Rolland v. United States, 13889.

• Decision Date: 02 March 1953
• Docket Number: No. 13889.,13889.
• Citation: 200 F.2d 678
• Parties: ROLLAND v. UNITED STATES
• Court: U.S. Court of Appeals — Fifth Circuit

200 F.2d 678 (1953)

ROLLAND v. UNITED STATES

No. 13889.

United States Court of Appeals Fifth Circuit.

January 6, 1953.

Rehearing Denied March 2, 1953.

R. A. Dowling, New Orleans, La., for appellant.

Richard C. Baldwin, Asst. U. S. Atty., John N. McKay, U. S. Atty., New Orleans, La., William S. Tyson, Sol., Bessie Margolin, Asst. Sol., Joseph D. Mladinov, Atty., U. S. Dept. of Labor, Washington, D. C., and Earl Street, Reg. Atty., Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

Found guilty on counts One¹ and Four² of a four count indictment purporting to charge him and two others with violations of Section 1001 of 18 U.S.C.A., the defendant Rolland appealed, relying for reversal on two main contentions.

The first, applicable to both counts alike, is that they were defective in failing to allege, in haec verba, or in substance, and the proof was insufficient in failing to establish, the essential facts³ that the claimed false statements were "material".

The other, applicable only to count one, is that the evidence did not, as alleged in the indictment, show that defendant "made and furnished the Wage, Hour and Public Contracts Division a statement * * *".

As a complete answer to the first contention, the United States, asserting that the indictment is almost in the precise language of that in United States v. Moore, 5 Cir., 185 F.2d 92, 94, insists that the first point is without merit.

We cannot agree that this is so. In that case the indictment as to each of the counts charged, in the language of the statute, that the facts were "material", and, in sustaining the view of the district judge, that the United States must prove that defendants were subject to the act, we said:

"We agree fully with the district judge that the statements charged to have been `material\' would have been material only if appellee was subject to the Act, and that since the statute makes `materiality\' an essential ingredient of the offense, the making of the statements, though false, would not constitute an offense unless defendants were subject to the Act."⁴

Further, after saying:

"* * * the indictment, charging as it does both that the matters concealed and falsely represented were material and that they were matters within the jurisdiction of the Wage and Hour Division of the Department of Labor, was sufficient on its face to charge a violation of the act."

we went on to say:

"If, therefore, on the trial it is proved that the statements charged were made and were material and that they were made with regard to a matter within the jurisdiction of the Administrator, acting in this case through his designated representative, the Wage and Hour Division, that is that the defendants were, as to the employees named or some of them, under the coverage of the Act and subject to its jurisdiction, the indictment and proof would sustain a conviction. * * *" (Emphasis supplied.)

In contrast to the indictment in that case, the challenged counts here do not allege that the statements complained of were "material", they do not state facts which show them to be.

Count one does charge that the defendants knowingly and wilfully "made and furnished * * * a statement setting forth * * *" that the defendants had paid one Ward the sum of $94.47 when they well knew that such payment had not been made. It does not, however, allege that the statement was "material", nor does it allege, that that amount was actually due to the employee named. Instead of doing so, it alleges merely that "said sum had been determined by the said Wage, Hour, and Public Contract Divisions to be due to the said employee as overtime compensation * * *".

Nothing in the Fair Labor Standards Act, 29 U.S.C.A., §§ 201-219, in connection with the enforcement of which it is claimed that this determination was made, either directs or authorizes the Wage and Hour Division to make such a determination, or gives any effect to it when made. This being so, Count One of the indictment failed to charge an offense in that neither in haec verba, nor in substance, did it charge the essential fact that the complained of statement was material.

There is no allegation that Ward was an employee whose wages were subject to the act, none that the sum of $94.47, or any other sum, was actually due him thereunder.

This is true, also, as to Count Four, which differs from Count One only in that Count One deals with furnishing a so-called document containing a false statement as to the payment to one Ward, while Count Four deals with oral statements made to investigators with respect to payments to Ward and to two others.

For the failure to allege these essential facts, both counts were defective, and the motions to dismiss both of them should have been sustained.

It is equally true that, since the proof followed the allegations of the indictment and no showing was made that the sums dealt with in it were actually due, the motion of the defendant for a judgment of acquittal as to these two counts should have been granted.

While this is true as to both counts, there are other and equally cogent reasons why the verdict should have been instructed for appellant on Count One. This count, after stating that the defendants knowingly and wilfully made and used a false statement, went on to specify the offense thus: "* * * in...