Elmore v. United States

• Decision Date: 28 May 1959
• Docket Number: No. 7657.,7657.
• Citation: 267 F.2d 595
• Parties: Francis M. ELMORE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

267 F.2d 595 (1959)

Francis M. ELMORE, Appellant, v. UNITED STATES of America, Appellee.

No. 7657.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1959.

Decided May 28, 1959.

John L. Nettles, Florence, S. C., and James P. Mozingo, III, Darlington, S. C., for appellant.

Arthur G. Howe, Asst. U. S. Atty., Charleston, S. C. (N. Welch Morrisette, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOPER, Circuit Judge.

This appeal is taken from a judgment of the District Court whereby the defendant, Francis M. Elmore, was sentenced to a term of 18 months imprisonment after a verdict of guilty on certain counts in an indictment of thirty counts, wherein he was charged with violating certain criminal provisions of the Commodity Credit Corporation Act passed for the protection of the operations of the Commodity Credit Corporation in the distribution of farm commodities and farm products in the relief of disaster areas found to exist by the President of the United States.

The indictment outlines the statutory provisions and executive orders under which the relief of major disasters in the United States was made available. A chain of authority was established, running from the President through the Federal Civil Defense Administrator and the Secretary of Agriculture, whereby the existence of a major disaster should be determined, and the distribution of feed for livestock to farmers, ranchers and stockmen should be authorized. The Farmers Home Administration was charged with the responsibility for determining the eligibility of applicants for emergency livestock feed, and the Commodity Credit Corporation was authorized to make available any farm commodity or product thereof and to issue regulations establishing the procedure under which applicants could receive surplus feed grains or approved mixed feed owned or controlled by it. See 42 U.S. C.A. §§ 1855-1855g, 18 F.R. 407, 18 F.R. 4609, 7 U.S.C.A. § 1427, 19 F.R. 5199-5201, 5466-5468.

Under these authorities and regulations it was necessary for an applicant for assistance first to make application to his County Committee of the Farmers Home Administration and upon approval of his application, his County Agricultural Stabilization and Conservation Committee issued a Farmers' Purchase Order for Grain for Livestock Feed, which the applicant could present to a dealer in grain who, upon acceptance, was required to complete a table on the order form showing the quantities of surplus feed grains, or approved mixed feeds, delivered to the applicant. The dealer was also required to certify on the Purchase Order form that he had sold and delivered to the named farmer the grain or mixed feed shown on the table. After the acceptance of the Purchase Order and delivery of the grain, in accordance with the certificate, the dealer could present the Purchase Order within one hundred twenty (120) days to the County Agricultural Stabilization and Conservation Committee and receive in exchange a negotiable certificate which the Commodity Credit Corporation would accept at face value if presented within one hundred twenty (120) days after issuance. In conformity with this procedure the President of the United States, on September 16, 1954, determined that a major disaster existed in South Carolina and, on September 22, 1954, the Secretary of Agriculture determined that all the counties in the State were affected by the disaster.

The first count of the indictment charged that thereafter, on November 26, 1954, the defendant for the purpose of influencing the action of the Commodity Credit Corporation and obtaining something of value from the Corporation unlawfully made false statements and representations on a Farmer's Purchase Order for grain and livestock feed, knowing the statements and representations to be false, in that the defendant unlawfully certified on a Purchase Order issued to a certain Mack McKenzie, that Elmore Milling Company had delivered 25 cwt. of surplus feed grain to McKenzie, when in truth the grain had not been so delivered. This count of the indictment was based on 15 U.S.C.A. § 714m (a), which provides that whoever makes any statement knowing it to be false for the purpose of influencing the action of the Commodity Credit Corporation, under the provisions of the Commodity Credit Corporation Act, shall be punished by a fine of not more than $10,000 or by imprisonment of not more than five years or both. Counts 2 to 11 of the indictment charged similar offenses on various dates in 1954 and 1955. The defendant was found guilty on counts 1, 2, 6, 7, 9 and 11 and acquitted on the rest of the counts in this category.

Counts 12 to 28 of the indictment charged that the defendant on various dates between May 25 and June 22, 1954, did willfully steal, remove, dispose of and convert to his own use or to the use of the Elmore Milling Company, a co-partnership, various quantities of wheat of the Commodity Credit Corporation then in storage at South Carolina State Warehouse No. 1227-G of the Eastern Farmers Cooperative Association. These counts were based on 15 U.S.C.A. § 714m(c), which makes such actions punishable by a fine of not more than $10,000 or imprisonment for not more than five years or both. The defendant was found guilty on all of the counts in this category.

Count 31 of the indictment charged that the defendant, on July 13, 1954, for the purpose of obtaining 4200 bushels of wheat at a discount price made false statements, knowing them to be false, in a wheat certificate submitted by him on behalf of Elmore Milling Company to the Commodity Credit Corporation in that he certified that the wheat would be used for livestock and poultry feed and that a similar certificate would be obtained from subsequent buyers in the event the wheat was resold. This count was based on 15 U.S.C.A. § 714m(a). The defendant was convicted on this count.

Count 32 of the indictment charged that Francis M. Elmore, the defendant named in the foregoing counts, and Thomas H. Elmore conspired to violate 15 U.S.C.A. § 714m(d) in that the defendants for the purpose of influencing the action of the Commodity Credit Corporation and obtaining for themselves or Elmore Milling Company something of value, did knowingly make false statements to the Corporation, to the effect that wheat purchased by them from the Corporation would be used as feed for livestock or poultry and that if the wheat were sold a similar certificate would be obtained from the purchaser. Both defendants were convicted on this count; but Thomas H. Elmore was released on probation and has not appealed.

Certain facts are not in dispute. Francis M. Elmore, the defendant-appellant, was the manager of a State-operated grain storage warehouse in Florence, South Carolina, owned by the Eastern Carolina Farmers Cooperative Association. He was also the manager of the Elmore Milling Company, a partnership consisting of his wife and sister, which dealt in feed. Thomas Elmore, his brother, the codefendant in the conspiracy count, was engaged in the trucking business as manager for one James Poplin during May, June and July 1954, hauling grain and other merchandise.

The warehouse in the ordinary course of business issued warehouse receipts to the owners of the grain on storage from which it kept a daily record or inventory showing the amount of grain in the warehouse. Owners were required to produce the receipts for cancellation upon withdrawal. During the years 1953 and 1954 the Commodity Credit Corporation stored grain in the warehouse under agreements with the Cooperative Association, executed by the defendant as manager, which provided that the warehouse would receive for storage grain of the C.C.C. to be commingled with other grain and that the Association would at all times maintain in the warehouse a stock of grain equal in quantity and quality to the grain which it was obliged to deliver under its outstanding warehouse receipts. The agreements further provided that the warehouse would deliver grain belonging to the C.C.C. as it directed, upon the surrender of the receipts, and that the warehouse would pay the difference between the value of the commingled grain loaded out and the grain called for in the loading orders.

In 1955 the C.C.C. forwarded orders to the warehouse for delivery of wheat and after partial delivery, lacking 12,220 bushels, had been made, the warehouse was found to be empty. This led to an investigation and disclosed information upon which counts 12 to 28 of the indictment, now to be considered, were based. The loss to the Government was made up by assessing the farmers who owned the Cooperative Association.

The investigation covered the period from June 1951, when operations of the storage warehouse began, to May 1955. Calculations based on the records of receipts and disbursements showed that on May 25, 1954, the amount of grain on storage was 4,051,629 pounds. An examination of the outstanding warehouse receipts as of this date showed that the C.C.C. was the owner or pledgee of 4,756,441 pounds of grain, or 704,812 more pounds than were in the warehouse at the time. During the period from May 25, 1954 to June 22, 1954, the transactions occurred which formed the basis of counts 12 to 28 of the indictment. The defendant caused seventeen shipments of grain in varying amounts, totaling 933,596 pounds or 15,559.93 bushels, to be withdrawn from the warehouse and sold in the name of Elmore Milling Company to various flour mills in South Carolina. The purchasers made payment therefor to the milling company and their checks were deposited to its credit in its banking account. These withdrawals were made without the production of warehouse receipts for cancellation contrary to the agreements between the C.C.C. and the Cooperative Association and contrary to the official regulations governing the State...