O'MALLEY v. United States, 4953

• Decision Date: 23 November 1955
• Docket Number: 4954.,No. 4953,4953
• Citation: 227 F.2d 332
• Parties: Louis J. O'MALLEY, Defendant, Appellant, v. UNITED STATES of America, Appellee. Joseph MOFFIE et al., Defendants, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

227 F.2d 332 (1955)

Louis J. O'MALLEY, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Joseph MOFFIE et al., Defendants, Appellants, v. UNITED STATES of America, Appellee.

Nos. 4953, 4954.

United States Court of Appeals First Circuit.

November 23, 1955.

Wm. Shaw McCallum and Vincent R. Brogna, Boston, Mass., for Louis J. O'Malley, appellant.

Edward E. Cohen, Boston, Mass., for Joseph Moffie et al., appellants.

Daniel Needham, Jr., Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., Boston, Mass., was on brief, for appellee.

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

MAGRUDER, Chief Judge.

The three appellants herein have taken appeals from judgments of conviction entered pursuant to jury verdicts after a trial on an indictment in four counts. The first count, based upon 18 U.S.C. § 371, charged the defendants with having engaged in an unlawful conspiracy during the period March 10, 1950, to March 1, 1952, to commit offenses against the United States denounced in 18 U.S.C. § 641, that is to say, "to knowingly and wilfully embezzle, steal, purloin and knowingly convert to their own use and to the use of others, and without authority, to sell, convey and dispose of things of value of the Department of the Navy of the United States," to wit: various items of personal property and fixtures located at the Naval Industrial Reserve Shipyard at Hingham, Massachusetts, of a total value in excess of $100.00. A number of overt acts in furtherance of the conspiracy were set forth in Count 1. In the second count, defendant O'Malley alone was charged with the commission of a substantive offense under 18 U.S.C. § 641 in that he "did, knowingly and wilfully and without authority, sell, convey and dispose of a thing of value of the Department of the Navy of the United States, to wit: One 2-Ton Manual Chain Hoist, the cost price of which to the Department of the Navy of the United States was in excess of One Hundred Dollars ($100.00)." Similarly, Count 3 charged that defendant Joseph Moffie alone committed an offense under 18 U. S.C. § 641 in knowingly and wilfully and without authority selling and disposing of a Metal Steam Kettle, the cost price of which to the Navy Department was in excess of $100.00. Count 4 charged the defendant Millard Moffie alone with an offense under 18 U.S.C. § 641 in that he did steal, purloin and knowingly convert to his own use and to the use of others certain lengths of electric cable, the total cost price of which to the Navy Department was in excess of $100.00.

Since the jury reported verdicts of guilty on each of the four counts, each defendant now stands convicted on the conspiracy count, and on one additional count charging a substantive offense under 18 U.S.C. § 641. Concurrent sentences of imprisonment for a year and a day were imposed on the defendant O'Malley on Counts 1 and 2, respectively. Concurrent sentences of imprisonment for four months were imposed on defendant Joseph Moffie on Counts 1 and 3, respectively, and concurrent sentences of imprisonment for three months were imposed on defendant Millard Moffie on Counts 1 and 4, respectively. In view of the concurrent sentences, these appeals must necessarily fail if the conviction of each of the defendants may be sustained as to either of the counts on which a verdict of guilty was returned. See Claassen v. United States, 1891, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966; Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692; Jarvis v. United States, 1 Cir., 1937, 90 F.2d 243, 246-247; Giugni v. United States, 1 Cir., 1942, 127 F.2d 786, 792.

Early in 1950 Hingham Management Corporation took possession of the Naval Industrial Reserve Shipyard at Hingham, Mass., with the personal property therein, under a lease from the government, at a nominal rental, for a term of five years, with an option in the lessee of extension, upon notice, for two additional terms of five years each. The lease recited that the Secretary of the Navy had determined that the leased "Facilities" were "not surplus to the needs of the Department," but were "not, for the time being, required for public use." The lessee obligated itself to expend a maximum of $100,000 a year for protection, maintenance and repair of the facilities, as the Department might from time to time reasonably require and direct. The lessee was permitted under the lease to use the facilities for warehousing and light industrial purposes only, plus such additional purposes as might first be authorized by the Department. However, the lessee in its use of the facilities was required, at its own expense, to take all reasonable precautions "to protect the Government-owned real and personal property from damage by reason of the Lessee's operations." The government as lessor was given a right of access to the facilities at all times in order to protect its interest in the shipyard and for any other purposes not inconsistent with the use of the facilities by the lessee as therein provided. Also, the government reserved the right to terminate the lease at any time prior to the expiration of the term thereof, during any national emergency declared by the President or Congress, or upon 90 days' written notice whenever the Secretary of the Navy should determine that the interests of national defense so required. It is apparent from the face of the lease that it served as a means whereby the Navy could assure itself of the maintenance of the shipyard ready for immediate use, at no cost to the government.

Defendant O'Malley was the president and principal officer of the lessee corporation. Defendant Joseph Moffie, with the title of traffic manager, acted as a general assistant to O'Malley. Joseph's son, the defendant Millard Moffie, was employed as a straw boss supervising the work of other corporate employees in the shipyard. There is no doubt that during the period from 1950 to 1952 the appellants stripped the shipyard of a great variety of items of personal property and of removable fixtures and disposed of the same, mostly to dealers in junk and scrap metals. These transactions in the aggregate brought in a very substantial sum of money.

At the trial the defendants claimed that they had legal authority to sell and dispose of the property, and that, if such legal authority was in fact lacking, they had nevertheless proceeded on an honest belief that the sales were lawful, and therefore that they were not...