McCoy v. United States

• Decision Date: 08 October 1948
• Docket Number: No. 11474.,11474.
• Citation: 169 F.2d 776
• Parties: McCOY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

169 F.2d 776 (1948)

McCOY v. UNITED STATES.

No. 11474.

Circuit Court of Appeals. Ninth Circuit.

August 24, 1948.

Rehearing Denied October 8, 1948.

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Wellington D. Rankin and Arthur P. Acher, both of Helena, Mont., and Charles L. Zimmerman, of Butte, Mont., and H. B. Landoe, of Bozeman, Mont., for appellant.

John B. Tansil, U. S. Atty., of Billings, Mont., and Harlow Pease and Emmett C. Angland, Asst. U. S. Attys., both of Butte, Mont., for appellee.

Before GARRECHT, DENMAN, MATHEWS, STEPHENS, HEALY, BONE, and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

This case was heretofore argued and submitted to a division of this court and thereafter was reargued and resubmitted to the court en banc. The court's opinion and order affirming the judgment was filed and made June 28, 1948. On August 24, 1948, the opinion was withdrawn for correction and this opinion was filed. Judge Garrecht approved this opinion, but died before it was filed.

Irving McCoy was indicted in two counts with violations of 18 U.S.C.A. § 80 for the presentation of false claims and for aiding and abetting the presentations of false claims to an agency of the United States. The trial court denied motions to dismiss as to each count, but ordered a judgment of acquittal as to the first count, and denied the motion to acquit as to the second count. In accordance therewith a judgment of acquittal on the first count was had, and the second count was tried to a judge and jury. A verdict of guilty was returned. Judgment was entered and sentence was pronounced. McCoy appeals.¹

It was charged in the second count that McCoy "knowingly and wilfully made and caused to be made and aided and abetted in making a false and fraudulent statement and representation and knowingly and wilfully presented and caused to be presented and aided and abetted in presenting said false and fraudulent statement and representation to the United States Government, * * * knowing said statement to contain fraudulent and false statements for the purchase * * *" of two surplus army trucks "* * * for the purpose of aiding a veteran to establish and maintain his own small business, profession or agricultural enterprise while in truth and in fact the defendant was not a veteran entitled to purchase said trucks under the provisions of the Surplus Property Act, 50 U. S.C.A.Appendix, § 1611 et seq. * * * and the purchase of said trucks were in fact for the purpose of being used in a nonveteran's business, viz., the business of the defendant."

Upon appeal McCoy raises several points, each of which he argues as constituting reversible error. We treat each point under appropriate subheadings.

The court refused to dismiss second count.

Was an offense against the laws of the United States charged in the second count of the indictment? It is claimed that the purchase by a veteran of surplus property for use in a non-veteran's business is not unlawful, so that even if the facts alleged in the indictment are true, the concluding allegation "and the purchase of said trucks were in fact for the purpose of being used in a non-veteran's business, viz., the business of the defendant" destroys the validity of the indictment. It is thus concluded by appellant that since the indictment alleges that the property was to be used in the business of the defendant, a non-veteran, but does not negative the idea that the property might have been required by the veteran, as a condition precedent to employment, all of the facts as alleged could be true and defendant could not be guilty. The Surplus Property Administration, Reg. 7, Fed. Reg., Vol. 10, No. 203, pp. 12849-50, is cited, in which it is provided that a veteran may be deemed to have his "own business" etc., for the purpose of acquiring property when he is "engaged by others as an employee or agent and is required by his employment to have his own tools or equipment."

Appellant's construction of the indictment is too narrow. In the first place every particular relating to the charge is not required to be set out in the indictment, and it is not required that every possible combination of facts, which would constitute legal acts, should be negatived in it. Hopper v. United States, 9 Cir., 142 F.2d 181.² However, the indictment is not reasonably subject to the construction appellant puts upon it. The allegations of the indictment are that the purpose of the intended purchase was for a permitted use by the veteran in aid of his own business. Such purpose, however, was untrue, and the real purpose was in the interest of the non-veteran. The claim that the indictment is fatally defective rests upon a strained technical analysis of the drafter's rhetoric to the effect that a mere possible meaning of the language used could be that the trucks were purchased for use in the veteran's business of hauling for the non-veteran in his business. However, even such technical analysis does not lead to appellant's conclusions. The indictment must be considered as a whole, and the violated statute is cited in it and plainly informs the accused of the law allegedly violated. The gist of the government's accusation is that the real purpose for acquiring the trucks was in the interest of the non-veteran and not in the interest of the veteran. The construction of the sentences reciting the acts which constitute the alleged offense plainly sets off the real purpose of the veteran-applicant as opposite to and inconsistent with any purpose of the veteran in his own use of the trucks. The recital of such acts also precludes any possible double jeopardy, for they are definitely identified. See Bridgeman v. United States, 9 Cir., 140 F. 577; Bost v. United States, 9 Cir., 103 F.2d 717; and United States v. Goldsmith, 2 Cir., 108 F.2d 917, 920, 921.

In refusing to dismiss the second count, the court committed no error.

The court refused to order an acquittal on second count.

Appellant argues insufficiency of evidence to sustain the judgment of conviction and that the court erred in denying a motion for the entry of a judgment of acquittal on the second count. The case is built on evidence, which, the government asserts, shows that McCoy aided and abetted Frederick Browning, a veteran entitled to purchase surplus property for his own use, in presenting purchase applications on their faces representing that the property is to be used for the veteran in a permissible enterprise, such representations, however, being false and fraudulent.

Appellant, the defendant below, offered no evidence other than testimony as to his good reputation. The evidence introduced by the government, then, stands upon its own intrinsic merit affected only by the testimony as to McCoy's reputation.

It was the theory of the government that McCoy had a general plan to use veterans as a means of acquiring war surplus property for his own business. It is disclosed by the evidence that McCoy procured a catalogue issued by the War Assets Administration from one Lahren, a veteran. When McCoy discovered that Lahren was going to Seattle to secure some equipment with $2500, he offered to and did drive him from Livingston, Montana, to Seattle. Together they went to several places in the State of Washington where supplies of surplus property were held, and McCoy proposed to Lahren to pay half of the purchase price on various items. McCoy proposed that the two each pay one-half the purchase price of about $5000 for a bulldozer to be resold in California. While in Seattle, McCoy went to fill out applications with Lahren for the purchase of surplus property and helped fill in the details after having read the application blank and thereby familiarizing himself with its requisites. Lahren did not finally consent to make any purchase, and nothing was purchased on the trip. On another trip McCoy drove Lahren to Butte, Montana, where a sale was being advertised, and on the way he picked up Browning, another veteran. Lahren testified that McCoy told him "* * * the more veterans he had, the more chance he had of getting equipment."

It was at Butte that the transactions occurred with which we are directly concerned. Browning testified that he received advice on the trucks from McCoy, and that he signed the application in question for the purchase of two surplus property trucks after discussing the matter with McCoy. McCoy paid the whole purchase price and took delivery. According to Browning, an arrangement was entered into between the two, whereby McCoy was to retain possession of the trucks until they were paid for, which was to be accomplished through hauling agreements with "Gallatin Industries", a corporation. After they had been paid for they were to belong to McCoy and Browning, "fifty-fifty." "Gallatin Industries" was named in the application as the enterprise in which the trucks were to be used for hauling lava rock. Browning and McCoy each had an interest in "Gallatin Industries". At the time of the trial the trucks had not been so used, and were still in the possession of McCoy, because, according to Browning, "Gallatin Industries" was waiting to get bigger block machines so the material could be used by the company. One of the two trucks was registered by McCoy in Browning's name, and the other one remained unregistered. Browning denied that McCoy had anything to do with the actual making of the application itself, and that he, Browning, made no false statement in the application. Browning, at the trial, could not tell the cost of the trucks, but testified that no writing passed between himself and McCoy, and nothing was said about interest on the money paid for the trucks.

It was stated in the application: "(4) I hereby certify that the surplus property herein applied for is to be used in and as a part of the enterprise described herein." A witness on behalf of the government, Mrs. Woodhull, testified that while the trial was in progress a note was given by McCoy to her...