Todorow v. United States

• Decision Date: 06 June 1949
• Docket Number: No. 11629.,11629.
• Citation: 173 F.2d 439
• Parties: TODOROW et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

173 F.2d 439 (1949)

TODOROW et al. v. UNITED STATES.

No. 11629.

United States Court of Appeals Ninth Circuit.

February 15, 1949.

Rehearing Denied March 18, 1949.

Writ of Certiorari Denied June 6, 1949.

COPYRIGHT MATERIAL OMITTED

Morris Lavine, of Los Angeles, Cal., for appellants.

James M. Carter, U. S. Atty., Ernest A. Tolin, Chief Asst. U. S. Atty., and Paul Fitting, Asst. U. S. Atty., all of Los Angeles, Cal., for appellee.

Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.

Writ of Certiorari Denied June 6, 1949. See 69 S.Ct. 1169.

DRIVER, District Judge.

In each of the four counts of the indictment, the appellants were accused of violation of the false claims act, 18 U.S.C.A. § 80.¹ The jury acquitted them on the first three counts. They have appealed from their conviction on Count IV.

Count IV charged that on July 11, 1946, appellants knowingly and willfully caused Byron N. Taylor, a veteran of World War II, to make false and fraudulent statements and representations in connection with his purchase of certain trucks as surplus property of the United States, a matter within the jurisdiction of the War Assets Administration; that the statements appeared in a "Veteran's Application for Surplus Property" and a "Purchase-Requisition Form," filled out by Taylor; and that he therein falsely represented that he would immediately start an oil transporting business as an individual proprietor and was purchasing the vehicles for his own personal use, or for the maintenance of his business, and not for the purpose of resale.

The pertinent part of the false claims act reads as follows: "* * * whoever shall knowingly and willfully * * * make or cause to be made 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 * * * or imprisoned * * * or both."

First of all, appellants contend that the evidence is not sufficient to support the verdict. The contention calls for an examination of the basic facts as the jury could have found them from the evidence if every conflict in the testimony had been resolved in favor of the appellee.

From May until August of 1946, the War Assets Administration conducted a sale of surplus trucks at Port Hueneme, California. No purchaser could buy more than twenty-five units. At the outset, veterans had exclusive priority, but the rules were changed from time to time as the sale progressed to permit other groups to participate. On July 11, veterans, government, state, and municipal agencies, and licensed automobile dealers were eligible to purchase to the exclusion of the general public, but on a first-come-first-served basis, without priority as to each other.

Appellant Todorow, an exporter of trucks and tires of New York City, and appellant Potolski, an automobile dealer of Albany, New York, came to California together to buy trucks at the sale. On June 26, they were certified as veterans at Port Hueneme and, together, purchased fifty dump trucks, the full limit of their allowances. They knew that their quotas had been exhausted.

About two weeks later, at a hotel in Los Angeles, where appellants were staying, appellant Todorow approached Byron N. Taylor, an elevator operator, and asked him if he was a veteran. Upon receiving an affirmative reply, Todorow offered to pay Taylor twenty dollars if the latter would go, the next day, to the surplus property sale and buy some trucks for Todorow. The next day, Taylor, together with another veteran by the name of Lauridsen, who was a parking attendant at the same hotel, went with appellants to Port Hueneme in a car driven by Potolski. On the way, Lauridsen asked about the legality of the arrangement and Potolski said that appellants were in the used car business, had bought their limit of trucks and were using other veterans' priorities. Appellants instructed Taylor and Lauridsen to buy refueler trucks.

Upon their arrival at Port Hueneme, all four of the party entered the certification building, where Taylor and Lauridsen were certified as veterans, and each made out an application for six refueler trucks. In his application, Taylor stated that he planned to start operations as soon as possible in the business of transporting oil, as an individual proprietor, and certified that he was not procuring the trucks for the purpose of resale, but for use in that business. He also signed a purchase-requisition form, which recited that he was purchasing the trucks for his own personal and business use. At that time, Taylor had no intention of going into the oil transporting business.

As he was making out his application form, Taylor turned to appellant Todorow and asked what business he "ought to put down." Todorow replied that there was no question as to what business Taylor was "going in" and that "anything would be sufficient." After his completed application had been turned in, Taylor was given a purchase-requisition form. Todorow examined it, and, upon discovering that it authorized the purchase of only one truck, told Taylor to go back to "Building X" and have it changed to cover six trucks. Taylor went back as directed, but was not successful, and later on Todorow went with him to "Building X," where Todorow pursuaded a clerk to assign five additional trucks to Taylor. Contracts for the sale of six trucks, each, to Taylor and Lauridsen were made out and were then handed to appellant Todorow in "Building W," at Port Hueneme, in the presence of appellant Potolski. Eventually, after they had been questioned by representatives of the War Assets Administration, appellants destroyed the Taylor purchase contract and the transaction was never consummated.

On the return trip from Port Hueneme to Los Angeles, on July 11, appellant Potolski gave Taylor twenty dollars and handed him a prepared receipt, which Taylor signed and handed back to Potolski. It was worded to acknowledge receipt of twenty dollars from Potolski and Todorow. Appellant Todorow was driving the car at the time. Lauridsen was paid fifteen dollars, but refused to sign a receipt. When Lauridsen asked, "Why all the hush-hush up at Port Hueneme if everything was so legal?" — appellant Potolski answered, "We didn't want it to look like you were buying them for us."

It is apparent from the foregoing summary that there was substantial proof of at least two elements of the charge, namely, that Taylor made the representations, alleged in Count IV, and that the representations were false. As to whether appellants caused Taylor to make the false statements, they maintain there was a failure of proof, since they did not tell him how to fill out his application and did not know what statements it contained. It was not necessary, however, that they be directly responsible for the specific representations, which Taylor made, or that the wording of the representations be of their dictation. They were the instigators, the planners, and the prospective beneficiaries of the whole scheme, the success of which, necessarily, depended upon the making of false statements by Taylor. It may fairly be assumed that they were familiar with the procedure followed at the sale, the application forms used, and the requirements as to veterans, as they had previously purchased their full quotas as veterans. They knew that he was not a dealer and that his only claim to priority was as a veteran. When they induced him to make the application for the purchase of the trucks for their benefit and not for his own use, in legal effect, they caused Taylor to make the false representations, which he was obliged to make in order to qualify as an eligible war veteran purchaser at the surplus property sale.²

Appellants argue that the evidence should be regarded as insufficient because the convictions rest upon the unsupported testimony of Taylor and that in the present case, as in prosecutions for perjury, "there ought to be two witnesses." There is no sound reason for invoking the perjury rule here.³ We are not called upon to sustain a finding that statements were false on the sole basis of "an oath against an oath." It was not disputed that Taylor made false representations in his application. There was a conflict in the testimony as to whether appellants caused the representations to be made, but in that regard, Taylor was corroborated by circumstances which tended to support his version of the transaction. The appellants transported him and Lauridsen from Los Angeles to Port Hueneme and back again in a hired automobile. While at Port Hueneme with the appellants, on July 11, Taylor applied for the purchase of six, surplus, tank, refueler trucks. Taylor's contract of purchase was turned over to appellants, and they paid him the sum of twenty dollars for his services. Even though it be assumed, however, that the verdict was based upon Taylor's testimony alone and that Taylor was an accomplice, the conviction should not be set aside on that account, since it lawfully may rest upon the uncorroborated testimony of an accomplice.⁴

Appellants, in effect, question whether the misrepresentations, made by Taylor, were in a matter within the jurisdiction of an agency of the United States, as they complain that there was no evidence of any "rule, regulation, or order" concerning which any false statements were made. The War Assets Administration was created by an executive order of January 31, 1946, to exercise functions relating to the disposal of domestic, surplus property. Executive Order 9689, 50 U.S.C.A.Appendix, § 1614a note, 1 CFR, 1946, Supp., p. 93. By the Act of May 3, 1946, 60 Stat. 168, 50 U.S.C.A.Appendix, § 1625, the Administration was recognized and empowered by Congress to prescribe regulations to aid veterans in the acquisition of surplus property. The Administration's regulation No. 2, effective May 3, 1946, 11 F. R. 5125 et seq., covered the disposal of surplus property to...