Glacy v. United States, 6652

• Decision Date: 25 May 1966
• Docket Number: 6653,No. 6652,6666.,6662,6652
• Citation: 361 F.2d 31
• Parties: George F. GLACY, Defendant, Appellant, v. UNITED STATES of America, Appellee. Daniel A. BENSON, Defendant, Appellant, v. UNITED STATES of America, Appellee. Henry MERSEY et al., Defendants, Appellants, v. UNITED STATES of America, Appellee. Patrick B. McGINNIS, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

361 F.2d 31 (1966)

George F. GLACY, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Daniel A. BENSON, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Henry MERSEY et al., Defendants, Appellants, v. UNITED STATES of America, Appellee.

Patrick B. McGINNIS, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6652, 6653, 6662, 6666.

United States Court of Appeals First Circuit.

Heard May 3, 1966.

Decided May 25, 1966.

Edward O. Proctor, Boston, Mass., for George F. Glacy, appellant.

Claude B. Cross, Boston, Mass., with whom John M. Reed and Withington, Cross, Park & McCann, Boston, Mass., were on brief, for Daniel A. Benson, appellant.

Edward F. Myers, Boston, Mass., with whom Cornelius J. Sullivan and Holtz, Sullivan & Zonderman, Boston, Mass., were on brief, for Henry Mersey and others, appellants.

William T. Griffin, New York City, with whom Lawrence R. Cohen and Newton H. Levee, Boston, Mass., were on brief, for Patrick B. McGinnis, appellant.

John H. Dougherty, Atty., Dept. of Justice, with whom Donald F. Turner, Asst. Atty. Gen., W. Arthur Garrity, Jr., U. S. Atty., and Howard E. Shapiro and Richard A. Wegman, Attys., Dept. of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

The defendants, McGinnis, Glacy, and Benson, president, vice-president in charge of finance and accounting, and vice-president in charge of operations, respectively, of the Boston & Maine Railroad, were convicted of misapplying¹ assets of the railroad. Defendants Mersey and International Railway Equipment Corporation, hereinafter collectively, Mersey,² were convicted of aiding and abetting. We will deal with the evidence later at more length. Briefly, the government showed that defendant officers presented to the railroad's board of directors a proposal to sell ten stainless steel passenger cars for $250,000, an unreasonably low price, and obtained approval by false statements of what similar cars were selling for; that they caused the cars to be sold for that price to Mersey, the railroad receiving payment only after Mersey had sold to another road which was already committed to buy for $425,000; that Mersey thereafter paid the defendant officers, individually and respectively, $35,000, $25,000 and $11,500, or a total of $71,500, much of which was actual proceeds of the sale.³ All defendants moved unsuccessfully for a dismissal of Count 2 of the indictment, the one on which they were convicted,⁴ and for directed verdicts of acquittal for joint and, in most instances, individual reasons. The appeals raise certain further issues.

A basic matter, which defendants presented in various manners,⁵ is a supposed distinction between misapplying the cars and misapplying the proceeds. We are unimpressed, as was the district court, whose analysis of the issue and exposition to the jury was a model of simplicity and clarity.

The offense charged was the improper sale at a known inadequate price,⁶ to a fraudulent middleman,⁷ with defendants' intended acquisition and retention of the proceeds, all part of the one grand design. The statute is not restricted to technical embezzlement, but embraces the broader concept of misapplication. Cf. Batchelor v. United States, 1895, 156 U.S. 426, 15 S.Ct. 446, 39 L.Ed. 478; United States v. Mulloney, D.Mass., 1934, 8 F.Supp. 674, aff'd, 79 F.2d 566, cert. den. 296 U.S. 658, 56 S.Ct. 383, 80 L.Ed. 468; Kramer v. United States, 4 Cir., 1951, 190 F.2d 712, 717-718. The defendant officers committed one underlying offense, violative of the statute, whether their action is sought to be broken down as depriving the railroad of the cars for less than they were worth, to their individual advantage, or as pocketing proceeds which, in law, belonged to the railroad.⁸

The indictment fully sets out the statutory offense and the basic facts charged, so that neither the grand jury nor the defendants were misled. Count 2 of the indictment charges one offense, and the evidence abundantly supports it, unless there was some error as to its admission.

The defendants duly objected to the court's instruction to the jury, near the end of the government's case, that it was warranted in considering all the evidence against all the defendants. This raises the question whether sufficient concert among them was independently shown. Lee Dip v. United States, 9 Cir., 1937, 92 F.2d 802, cert. den. 303 U.S. 638, 58 S.Ct. 526, 82 L.Ed. 1099; United States v. Olweiss, 2 Cir., 1943, 138 F.2d 798, cert. den. 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047.

Evidence introduced by the government and independently admissible, disclosed the following. In 1957, prior to the sale of the ten passenger cars, the railroad had sold two stainless steel dining cars to Bugbee, a Texas dealer in used railway equipment. Throughout this prior transaction the railroad acted through its employee, Bolton, who was the one regularly in charge of such matters. Bugbee resold the cars to the Wabash Railroad. All of these facts were known to all of the officer defendants. On April 30, 1958⁹ Bugbee saw Bolton in Boston and indicated an interest in the passenger cars. Bolton replied that they were in use and not for sale. However, on request, he took Bugbee to Glacy. Bugbee inquired if he could have an option to purchase the cars for $500,000. Glacy refused. On April 29 Glacy had received from Benson, the defendant officer in charge of such matters, a current list of equipment available for sale. These cars were not on it. We now recite, under each defendant's name, evidence admissible at least against the stated defendant.

Mersey

Mersey's files contained a copy of Benson's "for-sale" list, dated, in Mersey's handwriting, April 30. On it was written in Mersey's handwriting, "add ten stainless cars," with a notation that Mersey was requesting prints. On May 10, after calling several times previously, Mersey reached Bugbee on the telephone, introduced himself, said he "owned" the ten cars, and offered to split with Bugbee whatever the latter could realize above $500,000. On June 25 Mersey telephoned Bugbee and reported that McGinnis had complained to Mersey that Wabash had tried to deal directly with McGinnis. Mersey stated that he had the situation in hand, and that he had told McGinnis so. Bugbee reported, in the same conversation, that Wabash would not pay more than $500,000. On July 17 Bugbee informed Mersey that Wabash's top price was $425,000.

The sale was voted on July 23, and consummated August 14. Between August 13 and December 16, Mersey made payments to the defendant officers totalling $71,500.

Glacy

Glacy, in early June, informed Bolton that the sale of the ten cars would not be handled by Bolton, but by Mersey. Bolton objected that it was his job, and raised Bugbee's prior interest. Glacy told Bolton that McGinnis wanted it handled this way. On June 26, the day after Bugbee had told Mersey that Wabash's top price was $500,000, Glacy stated in an office memorandum seeking Benson's pricing of the cars, that similar cars had been bought from the New York Central by Seaboard Airline for $20,000 to $22,000 after it had been "practically ready to buy these coaches from us." In fact Seaboard had not been practically ready, had bought nothing from New York Central, and had bought cars, the nature of which did not appear, from the C & O for $84,000. On July 18, the day after Bugbee had told Mersey that Wabash's top figure was $425,000, Glacy informed Benson by office memorandum that he had an offer of $250,000, and requested Benson's approval. When the sale was consummated Glacy, upon releasing the cars, accepted a personal check post-dated by eight days. It was customary to require a certified check. The personal check exposed the railroad to serious risk. Mersey was already indebted to the railroad in the amount of $75,000 for a longer time than it was customary to permit, and had a bank balance of only $30,000.

Glacy received and collected payments on two checks, $12,500 each, drawn by Mersey on August 22 and 29.

Benson

Benson took Mersey to Bangor on April 30, the railroad paying the air fare. Since no railroad reason for Mersey's trip has been suggested, this indicates, at the least, some intimacy between Benson and Mersey. Benson's retained office copy of his "for-sale" list had a note attached stating that prints of the ten cars had been given Mersey on May 1. Benson, whose duties related to the sale and purchase of equipment, and who could be expected to be knowledgable, in giving Glacy a price of $30,000 on June 30, accepted Glacy's gross misstatement of the New York Central price. When Glacy, by subsequent memorandum, asked approval of $25,000 a car, Benson replied affirmatively, stating the cars were going to require heavy overhaul, at a cost of $25,000 apiece.

Benson received and collected payment on three checks drawn by Mersey on August 13, October 9, and December 16, for $5,000, $1,500, and $5,000, respectively.

McGinnis

It was McGinnis' custom, as president, to review the agenda for the directors meeting beforehand. The memorandum presented to the July 23 meeting requesting a vote on the sale of the ten cars did not name the buyer. Nor did it name the railroad officials who were endorsing the sale, but merely stated that it was recommended by "management." These lacunae were both contrary to standard practice. The sale was...