Meyers v. United States

• Decision Date: 08 November 1948
• Docket Number: No. 9797.,9797.
• Parties: MEYERS v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

171 F.2d 800 (1948)

MEYERS v. UNITED STATES.

No. 9797.

United States Court of Appeals District of Columbia Circuit.

Argued June 14, 1948.

Decided November 8, 1948.

Writ of Certiorari Denied February 14, 1949.

Mr. Robert T. Bushnell, of Boston, Mass., with whom Messrs. Russell Hardy and Smith W. Brookhart, both of Washington, D. C., were on the brief, for appellant.

Mr. George Morris Fay, U. S. Atty., of Washington, D. C., with whom Mr. Edward Molenof, Sp. Asst. to the Atty. Gen., and Messrs. John W. Fihelly, Sidney S. Sachs and Ross O'Donoghue, Asst. U. S. Attys., all of Washington, D. C., were on the brief, for appellee.

Before WILBUR K. MILLER, PRETTYMAN and PROCTOR, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

Bleriot H. Lamarre and the appellant, Bennett E. Meyers, were jointly indicted for violating the District of Columbia statute¹ which denounces perjury and subornation thereof. Three counts of the indictment charged Lamarre with as many separate perjuries in his testimony before a sub-committee of a committee of the United States Senate constituted to investigate the national defense program, and three more counts accused Meyers of suborning the perjuries of his codefendant.

Lamarre pleaded guilty to all three charges when he was arraigned on December 19, 1947, a few days after the return of the indictment. Meyers entered a plea of not guilty and was tried before a jury in the District Court of the United States for the District of Columbia. At the conclusion of the government's evidence, he moved for a judgment of acquittal, which the court denied. Meyers did not take the stand or introduce any evidence. Having been found guilty under each of the three counts against him, he appeals.

Meyers was an officer in the United States Army. In 1939, while stationed at Wright Field, near Dayton, Ohio, he organized under the laws of Ohio a corporation called Aviation Electric Corporation, and paid into its treasury the sum of $500 to cover its authorized capital consisting of 250 shares of common stock having a par value of $2 each. At his direction, a certificate for 224 shares was issued to Miss June Ballaou, an employee at Wright Field, and the remaining shares were divided between one David Johnson and one Robert L. Pine. The newly organized company engaged in manufacturing parts and accessories for airplanes, and soon had on hand orders from the Signal Corps of the United States Army aggregating about $20,000.

The appellant had become acquainted with Lamarre and his wife as early as 1936 or 1937 and apparently was fond of them. Late in 1939, he went to see Lamarre in California, where the latter was employed by an airplane company, and suggested that he come to Dayton to become associated with Aviation Electric in an executive capacity. The invitation was accepted and in January, 1940, Lamarre was made secretary-treasurer of the corporation and the Ballaou certificate for 224 shares was transferred to him without valuable consideration. A few months thereafter he became president of the company.

From its modest beginning in 1939 the operations of Aviation Electric Corporation expanded substantially and rapidly. It obtained contracts to furnish parts to large corporations engaged in producing aircraft for the United States Army. Meyers advanced considerable sums for working capital and took therefor the company's promissory notes which were secured by the pledge and delivery to him of certificates, endorsed in blank, evidencing all its capital stock.

The appellant was transferred to Washington in 1941 and the next year became Deputy Chief of Procurement of Aircraft and Aircraft Parts for the Army Air Force. Meanwhile, Aviation Electric was operating successfully and profitably so that by the end of 1942 all Meyers' loans had been repaid. Large profits were earned as long as the war continued, but the termination of actual hostilities so reduced the demand for its products that the corporation was dissolved in September, 1946.

Desiring to ascertain whether there had been instances of waste, fraud, corruption, mismanagement, excessive profits or inefficiency in the nation's war effort, entailing as it did the hurried expenditure of billions of dollars for national defense, the United States Senate created the investigating committee to which reference has been made. In the course of an inquiry into government contracts with a large airplane supplier, the appellant testified before that committee. It developed during the hearing that Aviation Electric Corporation had been a sub-contractor on government work and that Lamarre had been its president from 1940 until its dissolution in 1946. In order to ascertain what connection, if any, the appellant had had with Aviation Electric, the subcommittee subpoenaed Lamarre, who testified on Saturday, October 4, and Monday, October 6, in 1947. That testimony brought about the indictment which was the genesis of the case now before us.

Three of the indictment's counts charged that Lamarre: (1) knowingly and willfully testified falsely that Meyers "was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio," during the years 1940 to 1947, inclusive; (2) knowingly and willfully testified falsely that a Cadillac automobile purchased in Washington by Meyers, and paid for by Aviation Electric Corporation, was purchased for the corporation and for its use; (3) knowingly and willfully testified falsely that the sum of $10,000, paid by means of Aviation Electric's checks, for decorating and furnishing Meyers' Washington apartment "was a gift from himself, Bleriot H. Lamarre."

Although the appellant was convicted on three counts, each of which charged him with suborning one of Lamarre's perjuries, he received only one sentence.² That being true, the judgment must be affirmed if appellant was properly convicted on any one of the three counts against him.³ We shall consider, nevertheless, appellant's assignments of error with respect to all the counts.

1. As to Meyers' financial interest in or connection with Aviation Electric Corporation.

On this subject, the first count of the indictment includes the following: "* * * In the course of his Lamarre's testimony it became material whether Bennett E. Meyers was financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, or 1947; and being questioned in that regard, Bleriot H. Lamarre on October 4 and October 6, 1947, and in the District of Columbia wilfully and contrary to his said oath testified falsely that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years or any of them, whereas in truth, as Bleriot H. Lamarre knew, Bennet E. Meyers was financially interested in and connected with the said Aviation Electric Corporation during each and all the years 1940, 1941, 1942, 1943, 1944, 1945, 1946 and 1947."

Appellant's counsel earnestly assert and ably argue that Lamarre did not testify before the subcommittee that Meyers was not financially interested in or connected with Aviation Electric; but that, quite to the contrary, Lamarre told the subcommittee Meyers actually owned the business. If that contention be well founded, it is a complete defense to the charge that Meyers suborned the perjury alleged in the first count. It is elementary that one cannot be convicted of suborning a perjury which was not in fact committed; that is to say, there can be no subornation of perjury if there was no perjury. It is equally true that one cannot be convicted of suborning perjury if the alleged perjurious statement actually was not made by the alleged perjuror.

No matter how unorthodox, unpatriotic, reprehensible or criminal the evidence may tend to show Meyers' conduct to have been, his conviction under the first count cannot stand if Lamarre did not in fact testify as the count charged that he did. So, at the threshold of our consideration of the first count, we must decide whether Lamarre in fact told the subcommittee Meyers was not financially interested in or connected with Aviation Electric. If it be found that he did so testify, then it will be pertinent to see whether the statement was true or false; and, if false, whether Meyers suborned it.

Whether Lamarre represented to the subcommittee that Meyers was not financially interested in or connected with the company is to be determined by finding the meaning or significance which is fairly attributable to all Lamarre's testimony before the subcommittee. A stenographically reported record of that testimony was put in evidence and is before us.

Appellant's insistence that Lamarre did not say what the first count charged him with saying, but said exactly the opposite, is based on the fact that Lamarre was asked this question, "So you understood all of the time that for all practical purposes, he Meyers owned the business?"; and that Lamarre answered by saying, "That is right," and then continued with other statements to that effect.

This bit of testimony, taken from its context and read without reference to or consideration of the remainder of Lamarre's evidence, supports appellant's contention that, regardless of the truth or falsity of the statement which the first count attributed to Lamarre, he simply did not say what he is alleged to have said, but definitely stated exactly the contrary. So, if Lamarre's answer to the quoted question were all he said on the subject, we should have no difficulty in accepting appellant's argument, and in holding that Lamarre did not commit the first perjury charged against him and that, therefore, Meyers was wrongly convicted of suborning it.

We turn first to the subcommittee counsel's examination of Lamarre, in the course of which he made the statement upon which appella...