United States v. Brogren, Criminal No. 16979

• Decision Date: 13 November 1945
• Docket Number: 16902,Criminal No. 16979,16740,16924,16941.,16774,16899,16729,16925,16826,16934
• Citation: United States v. Brogren, 63 F.Supp. 702 (D. Mass. 1945)
• Parties: UNITED STATES v. BROGREN et al.
• Court: U.S. District Court — District of Massachusetts

63 F. Supp. 702

UNITED STATES v.BROGREN et al.

Criminal Nos. 16979, 16826, 16774, 16899, 16902, 16924, 16925, 16729, 16740, 16934, 16941.

District Court, D. Massachusetts.

November 13, 1945.

Edmund J. Brandon, U. S. Atty., and Joseph M. Hargedon, Asst. U. S. Atty., both of Boston, Mass., for the Government.

H. C. Thompson, of Boston, Mass., for defendants Brogren, Bryson, Mannos, McDevitt, Russo, Snow, and Welch.

Abraham Keller, of Dorchester, Mass., for defendant Harkins.

L. J. O'Malley, of Boston, Mass., for defendants Rowe and Smith.

HEALEY, District Judge.

The defendants McDevitt, Welch and the others, have been indicted for the substantive offense of causing to be made and presented for payment and approval, to an officer in the naval service of the United States, claims upon and against the Navy Department of the United States of America, which claims the defendants knew to be false, fictitious and fraudulent.

The defendants have all filed demurrers to the respective indictments against them, all based on the same grounds.

The indictments make substantially the following allegations:

That the Bethlehem-Hingham Shipyard, Inc., hereinafter referred to as the Shipyard, was a corporation engaged at Hingham, Massachusetts, in the manufacture and construction of ships for the United States Navy Department, pursuant to contracts entered into between the Navy Department and the Shipyard for the construction of naval vessels.By the terms of each contract, the Shipyard was to be reimbursed by the United States of America in the payment of the total true cost in performance of the contract, which cost included work done in connection with the performance of the contract by employees of the Shipyard who were engaged in the manufacture and construction of the ships.

That the defendants were employed as welders and counters engaged in the construction of the ships.

That on or about certain dates specified in the various indictments, the defendants did unlawfully, knowingly, and wilfully cause to be made and presented for payment and approval, to an officer in the naval service of the United States having authority to approve such claims, claims upon and against the Navy Department of the United States of America, which claims the defendants knew to be false, fictitious and fraudulent in that they caused the Shipyard to make and present, on the dates specified, for approval and payment to the Supervisor of Shipbuilding, United States Navy, Bethlehem Steel Company, Massachusetts, claims against the Navy Department of the United States which were false, fraudulent and fictitious, in that they included, in the payroll charges for which reimbursement was claimed therein as part of the cost of work done in connection with the performance of the contract, certain sums paid to certain welders, to which said welders were not entitled.

That these false claims were made, in the case of each welder, by fraudulently reporting to the counters, assigned by the Shipyard to count and measure the daily output of work performed by each welder, a fictitious amount and kind of welding not actually performed by him, and by signing and certifying to the Shipyard as true and correct certain daily piecework tally slips containing entries thereon which were false and fraudulent as to the amount and kind of welding performed by him, which resulted in the welder being given credit by the Shipyard, under its work incentive plan, for certain bonus hours of work which he had not in fact earned, and for which he received certain wage payments to which he was not in fact entitled.

That in the case of each counter, these claims were alleged to have been made, by knowingly and wilfully making out, signing, and certifying as true and correct certain daily piecework tally sheets for various welders whose work he was assigned to count and measure, which tally sheets were false and fraudulent in that they set forth therein welding work which was in excess of the amount actually performed by the welders, as a result of which the welders were given credit by the Shipyard for bonus hours to which they were not entitled, and for which the welders received certain wage payments for each bonus hour, to which payments they were not entitled.

The indictments then allege that each of the defendants well knew that the Shipyard was entitled to reimbursement by the Navy Department of the United States, and that the Shipyard would use the aforesaid daily piecework tally slips and tally sheets as a basis of computing the cost of work done by it, in performance of the contract, for which it was entitled to be reimbursed by the Navy Department.

Each of the defendants has demurred to the respective indictments on the grounds:

1.That no reference is made to any statute of the United States of America under which the indictment is alleged to have been brought.

2.That no crime against the United States is set forth in the indictment.

3.That the statute under which the indictment is brought is unconstitutional in that it contravenes the Tenth Amendment to the Constitution of the United States of America, because it purports to exercise the police power which is reversed to the several states of the Union.

The defendant Welch demurs also on the further ground that there is a misnomer in the indictment against him, in that he is named therein as "John W. Welch alias John Woolie Welch," whereas his true name is "John Willie Welch."

Section 35(A) of the Criminal Code, as amended, 18 U.S.C.A. § 80, provides:

"Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the * * * naval service of the United States, or any department thereof, * * * any claim upon or against the Government of the United States, or any department or officer thereof, * * * knowing such claim to be false, fictitious, or fraudulent *...