Nye & Nissen v. United States

• Decision Date: 22 July 1948
• Docket Number: No. 11308.,11308.
• Citation: 168 F.2d 846
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: NYE & NISSEN et al. v. UNITED STATES.

168 F.2d 846 (1948)

NYE & NISSEN et al. v. UNITED STATES.

No. 11308.

Circuit Court of Appeals, Ninth Circuit.

June 21, 1948.

Rehearing Denied July 22, 1948.

COPYRIGHT MATERIAL OMITTED

Joseph B. Keenan, of Washington, D. C., and Harold C. Faulkner, A. J. Zirpoli, William M. Malone and Raymond L. Sullivan, all of San Francisco, Cal., for appellants.

Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., and John S. Pratt, Lafayette E. Broome and John M. Kelley, Jr., Sp. Assts. to the Atty. Gen., for appellee.

Before DENMAN, HEALY and BONE, Circuit Judges.

DENMAN, Circuit Judge.

The Nye & Nissen corporation, Abraham Moncharsh, Henry Berman and Ruby Goddard were convicted after a trial before a jury upon all counts of an indictment charging them with conspiracy to defraud the United States, 18 U.S.C.A. § 88, and with filing six false claims with a government agency, 18 U.S.C.A. § 80. Moncharsh and the corporation alone have appealed.

Nye & Nissen was a California corporation which for many years carried on an extensive business in purchasing and selling eggs, butter and cheese. Moncharsh was its president and was active in the conduct of its affairs. Henry Berman had been employed in various capacities by the corporation or its subsidiaries, and ultimately became manager of the City Sales Division of the corporation. Ruby Goddard was a shipping and receiving clerk, who made sales and deliveries on behalf of the corporation. A fifth codefendant, Edward Menges, who worked under Goddard, was acquitted.

During the period from 1938 through 1944, the Nye & Nissen corporation made numerous large sales of its products to the Army and the Navy. After December 1943, the corporation also sold large quantities of products to vessels which were operated by various shipping companies under general agency contracts with the War Shipping Administration. The charges upon which appellants here were convicted are based upon appellants' fraudulent conduct in connection with these transactions with the government.

I. 18 U.S.C.A. § 88 makes it an offense for two or more persons to conspire "to defraud the United States in any manner or for any purpose." Count I of the indictment charged that from about January 1, 1938, and continuing to June 20, 1945, defendants conspired to defraud the United States in several ways: by delivering, grading, selling, etc. inferior products to the War Shipping Administration, War Department and Navy Department through frauds and deceptions practiced upon them; by obstructing the inspection of such products by the government; and by avoiding the standards to which purchases of products were subject through false grading and weighing. This is followed by an allegation that it was "a part of the plan" that defendants would place false inspection stamps on cases of eggs; would misrepresent the grade, weight and price of eggs, butter and cheese; and that they would employ other tricks and schemes which are described in detail. The indictment concludes with an allegation of several overt acts.

Appellants complain at the outset that this count is insufficient because it fails to allege clearly and distinctly what agreement the defendants were supposed to have made; and secondly, because it is duplicitous in alleging more than one conspiracy.

It was held in Hamner v. United States, 5 Cir., 134 F.2d 592, relied upon by appellants in this connection, that an allegation that defendants conspired to defraud the United States, followed by allegations of what the defendants did in fact do, does not meet the requirement that the agreement be clearly and distinctly alleged. No such inferential method of pleading was adopted in the present case. The allegation that defendants conspired to defraud the United States is followed, not by allegations of what the defendants did, but rather by a detailed statement of the things which they planned to do.

Even so, appellants complain that it was not sufficient to allege that defendants conspired to defraud the United States "by impeding, impairing, obstructing, and defeating the lawful functions of the United States Department of Agriculture, War Department, and Navy Department in the inspection, grading, weighing, and purchase of butter, cheese and eggs." This, according to appellants, is a mere statement of legal conclusions and fails to describe any agreement with the required certainty.

This general allegation does not stand alone. It is followed by a detailed description of the means by which the conspirators planned to impede, etc., the government's inspection functions. Taken in context, it is sufficiently definite to inform the defendants of the charges against them. It shows "certainty to a common intent" and greater particularity is not required. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 462, 86 L.Ed. 68. In the Glasser case it was held sufficient to allege that defendants conspired to "`defraud the United States of and concerning its governmental function to be honestly and faithfully and dutifully represented in the courts of the United States' * * * `free from corruption, improper influence, dishonesty or fraud,'" such statements being followed by an allegation respecting the means to be used in accomplishing the conspiracy. The allegations in the present case are no less definite.

Appellants' contention that Count I is duplicitous is based on the fact that the War Shipping Administration did not come into existence until 1942, four years after the date of the alleged commencement of the continuing conspiracy. Appellants reason that since no conspiracy formed in 1938 could have contemplated defrauding the War Shipping Administration, the indictment in effect alleges two separate and distinct conspiracies: one in respect to the departments and agencies other than the War Shipping Administration and a subsequent one in respect to the War Shipping Administration alone.

It would seem questionable whether we would be justified in saying, on the basis of the indictment alone, that defendants in 1938 could not have contemplated the future creation of governmental agencies to engage in the purchase of eggs. However that may be, the conspiracy charged here is a "continuing" one, the constant objective of which was to deceive agencies of the United States as to the grade or quality of the products handled by Nye & Nissen for sale to the United States. "Where a common thread runs through all of the actions and a common purpose animates all of the conspirators, the fact that many persons come into, and many acts are embraced in, the conspiracy does not make the charge duplicitous by charging many instead of one conspiracy." United States v. New York Great A. & P. Tea Co., 5 Cir., 137 F.2d 459, 463. See also, United States v. Austin-Bagley Corp., D.C., 24 F.2d 527. The situation here resembles that in Rose v. United States, 9 Cir., 149 F.2d 755, where the indictment charged a continuing conspiracy to violate several statutes, one of which had not been passed at the date the conspiracy was formed. Paraphrasing what we said there: The conspiracy was unlawful as to the War and Navy Departments, and continued to be unlawful as to the War Shipping Administration.

The mere fact that it was grammatically possible to have alleged a separate conspiracy against the War Shipping Administration in a separate count is not in itself material, although appellants appear to suggest otherwise. A single conspiracy may embrace several related conspiracies. And the rule is settled that a single conspiracy may have as its object two or more wrongful acts, and that an indictment charging such a conspiracy is not duplicitous for that reason. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23.

The remaining six counts of the indictment each charges, under 18 U.S.C.A. § 80, that defendants, on a particular occasion, caused "to be made and used * * * a false invoice for the sale and delivery" of products "to the United States of America, War Shipping Administration." Count II, for example, after reciting that Agwilines, Inc. entered into a general agency contract with the United States through the War Shipping Administration, alleges that defendants presented an invoice "to the United States of America, War Shipping Administration, Agwilines, Interocean S. S. Co., General Agents," for products delivered to the S. S. Cape Charles, a vessel maintained and supplied by Agwilines "for the account of the United States."

Appellants, relying on Lowe v. United States, 5 Cir., 141 F.2d 1005, urge that the allegations of these counts do not show that the false claims were made "in any matter within the jurisdiction of any department or agency of the United States" within the meaning of 18 U.S.C.A. § 80. The defendant in the Lowe case presented a false claim to the payroll department of his employer, a private company. The company's contract with the government provided that the company should be reimbursed from the United States Treasury for such payments, but did not place the payroll department under the supervision of any federal agency. "Insofar as the employee was concerned, every aspect of his employment was exactly the same as it would have been had there been no contract with any governmental agency of any kind."

The contracts in the present case go much further than to provide merely that the private shipping companies should be reimbursed by the government for the products they purchased from defendants. Here, defendants' products were purchased by the private companies as contract agents for the United States, War Shipping Administration. Such purchases were made subject to the orders, regulations and supervision of the United States, were frequently paid for from moneys advanced by the United States, and were in effect purchases by the United States: a fact which would be recognized by defendants in addressing their invoices "to the United States of...