Harney v. United States, 5956-5958.

• Decision Date: 18 July 1962
• Docket Number: No. 5956-5958.,5956-5958.
• Citation: 306 F.2d 523
• Parties: Francis L. HARNEY, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee. Charles H. LAWTON, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee. James S. O'CONNELL, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

306 F.2d 523 (1962)

Francis L. HARNEY, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.

Charles H. LAWTON, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.

James S. O'CONNELL, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 5956-5958.

United States Court of Appeals First Circuit.

July 18, 1962.

COPYRIGHT MATERIAL OMITTED

Stanley H. Rudman, Boston, Mass., for appellant in No. 5956.

John M. Russell, Boston, Mass., with whom Lawrence R. Cohen, Boston, Mass., was on brief, for appellant in No. 5957.

C. Keefe Hurley, Boston, Mass., with whom Earle C. Cooley, Boston, Mass., was on the brief, for appellant in No. 5958.

Paul A. M. Hunt, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., and Joseph F. Gargan and John J. Curtin, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

The appellants were indicted by a grand jury in the court below for conspiracy to defraud the United States in violation of Title 18 U.S.C. § 371 quoted in the margin.¹ The indictment charged that the appellants with five others, Walter M. Webb, Felix J. Myette, Erroll G. Hopkins, Ernest T. Collins and Joseph L. Schwartz, who were named as conspirators but not as defendants, conspired to defraud the United States, particularly the Bureau of Public Roads of the Department of Commerce. The allegations are that the defendants-appellants, knowing that under the Federal Aid Road Act, 23 U.S.C. § 101 et seq., the Commonwealth of Massachusetts would apply for and receive from the United States through the Bureau of Public Roads payments in partial reimbursement for damages paid for lands taken for federal highway purposes "* * * did combine, conspire, confederate, and agree" among themselves and with the co-conspirators named but not charged in the indictment "(a) to hamper, hinder, obstruct, and impede the lawful functions, operations and purposes of said Bureau of Public Roads of the Department of Commerce in the administration of the Federal Aid Highway program by impeding and preventing by craft, trickery and deceit a fair, honest, and disinterested valuation and negotiation of damages resulting from the taking by the Commonwealth of the real property owned by Damort Land Corporation; (b) to divert or cause to be diverted to the personal use, gain and benefit of one or more of the defendants and co-conspirators a large portion of the money paid by the Commonwealth to Damort Land Corporation in payment for the real estate taken from said corporation, the share of said payment reimbursable by said agency of the United States being ninety per cent, contrary to and in derogation of the purpose and intent of the Commonwealth in making the said payment and contrary to and in derogation of the purposes and intent of the Federal Aid Highway program and (c) to cause the Commonwealth to pay to Damort Land Corporation in payment for the real estate taken from said corporation an amount of money far in excess of the sum which the said owner demanded and was willing to receive in full payment of its claim, all in violation of Title 18, United States Code, section 371."

On arraignment the defendants pleaded not guilty and soon thereafter the defendants severally filed motions to dismiss, motions to strike portions of the indictment and motions for a bill of particulars. The motions were denied after hearing, further motions to dismiss or in the alternative to continue the trial grounded upon alleged extensive adverse publicity were also denied, and the defendants were set to the bar to be tried by jury. Motions to dismiss and for judgment of acquittal made at the conclusion of government counsel's opening statement to the jury were denied and motions for judgment of acquittal made at the conclusion of the government's evidence were also denied. Electing to introduce no evidence in their own behalf the defendants moved again for judgments of acquittal, and moved to strike portions of the indictment and all evidence admitted de bene. The court allowed the motions to strike as to paragraph 13 of the indictment insofar as it alleged that the land had been purchased by Damort on February 8, 1956, for $20,000, and as to the second overt act alleged, but otherwise denied the motions and, denying some of the defendants' requests for instructions, submitted the case to the jury. The jury returned verdicts of guilty as to each defendant and thereafter the court, denying motions in arrest of judgment, motions for judgments of acquittal notwithstanding the verdicts or in the alternative for a new trial, passed the judgments of sentence from which these appeals have been taken.

The appellants charge the court below with numerous errors. Their general attack, however, boils down to six fundamental issues. These are whether the indictment alleges facts constituting an offense against the United States, whether the evidence introduced by the government supports the charges laid in the indictment, whether prejudicial pre-trial publicity deprived the appellants of a fair trial, whether the court erred in refusing to direct production by the government under the Jencks Act, Title 18 U.S.C. § 3500, of a report of a subcommittee of the Public Works Committee of the United States House of Representatives known as the "Blatnik Committee," whether the court erred in the admission of certain testimony, particularly that of one Beasley, an expert appraiser called by the government, and whether it was error for the court below to have denied certain requests for instruction.

Our first concern is whether paragraph 16 of the indictment, quoted from at length above, charges an offense against the United States. That paragraph in substance charges the appellants with unlawfully conspiring among themselves and with five others (a) to impede the lawful functions of the federal Bureau of Public Roads by fraudulently preventing a fair and disinterested valuation and negotiation of the damages resulting from the taking of land of the Damort Land Corporation by the Commonwealth of Massachusetts for a link in a Federal Aid Highway, (b) to divert to private use by the conspirators a portion of the money paid by the Commonwealth to Damort for its land, and (c) to cause the Commonwealth to pay an amount for the land far in excess of what the owner was willing to accept in full payment of its claim.

It is now beyond the shadow of doubt that aiding the states in the construction of interstate highways is a lawful function of the United States government. The question of federal power in this regard was said to be settled beyond question years ago in State of California v. Central Pacific Railroad Co., 127 U.S. 1, 39, 8 S.Ct. 1073, 32 L.Ed. 150 (1888). And in the leading case of Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924), Mr. Chief Justice Taft wrote for a unanimous Court:

"To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention."

Under this two-pronged interpretation of the statute paragraph 16 of the indictment to which we have referred certainly alleges an offense under the conspiracy statute, for, as will presently appear in detail in our discussion of the evidence, cheating or overreaching the Commonwealth with respect to the amount it paid for land taken by it for federal highway purposes would in the end expend itself upon the federal government to the extent of 90% under the federal aid road act thereby obstructing one of its lawful functions and if successful subjecting it to pecuniary loss by causing it to pay more than it needed to for the land. The legal sufficiency of the indictment is so clear as not to require further discussion. See, however, Green v. United States, 28 F.2d 965 (C.A.8, 1928); Langer v. United States, 76 F.2d 817 (C.A.8, 1935), and United States v. Weinberg, 226 F.2d 161 (C.A. 3, 1955), cert. denied, 350 U.S. 933, 76 S.Ct. 305 100 L.Ed. 815 (1956), for comparable situations in which indictments under the present conspiracy statute, or its substantially similar predecessor, were sustained. And see also Curley v. United States, 130 F. 1 (C.A.1, 1904), cert. denied, 195 U.S. 628, 25 S.Ct. 787, 49 L.Ed. 351 (1904).

We come now to the question whether the evidence supports the charges laid in the indictment and the jury's verdicts of guilty as to each defendant.

In the light most favorable to the government the evidence can be stated as follows:

Prior to the time with which we are concerned, co-conspirator Walter M. Webb was the president, treasurer and sole stockholder of Damort Land Corporation, which owned an irregularly shaped tract of land consisting of 32,500 square feet with a large frame warehouse, a two story frame building, a spur track and a chain link fence on it in Attleborough, Massachusetts. The land lay unused and Webb had listed it with C. H. Lawton Co., a real estate firm in Pawtucket, Rhode Island, for sale. No buyer had been found, but the frame building had once been leased for a time to a concern in the dairy business.

Early in 1959 co-conspirator Myette, an employee of the Lawton real estate firm, attended a public hearing in Attleborough at which he learned that the Damort, or Webb, land, or a substantial part of it, would be taken by the Commonwealth for the construction of a link of Interstate Route 95, a highway under construction...