charged that one

who aids, abets, counsels, commands, induces, or procures the commission of an act is as responsible for that act as if he committed it directly.

That theory is well engrained in the law. See

Page 619

§ 332 of the Criminal Code, 18 U.S.C. § 550,4 now § 2; United States v. Johnson, 319 U.S. 503, 518; United States v....

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