Gouled v. United States

• Decision Date: 20 April 1921
• Docket Number: 142.
• Citation: 273 F. 506
• Parties: GOULED v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

273 F. 506

GOULED v. UNITED STATES.

No. 142.

United States Court of Appeals, Second Circuit.

April 20, 1921

Martin W. Littleton and John D. Lindsay, both of New York City, for plaintiff in error.

Francis G. Caffey, U.S. Atty., of New York City, and Joseph A Berdeau, Sp. Asst. U.S. Atty., of Brooklyn, N.Y.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

HOUGH Circuit Judge.

This writ having come on for argument, we certified to the Supreme Court six questions suggested by the record. They have been specifically answered by the opinion of that court filed February 28, 1921 (255 U.S. . . ., 41 Sup.Ct. 261, 65 L.Ed . .), and the points suggested are also covered in the opinion in Amos v. United States (255 U.S. . . ., 41 Sup.Ct. 266, 65 L.Ed. . . .), filed the same day. The facts are so fully set forth in the higher court's opinion that they need not be here repeated, and obviously the answers by the Supreme Court require reversal and a new trial.

Other matters, however, have been urged at bar unrelated to the certified questions. The only one now requiring comment is an attack upon the sufficiency of the indictment.

The brief raises the point on exception to the court's refusal to grant motion in arrest of judgment. Generally speaking such practice is erroneous, for, even when a bill of exceptions is settled in respect of such refusal, the motion is of no more effect than motion for a new trial, and neither can be reviewed here. Street Railroad v. Hart, 114 U.S. 654, 661, 5 Sup.Ct. 1127, 29 L.Ed. 226; Andrews v United States, 224 F. 418, 139 C.C.A. 646.

But where the indictment defect assigned is one not to be cured by verdict, no bill of exceptions is required; we can and must consider the point on the judgment roll.

The facts charged in the indictment are that one Vaughan was in 1918 a captain in the Quartermaster's Department of the United States army, and that as such official it was his duty to receive and consider bids for the manufacture of clothing and equipment for the army and to award contracts for the manufacture thereof. Thereupon Gouled and Vaughan (and others unknown to the grand jurors) formed the plan of letting Gouled represent to certain named persons and corporations, collectively called 'manufacturers,' that he (Gouled) could through influence procure government contracts for such of the manufacturers as chose to pay him a fee or commission based upon the amount or value of the contract so obtained and awarded. The moneys thus to be realized by Gouled were to be delivered to Vaughan and divided--

'among divers officers of the United States * * * with the intent to influence the decision and action of (Vaughan) and each of said divers officers on questions * * * before (Vaughan) or them in his or their official capacity, viz. the consideration and acceptance of bids and the letting and award of contracts for the manufacturers of garments for the United States army.'

Gouled was tried on two counts. In the first the allegations above summarized are substantially said to be a 'scheme and artifice to defraud' the United States, and it is charged that for the purpose of executing said scheme, etc., Gouled placed a certain letter in the post office establishment wherefore the count rests on Criminal Code, Sec. 215 (Comp. St. Sec. 10385). In the second count the fact allegations above summarized are alleged as a conspiracy on the part of Vaughan and Gouled and others 'to defraud the United States.' Overt acts are duly...