Marzani v. United States

• Decision Date: 02 February 1948
• Docket Number: No. 9595.,9595.
• Citation: 83 US App. DC 78,168 F.2d 133
• Parties: MARZANI v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 78, 168 F.2d 133 (1948)

MARZANI v. UNITED STATES.

No. 9595.

United States Court of Appeals, District of Columbia.

Argued November 18, 1947.

Decided February 2, 1948.

Rehearing Denied April 22, 1948.

Writ of Certiorari Granted June 21, 1948.

Mr. Arthur Garfield Hays, of New York City, of the Bar of the State of New York, pro hac vice, by special leave of Court, and Mr. Allan R. Rosenberg, of Washington, D. C., with whom Messrs. Charles E. Ford and Warren L. Sharfman, both of Washington, D. C., were on the brief, for appellant.

Mr. John M. Kelley, Jr., Special Asst. to the Atty. Gen., and Mr. Leo A. Roth, Attorney, Department of Justice, with whom Mr. George Morris Fay, United States Attorney, both of Washington, D. C., and Miss Rosalie M. Moynahan, Attorney, Department of Justice, were on the brief, for appellee. Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellee.

Mr. Belford V. Lawson, Jr., of Washington, D. C., filed a brief on behalf of the National Lawyers Guild as amicus curiae, urging reversal.

Mr. Joseph Forer, of Washington, D. C., filed a brief on behalf of the Civil Rights Congress as amicus curiae, urging reversal.

Before GRONER, Chief Justice, and WILBUR K. MILLER and PRETTYMAN, Associate Justices.

Writ of Certiorari Granted June 21, 1948. See 68 S.Ct. 1531.

PRETTYMAN, Associate Justice.

Appellant Marzani was indicted, tried, convicted and sentenced for having made false and fraudulent statements in a matter within the jurisdiction of an agency of the United States Government in violation of Section 80 of Title 18 of the United States Code Annotated. From the judgment of the District Court he appealed.

Appellant's first point is that the first nine counts of the indictment were barred by the statute of limitations. Dates are the important facts in this connection. In 1940 and 1941 Marzani lived and worked in private pursuits in New York City. In February, 1942, he applied for a position in the Government service. On March 7, 1942, he was employed as a war service appointee, subject to a character and fitness examination. On July 29, 1942, in the course of that examination, he was interrogated under oath by a representative of the Federal Bureau of Investigation. On November 23, 1942, he was similarly examined by representatives of the Civil Service Commission. As a result of the latter inquiry, he was rated ineligible. He appealed, and on April 20, 1943, he was given a hearing before the Board of Appeals and Review of the Commission. That Board reversed the initial ruling and rated him eligible. He was employed in the Office of the Coordinator of Information and the Office of Strategic Services as a civilian from March, 1942, until November, 1943, and in the latter service in military status until September, 1945, when he was honorably discharged as a master sergeant, and then with the same organization in a civilian status again until November 15, 1946. During the latter period, his unit of O. S. S. was transferred to the State Department. Marzani was then Deputy Chief of the Presentation Division. On November 15, 1946, after some discussions with his superior, he resigned and entered private employment as a producer of films for labor unions. On December 20, 1946, he was notified that he had been discharged from the State Department in the interest of the United States.

Marzani was indicted January 17, 1947. The indictment was in eleven counts, the first nine of which related to statements made by him in the course of the F.B.I. and Civil Service Commission inquiries in 1942.

In general the statements alleged by the indictment to have been false were answers to questions whether Marzani had ever been a member of the Communist Party, ever attended meetings of that party, contributed services to that party, and similar inquiries. In the indictment and upon the trial, it was charged that his negative answers were false. The falsity was alleged to have been established by activities of the defendant in New York City in 1940 and 1941.

The ordinary period of limitations for these offenses is three years.¹ Unless the running of that period was suspended, in the manner to be discussed, the first nine counts of this indictment were barred. The question is whether the running of the ordinary limitation was suspended in this case.

Two statutes are involved. The first is that under which the indictment was laid, which is Section 80, Title 18, of the United States Code Annotated, in its present form an act of June 18, 1934,² with minor changes by an act of April 4, 1938,³ Section 35 of the Criminal Code. For ease in discussion, we shall refer to the pertinent clause of this statute as the False Claims Act. That clause provides:

"* * *; or whoever shall knowingly and willfully * * * make * * * any false or fraudulent statements or representations, * * * 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 other statute is Section 590a of Title 18 of the United States Code Annotated, which is an act of August 24, 1942,⁴ as amended July 1, 1944,⁵ and October 3, 1944;⁶ Section 19(b) of the Contract Settlement Act of 1944 and Section 28 of the Surplus Property Act of 1944. For ease in discussion we shall refer to this statute as the Suspension Act. In pertinent part it provides: "The running of any existing statute of limitations applicable to any offense against the laws of the United States (1) involving defrauding or attempts to defraud the United States or any agency thereof whether by conspiracy or not, * * * shall be suspended until three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress."

The question before us is whether the Suspension Act applies to offenses under the False Claims Act.

We see no escape fom the conclusion impelled by two decisions of the Supreme Court, United States v. Noveck⁷ (and its companion cases, United States v. McElvain⁸ and United States v. Scharton⁹ and United States v. Gilliland.¹⁰

In United States v. Noveck, the question was whether a statute which read, "That in offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, * * * the period of limitation shall be six years",¹¹ applied to perjury in an income tax return. The indictment alleged that the perjury was for the "purpose of defrauding the United States". The Supreme Court held that the six-year statute did not apply, because defrauding the United States is not an element of the crime of perjury. The language of that statute of limitations is the same as that of the Suspension statute here involved; in fact, that statute was the predecessor to this one.

In United States v. McElvain, supra, the Court held that the six-year statute of limitations involved in United States v. Noveck did not apply to a conspiracy to defraud the United States by making a false income tax return. In United States v. Scharton, supra, the indictment was for an attempt to evade taxes by falsely understating taxable income. The defendant pleaded the statute of limitations. The United States contended that attempts to obstruct or defeat the lawful functions of any department of the Government, if accompanied by dishonest methods, are attempts to defraud the United States. The Court held that the six-year limitation applicable to offenses involving the defrauding of the United States, was not applicable to the offense described in that indictment.¹²

The United States seems to agree with the foregoing view of the Noveck and its allied cases. It says that the Suspension Act "was modeled upon the proviso" in the 1921 Act; that the 1921 and 1926 provisos "are in all essential respects identical with" the present Suspension Act; and that "said cases were decided in accord with the principle first enunciated in United States v. Noveck, to wit, that in order to be affected by the suspension statute `defrauding or an attempt to defraud' the United States must be an ingredient under the statute defining the offense."

In United States v. Gilliland, supra, the question was whether the False Claims Act was restricted to matters in which the Government has some financial or proprietary interest. The Court held that it was not. The conclusion was premised largely on the fact that by amendment in 1934¹³ Congress had eliminated from the statute as it had theretofore existed¹⁴ the words "or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States," and that the legislative history of the amending act showed that this omission was deliberate and intentional. Thus, the Court held that defrauding the United States in a pecuniary or financial sense is not a constituent ingredient of offenses under the False Claims Act.

It necessarily follows, in our view, that the Suspension Act does not apply to offenses under the False Claims Act. The Supreme Court has clearly said (1) that a statute identical in pertinent part with the Suspension Act does not apply to offenses of which defrauding the United States in a pecuniary way is not an essential ingredient; and (2) that such defrauding of the United States is not an essential ingredient of offenses under the False Claims statute. If perjury on an official document required to be filed under a federal statute, the making of false income tax returns and an attempt to evade taxes are not defrauding the United States within the meaning of a statute of limitations, we do not see how making a false statement in the course of an inquiry into one's qualifications for federal employment can be.

The contention of the Government is that the Gilliland case, supra,...