United States v. Brethauer

• Decision Date: 21 March 1963
• Docket Number: No. 5750.,5750.
• Citation: 214 F. Supp. 820
• Parties: UNITED STATES of America, Plaintiff, v. George Edwin BRETHAUER, Defendant.
• Court: U.S. District Court — Western District of Missouri

214 F. Supp. 820

UNITED STATES of America, Plaintiff, v. George Edwin BRETHAUER, Defendant.

No. 5750.

United States District Court W. D. Missouri, S. D.

March 21, 1963.

F. Russell Millin, U. S. Dist. Atty., William Kitchen, Asst. U. S. Atty., for plaintiff.

William A. Wear, Springfield, Mo., for defendant.

JOHN W. OLIVER, District Judge.

This case pends on defendant's motion to dismiss all three counts of the indictment, each of which, involving different years, is based on Section 1001 of Title 18, United States Code. Defendant contends that none of the counts allege a violation of the statute.

In support of defendant's motion it is suggested that (1) the alleged false statement, as set forth in each count of the indictment, is not a statement of "material fact", and that (2) assuming the statements involved were both false and material, they do not pertain to "any matter within the jurisdiction of any department or agency of the United States".

Section 1001 of Title 18 United States Code, provides:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The Government concedes that a "material fact" must be established as an essential element of the offense. The question of whether the particular alleged misrepresentation alleged in the indictment was or was not "material" depends upon many factors that can be made apparent only by a full presentation of the entire factual situation. Such facts can not be fully presented in this case by a motion to dismiss the indictment. The first ground of defendant's motion is therefore ruled to be untenable.

In support of its second ground, defendant suggests that the leading and controlling case is Keane v. United States, 4th Cir. 1921, 272 F. 577. We do not agree.

That case reversed a conviction based upon an indictment under the then existing Section 37 of the Criminal Code (Comp.St. § 10201). The statute there involved provided:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." (Italics ours).

The majority opinion in Keane stated that the question before it was "whether or not the post exchange mentioned in the indictment is such an institution as that a fraud upon the United States can arise from or be involved in any transaction concerning it". But, instead of judging the case on the basis of the statutory language, the majority opinion in Keane looked to language in Mr. Justice Lurton's opinion in Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569 (1910) (which it attempted to distinguish) which stated that "the statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of the government". (Italics ours again).

The majority opinion in Keane then struggled with the question of whether a post exchange was a "department of the government"; concluded that it was not; and reversed the trial court which it said had determined to the contrary.

The majority opinion in Keane also placed major reliance upon certain language in Mr. Justice Blatchford's opinion in United States v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591 (1892). That reliance prompted defendant in this case to argue that from at least the time of the sutlers in the Civil War, post exchanges "just growed like Topsy". Defendant emphasizes that a post exchange is "a creature of regulations promulgated by the Army"; that "they are not creatures of statute"; and that "while Congress has from time to time recognized their existence it has not seen fit to enact legislation giving them statutory paternity". Again, with emphasis, defendant notes that "there is no Act of Congress which creates or defines `Post Exchanges'".

The actual thrust of defendant's argument, although that argument is spelled out in language borrowed from Keane, is that because Congress was not the father of the post exchange, it can not be said that a post exchange is "within the jurisdiction of any department or agency of the United States" within the meaning of Section 1001, Title 18 United States Code. We think defendant's reliance on Keane, and his emphasis on the absence of any Congressional paternity for a post exchange is misplaced. Congress has constitutional power to authorize the adoption and legitimization of many institutions that it may not have earlier chosen to sire.

United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911), made clear that regulations promulgated pursuant to Congressional authority may have the force of law and that an act of Congress is not in all instances a necessary prerequisite for the establishment of a jurisdiction upon which a criminal prosecution may be lawfully predicated. And Singer v. United States, 323 U.S. 338, 344, 65 S.Ct. 282, 89 L.Ed. 285 (1944), noted that Grimaud had emphasized that Eaton turned on its special facts and that Eaton did not establish "as a principle of federal criminal law that a provision which only punishes violations of a `law' does not cover violations of rules or regulations made in conformity with that law". See also United States v. Howard, 352 U.S. 212, 216, 77 S.Ct. 303, 1 L.Ed.2d 261 (1957), in which the Supreme Court again distinguished Eaton and held that even a violation of a State regulation could be considered as a violation of the "law of the State", within the meaning of the federal Black Bass Act which made it unlawful to...