United States v. Breen

• Decision Date: 09 May 1938
• Docket Number: No. 200.,200.
• Citation: 96 F.2d 782
• Parties: UNITED STATES v. BREEN et al.
• Court: U.S. Court of Appeals — Second Circuit

96 F.2d 782 (1938)

UNITED STATES v. BREEN et al.^*

No. 200.

Circuit Court of Appeals, Second Circuit.

May 9, 1938.

David V. Cahill, of New York City, for appellants.

Lamar Hardy, U. S. Atty., of New York City (Francis A. Mahony, Asst. U. S. Atty., and Frederick Backer, Sp. Asst. U. S. Atty., both of New York City, of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The appellants are a father and son who, with four others, were indicted by the grand jury for the Southern District of New York. The indictment charged them in each of four counts with the violation of 18 U.S.C.A. § 80, and in a fifth count with conspiracy so to do in violation of 18 U.S.C.A. § 88. There was a severance as to one of those indicted. The others were tried together; the two appellants being found guilty by the jury on each count and sentenced; the jury disagreeing as to each of the other defendants.

The appellants now seek reversal because they say the judge erroneously denied a motion to dismiss the indictment at the close of all the evidence. That has been briefed as though it were a motion for a directed verdict and we will so treat it. Reversible error is also claimed because of the definition of reasonable doubt given in the charge; because of the conduct of the judge during the trial; and because of the admission of certain evidence.

Section 80 of title 18 U.S.C.A. provides in so far as now material that: "Whoever shall knowingly and willfully * * * make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, in any matter within the jurisdiction of any department or agency of the United States" shall be punished as therein provided.

There was ample evidence to justify the jury in finding beyond a reasonable doubt that these appellants caused the Breen Contracting Company, a corporation of which appellant Joseph Breen was the president, to submit bids in 1935 for the furnishing to the Treasury Department of the United States, Procurement Division, of trucks and compressors for use on projects of the Works Progress Administration in or about New York City. Three of these bids were accepted and one contract was executed on August 1, 1935. Two other contracts were executed on September 3, 1935. Under them, the Breen Contracting Company agreed to furnish the trucks and compressors as they might be ordered at a stated price per day which included employees who were to be paid wages by the corporation at a specified rate. The jury was also justified in finding by the same measure of proof that appellants submitted or caused to be submitted for the corporation false vouchers, certificates, or affidavits to the United States Treasury Department for the purpose of obtaining, and on which there was obtained, payment under these contracts by knowingly and falsely representing that the corporation had paid its employees the wages as agreed which were higher than those in fact paid them; and by knowingly and falsely representing that more dynamite had been used than actually had been.

There was also ample evidence to justify the jury in finding that government officials began an investigation of the manner of the performance of these contracts by the Breen Contracting Company and the way in which payments under them had been received which caused appellant Michael F. Breen, Sr., to arrange for the award of such contracts in 1936 to the Breen Renting Corporation, of which he was president, instead of to the Breen Contracting Company, by representing to government officials that his son Joseph who was suspected of irregularities would be no longer in charge. Between January and April 1, 1936, six contracts for supplying equipment for projects of the Works Progress Administration similar to those the Breen Contracting Company had had in 1935 were entered into by the Breen Renting Corporation. False vouchers and certificates were signed by Michael F. Breen, Sr., as president, and submitted to the Treasury Department on which the Breen Renting Corporation was paid.

It is argued that, because Michael F. Breen, Sr., was an old man who had become rather inactive in business, it was not proved to the requisite degree of certainty in a criminal case that he knew the vouchers and certificates which he signed were false. On the evidence, however, that was fairly a jury question. He knew that suspicion at least had been directed toward the Breen Contracting Company the previous year in respect to its vouchers and certificates. The jury could well find that he had undertaken, when there was danger that the Breen Contracting Company would at least lose the chance to bid successfully on future business and the Breen Renting Corporation became a successful...