Gormley v. United States

• Decision Date: 01 April 1948
• Docket Number: No. 5716.,5716.
• Parties: GORMLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

167 F.2d 454 (1948)

GORMLEY v. UNITED STATES.

No. 5716.

Circuit Court of Appeals, Fourth Circuit.

April 1, 1948.

Richard L. Merrick, of Washington, D. C. (Andrew W. Clarke, of Alexandria, Va., on the brief), for appellant.

Philip R. Monahan, Atty., Department of Justice, of Washington, D. C. (T. Vincent Quinn, Asst. Atty. Gen., George R. Humrickhouse, U. S. Atty., of Richmond, Va., and Robert S. Erdahl, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal in a criminal case in which the defendant, one George Aloysius Gormley, was convicted of violating 18 U.S.C.A. § 80, which provides:

"* * * whoever shall knowingly and willfully * * * make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, in any matter within the jurisdiction of any department or agency of the United States * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

The indictment contained one count which charged that the defendant and one Louis Vincent Dionne "on or about the 10th day of December, 1946, at Alexandria, Virginia, * * * did unlawfully, wilfully and feloniously use, and cause to be used, a receipt and voucher, to-wit, a War Assets Sales Document No. 4784257, knowing the same to contain a fraudulent and fictitious statement and entry in a certain matter within the jurisdiction of * * * the War Assets Administration at Alexandria, Virginia * * *." The defendant pleaded not guilty and was tried before a jury in the District Court of the United States for the Eastern District of Virginia.

Defendant urges upon us several alleged errors as grounds for a reversal. The first question is whether there was sufficient evidence to take the case to the jury. We think the evidence clearly sufficient and a brief summary of it follows:

Dionne, an admittedly dissolute character, who was jointly indicted with the defendant and entered a plea of guilty when arraigned, was in charge of the traffic unit of the War Assets Administration, Washington Quartermaster Depot, Cameron, Fairfax County, Virginia. His duties included the making of arrangements for the shipment of goods which had been purchased from the War Assets Administration.

When surplus property was sold, a record was made on a form known as a sales document which was made up in a set consisting of an original and six copies, numbered 1 to 7 inclusive. This record went to the cashier to whom payment was made. He stamped the record paid and signed his name thereon, the writing carrying through the carbons on all six copies. Then copies 4 and 5 of the sales document were sent to the traffic unit (Dionne) for shipping instructions and from there to the Quartermaster's Department where instructions were issued to the warehousemen to fill the order and ship the goods in accordance with the information contained on copies 4 and 5 of the sales document.

In the fall of 1946, Dionne was introduced to the defendant by one Frank Coogler, a freight solicitor for a transfer company, which hauled goods from the Cameron Depot. Dionne, Coogler and the defendant concocted a scheme for fraudulently obtaining a large amount of surplus 36-ounce melton cloth from the War Assets Administration by falsely altering certain copies of the sales document. Pursuant to this plan, the defendant, on December 6, 1946, bought at the War Assets Administration's sale 10,000 yards of 36-ounce melton cloth at the price of $2.40 per yard for which he gave his check drawn on the Riggs National Bank of Washington, D. C., in the sum of $24,000.

In accordance with the standard procedure at the Depot, the sales document was made out, and copies 2, 3, 6 and 7 were forwarded with defendant's check to the Richmond Regional Office. Copies 4 and 5 went to the traffic unit where Dionne, according to his own testimony, altered copies 1, 4 and 5 so that the yardage called for on the sales document was increased by 30,000 yards and the purchase price by $72,000. These altered copies 4 and 5, which now showed a total of 40,000 yards instead of 10,000 and the amount paid as $96,000 instead of $24,000, were sent on to the delivery department of the Quartermaster Depot where shipping orders were prepared in accordance with the altered figures.

Dionne turned copy 1 of the sales document over to Coogler which was the authority for the transportation company (of which Coogler was the agent) to pick up the goods when the shipping order had been filled at the warehouse. Consequently, approximately 40,000 yards of 36-ounce wool melton cloth were shipped from the warehouse to George A. Gormley, the defendant, and by him were resold to one Henry Marks, who was in the woolen business in New York. For his part in the transaction, Dionne testified that he was paid $7,000 by Coogler.

The defendant testified in his own behalf that he learned from Coogler of certain surplus cloth which was for sale by the War Assets Administration. Accompanied by Coogler and another man, he inspected the cloth, and about a week later, on December 6, 1946, after arranging for its resale through one Aldus H. Turner, he purchased 10,000 yards of the melton cloth at $2.40 per yard. At the time of this purchase, according to the defendant's testimony, Dionne told him that there was on hand in the warehouse a large quantity of melton cloth which had become mildewed and which could be purchased at approximately sixty cents a yard, or an average of $1.07 per yard, including the 10,000 yards of undamaged cloth already bought.

On the night of this purchase, defendant stated that in response to a telephone call from Coogler, he went to Dionne's hotel and was informed by Dionne that there were only 30,000 yards of the mildewed cloth remaining in the warehouse and that it would cost $19,000 more. Dionne then said he had made arrangements for defendant to purchase the 30,000 yards, and to make payment therefor after its resale.

A prospective purchaser, Henry Marks, was called in New York by Turner. Marks came to Washington, inspected the cloth and agreed to buy the entire yardage at $1.32½ per yard or a total price of $53,000. He paid the defendant $28,000 in cash and $25,000 by check. The defendant testified that he, in turn, paid Dionne $19,000 in cash and quoted Dionne as saying that "it was a feather in his cap to get rid of that mildewed stuff for the Government."

The jury rejected as untrue (quite correctly, we believe,) the defendant's version of the transaction, and our inquiry is limited to whether the verdict finds support in the evidence. There is no question but that the sales document, of which copies 2, 3, 5, 6 and 7 were offered in evidence, had been altered and as a consequence of this alteration defendant procured 40,000 yards of cloth rather than the 10,000 yards he had actually purchased. Dionne testified that he made these alterations at the inducement and on the instructions of defendant and Coogler, and one who aids, abets, counsels or procures the commission of an offense against the...