Blunden v. United States, 10625.

• Decision Date: 13 September 1948
• Docket Number: No. 10625.,10625.
• Citation: Blunden v. United States, 169 F.2d 991 (6th Cir. 1948)
• Parties: BLUNDEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

169 F.2d 991 (1948)

BLUNDEN et al. v.UNITED STATES.

No. 10625.

United States Court of Appeals Sixth Circuit.

September 13, 1948.

George S. Fitzgerald, of Detroit, Mich. (George S. Fitzgerald and Paul B. Mayrand, both of Detroit, Mich., on the brief), for appellants.

Marcus L. Friedman, of Toledo, Ohio (Don C. Miller, of Cleveland, Ohio, and Marcus L. Friedman and Gerald P. Openlander, both of Toledo, Ohio, on the brief), for appellee.

Before HICKS, Chief Judge and McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

Appellants, Frank O. Blunden, Rodney B. Pierce annd William J. Laughlin, appeal from judgments against them in the District Court under an information charging them with bribing an employee of the United States in a matter within his official capacity.Section 91,Title 18 U.S.C.A., now 18 U.S.C.A. § 201.The appellants waived indictment, pleaded not guilty to the information and waived a jury trial.The District Judge, after hearing the evidence made a general finding of guilty, no request having been made for a finding of the facts specially, as provided by Rule 23 (c) of Rules of Criminal Procedure,18 U.S. C.A.

Most of the facts are uncontradicted.Others are possibly somewhat uncertain.In the absence of findings of fact by the District Judge, we state them, where supported by the evidence, as those which would support the judgments.American Tobacco Co. v. United States, 6 Cir., 147 F.2d 93, 115, affirmed328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575;Jabczynski v. United States, 7 Cir., 53 F.2d 1014.Stephen Flisek was a civilian employee of the United States Army stationed during the time in question at the Rossford Ordnance Depot near Toledo, Ohio, where he served as the Civilian Chief of the Stock Control Division of the Depot.At the Rossford Depot there were three accounts covering property that came under Flisek's control.One was mission stock which was received for issuance to the United States Army.The second was surplus property.The third included such major items as wheeled vehicles and gun mounts.Mission property was segregated from surplus property.Flisek, on his own initiative could move mission property from the back-up depots to replenish the stocks at Rossford and could ship such property away from the Rossford Depot to a post or station in the United States or overseas on his own authority and without consulting any one.He had no legal authority to ship out mission property to any one who had no connection with the War Department.Surplus property was in an entirely different category from mission property.Flisek had authority to move surplus property within the confines of the depot but had absolutely no authority to move any surplus property off the depot.Such authority, including the issuance of removal orders, was with the War Assets Administration in Detroit.

In the fall of 1946, Laughlin, acting as a representative of a motor company, came to the Rossford Depot looking for surplus automobiles.He had known Flisek previously in Schenectady, New York.He discussed with Flisek the fact that with the close of the war tremendous surplus property would be moving out of the War Department into the commercial field, stated that he was interested in motors and asked if there would be surplus property at Rossford.Flisek told him there would be as much at Rossford as at any other comparable installation in the country.A week or two later Laughlin returned with Pierce, and the two talked with Flisek, again discussing surplus property and the profits that could be made from its purchase and resale.They stated they had formed a business venture and were interested in getting surplus property out of Rossford in preference to other buyers.Flisek told them that in his position he could earmark certain motors for them and release the motors as surplus for their account, and that he would notify them if and when any surplus property was available.This was not correct.The engines at Rossford were mission property and not surplus property, and in addition, Flisek was not an employee of the War Assets Administration and had no authority to deal with surplus property.Shortly thereafter Blunden accompanied Pierce and Laughlin to Toledo and conferred with Flisek at a hotel after working hours.The purchase of surplus property was again discussed and it was suggested that the business venture would include Flisek for an equal share of the profits from any of the motors that would be obtained through his efforts.Flisek told them that he was a Civil Service employee and as such was prohibited from dealing with any surplus property, and that his name could not be used in the deal.It was arranged for a relative of Laughlin to act in Flisek's place.Between then and November 21, 1946, numerous meetings were held between Flisek and the appellants in Detroit, and Toledo, at which plans were discussed by which the appellants could obtain motors.

The first deal, on November 21, 1946, involved four carloads containing 623 Ford Jeep motors.Following previous arrangements, the motors were ordered by Flisek to be shipped to the Jacob Rose Company in La Porte, Indiana.Flisek represented to the three appellants that these motors had been earmarked for them from War Assets Administration and that he had been able to bring that about by his position at Rossford, and that billing would follow from War Assets Administration within 90 days.He told them that the original price to War Assets Administration was $47.50 per unit.The billing from War Assets Administration did not follow and Flisek finally told appellants that he could get this contract transferred to the depot from War Assets Administration and in turn could buy this material himself at scrap value under a salvage regulation.These representations were untrue.Flisek first billed Rose at $47.50 per unit which Rose refused to pay, advising that he would only honor an invoice from War Assets Administration.Flisek wrote Blunden and shortly afterwards Laughlin came and met Flisek in a hotel in Toledo.Flisek arranged to secure forms used by the Finance Department and made out a false bill of lading from the Government to himself.Following an inspection by Rose of this false billing, the Jacob Rose Company mailed Flisek its check for $28,110.20, which Flisek deposited in his bank.Flisek in turn checked out the same amount to F. O. Blunden and Associates.F. O. Blunden and Associates paid Flisek $5,409.36 by check which was the invoice value of the motors at the scrap billing rate.Flisek did not pay the Government for these four carloads of Jeep engines which were shipped to Jacob Rose.

In talks with the appellants after the November 21st shipment, Flisek told them that he would be able to purchase motors himself through the War Assets Administration.This was not true.The appellants advised him that if he could get any more motors they should be billed directly to F. O. Blunden and Associates in Toledo.In January 1947, Flisek had the transportation division ship and bill three carloads of motors containing 126 Jeep engines and 170 Dodge engines to F. O. Blunden and Associates in Toledo, and called Pierce and told him of the consignment.The shipment was received and later resold by F. O. Blunden and Associates who sent Flisek a check for $13,737.26 payable to him which was to be used by him in paying...