Marteney v. United States

• Decision Date: 28 February 1955
• Docket Number: No. 4930.,4930.
• Citation: 218 F.2d 258
• Parties: Wayne S. MARTENEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

218 F.2d 258 (1954)

Wayne S. MARTENEY, Appellant, v. UNITED STATES of America, Appellee.

No. 4930.

United States Court of Appeals, Tenth Circuit.

December 30, 1954.

Writ of Certiorari Denied February 28, 1955.

COPYRIGHT MATERIAL OMITTED

Emmet A. Blaes, Wichita, Kan. (A. Lewis Oswald, Hutchinson, Kan., on the brief), for appellant.

Richard J. Blanchard, Attorney, Department of Justice, Washington, D. C., for appellee.

Before HUXMAN, MURRAH, and PICKETT, Circuit Judges.

Writ of Certiorari Denied February 28, 1955. See 75 S.Ct. 442.

PICKETT, Circuit Judge.

The appellant, Wayne S. Marteney, was convicted and sentenced on all twenty-nine counts of an indictment which charged him with the theft and conversion of grain belonging to the Commodity Credit Corp., herein referred to as "CCC", in violation of 15 U.S.C.A. § 714m(c).¹ Appellant was sentenced to imprisonment for a period of five years on each count, all sentences to run concurrently. The first twenty-eight counts charged that the appellant "did unlawfully steal, conceal, remove, dispose of and convert to his own use and to that of the Garden Grain and Seed Company, Inc., Garden City, Kansas", various quantities of grain sorghum which was then and there property owned by the CCC, an agency and instrumentality of the United States. Each of the first twenty-eight counts was identical in form with the exception of the dates of the alleged offenses and the number of pounds of grain alleged to have been stolen and converted. The dates of the conversion alleged in each of the different twenty-eight counts were between September 11, 1951 and December 21, 1951. Count 29 alleged:

"During the period beginning from on or about April 1, 1950, to and including September 10, 1951, in the District of Kansas, the defendant, Wayne S. Marteney, did wilfully steal, conceal, remove, dispose of and convert to his own use and to that of the Garden Grain and Seed Company, Inc., Garden City, Kansas, grain sorghum in excess of 5,000,000 pounds, approximately 89,000 bushels, which said grain was then and there property owned by Commodity Credit Corporation, an agency and instrumentality of the United States."

The appellant by appropriate motions challenged the sufficiency of the first twenty-eight counts upon the ground that they failed to allege that the acts complained of were done wilfully. The motions were denied and that ruling is assigned as error. When "wilfullness" is made an essential element of an offense, as it is in this case, it is a general rule that a failure to allege wilfullness is fatal to the indictment. Fed.Rules Crim. Proc. rule 7(c), 18 U.S.C.A.; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516; United States v. Cook, 17 Wall. 168, 84 U.S. 168, 21 L.Ed. 538; Pullen v. United States, 5 Cir., 164 F.2d 756; Cf. Carter v. United States, 10 Cir., 173 F.2d 684, certiorari denied 337 U.S. 946, 69 S.Ct. 1503, 93 L.Ed. 1749; Lowenburg v. United States, 10 Cir., 156 F.2d 22; White v. United States, 10 Cir., 67 F.2d 71. We shall not, however, labor the point as it is conceded that count twenty-nine is sufficient and that the sentence imposed does not exceed that which might lawfully have been imposed under that count. It is well established that where a defendant has been convicted on several counts, a judgment and sentence will not be reversed if the sentence does not exceed that which might lawfully be imposed upon any one count. Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774; Brooks v. United States, 267 U.S. 432, 441, 45 S.Ct. 345, 69 L.Ed. 699; Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17, 63 L.Ed. 1173; Evans v. United States, 153 U.S. 608, 14 S.Ct. 939, 38 L.Ed. 839; Ward v. United States, 10 Cir., 183 F.2d 270, certiorari denied 340 U.S. 864, 71 S.Ct. 87, 95 L.Ed. 631; Long v. United States, 10 Cir., 139 F.2d 652.

The evidence of the prosecution tended to establish that grain sorghum which belonged to the CCC and which was in storage facilities with grain of others was converted by the appellant. It is urged that 15 U.S.C.A. § 714m(c) cannot be violated by the conversion of fungible goods from a commingled mass. The appellant was the vice-president and general manager of Garden Grain and Seed Company, Inc., a Kansas corporation, licensed by the State of Kansas to operate grain warehouse storage facilities at Pierceville, Garden City and Ingalls, Kansas. The CCC entered into grain storage agreements with the Company relating to grain of the CCC which was stored, and to be stored, in facilities at Garden City and Pierceville. The agreement provided that all grain sorghum covered by the contracts could be stored in a commingled mass. From April, 1950, through September, 1951, the total grain stored in these facilities belonging to CCC varied from 22.72 percent to 98.23 percent of the total amount stored. The storage facilities consisted of grain elevators and storage space at a United States Air Base near Garden City which had been leased from the United States. The CCC acquired its grain from farmers, under the price support provisions of the Commodity Credit Corporation Act. 15 U.S.C.A. § 714c. The grain was generally represented by warehouse receipts issued by the Company. The evidence is without conflict that the Company was short in its grain accounts from April, 1950 to September 10, 1951.² The evidence is also without dispute that the Company, at the direction of the appellant, sold warehouse receipts and delivered large quantities of grain to third parties during the period from April, 1950 through September 10, 1951, when it did not have in storage sufficient grain to meet the obligations of outstanding warehouse receipts. When CCC demanded delivery of grain represented by some of its warehouse receipts, the Company was unable to comply. The appellant admitted to an auditor that he knew he was short in the grain account and stated that he could obtain coverage elsewhere.

The prosecution made proof of the amounts of its grain which had been converted and sold, by showing deliveries by the Company when it was short of grain, and computing the interests of CCC according to the percentage of all grain in storage which it owned at the time of each delivery.

As was pointed out by the Supreme Court in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, conversion of government property ordinarily cannot be reached as an embezzlement, or a theft, or purloining, even though the loss to the United States has the same effect as though the property had been embezzled, stolen or purloined. The purpose of the conversion provision in the general statute was to provide a penalty not already covered by statute if property of the United States was knowingly converted. 18 U.S.C.A. § 641. The statute under which the appellant was indicted is part of the Commodity Credit Corporation Act, and its provisions and purposes are similar to the statute considered in the Morissette case but it applies only to property acquired under the Act. The principal difference in the two statutes is that in the general statute the offense is to "knowingly convert" property of the United States, while in the Commodity Credit Corporation Act it is to "wilfully convert" property of the CCC. The latter section denounces the wilful conversion of property acquired under the Act and the fact that this property was in a commingled mass and could not be specifically identified is immaterial, since the evidence established that the CCC owned a portion of the commingled mass of fungible goods which were wilfully converted. The appellant knew exactly how the grain was handled and could not have been misled or prejudiced by the method of proof. Shannon v. United States, 5 Cir., 209 F.2d 835, certiorari denied 347 U.S. 952, 74 S.Ct. 676; Henderson v. United States, 5 Cir., 203 F.2d 81; Dawson v. United States, 5 Cir., 203 F.2d 201.

The Warehouse Receipts Act of Kansas, Kan.G.S.1949, Ch. 82, Sec. 207, makes it a crime in Kansas for a warehouseman to issue warehouse certificates or receipts when the commodities described therein are not in fact in the building or buildings which it is certified that they are in; or to sell, transfer or remove from the building any of the certified property without the consent of the holder of the certificate or receipt. This section includes the acts prohibited by 15 U.S.C.A. § 714m(c), but acts denounced as crimes by both national and state sovereignties are an offense against both, and may be prosecuted by each. Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640; United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Serio v. United States, 5 Cir., 203 F.2d 576, certiorari denied 346 U.S. 887, 74 S.Ct. 144.

The appellant contends that the trial court's instructions to the jury contain several substantial errors. The first error complained of refers to the definition of the word "wilful". Wilful conversion as used in Section 714m(c), is a crime in the nature of a theft and falls within that class of cases requiring specific wrongful intent and a bad motive. Nabob Oil Co. v. United States, 10 Cir., 190 F.2d 478, certiorari denied 342 U.S. 876, 72 S.Ct. 167, 96 L.Ed. 658. Considering the entire instruction on the subject, we think it was sufficient to properly define the term. The court explained to the jury that the simple conversion of property, though wrong, would not ordinarily be a crime. The jury was instructed that for a conversion to be a crime, it must be a wilful conversion and that it is dependent upon the intention with which it was committed. The court stated that the term "wilfully" as used in the statute meant "intentionally" or "with the...