United States v. J. Greenbaum & Sons

• Decision Date: 01 December 1941
• Docket Number: No. 55.,55.
• Citation: 123 F.2d 770
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES v. J. GREENBAUM & SONS, Inc., et al.

123 F.2d 770 (1941)

UNITED STATES v. J. GREENBAUM & SONS, Inc., et al.

No. 55.

Circuit Court of Appeals, Second Circuit.

December 1, 1941.

Frederick Malcolm Wolf, of New York City, for appellants Harry Greenbaum and J. Greenbaum & Sons, Inc.

Wegman & Climenko, of New York City (J. Bertram Wegman, of New York City, of counsel), for appellants Irving Suben and Daniel Quigley, Jr.

Mathias F. Correa, U. S. Atty., of New York City (Jay Slonim, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

These appellants were found guilty by a jury upon two indictments which were tried together. The earlier indictment, filed June 30, 1938, charges the commission of offenses in connection with the construction of Public School No. 7 in the Bronx, New York. This was a project financed in part with funds obtained from the United States through its agency the Federal Emergency Administration of Public Works, hereafter referred to as PWA. The Greenbaum corporation became the subcontractor for the laying of wood floors in Public School No. 7, and as such was bound to pay its carpenters the rate of wages required by the general contractor's contract with the Board of Education of the city of New York and by the PWA regulations, namely, $1.40 per hour. Harry Greenbaum was the secretary and executive officer of the Greenbaum corporation. Suben and Quigley were foremen who supervised the job and hired and paid the floor layers. The indictment charged that the defendants paid the floor layers at a lesser rate than $1.40 per hour and knowingly submitted to the PWA resident engineer inspector false and fraudulent statements certifying to payment of the required rate of wages. Three pay rolls were involved, one for each of the weeks ending October 14th, 21st and 28th in the year 1936, and each count of the indictment related to a separate underpayment to a specified carpenter during one of those weeks. Each such payment was charged to have been falsely reported in the pay roll for that week in violation of the statute, 18 U.S.C.A. § 80.

In addition to its subcontract for Public School No. 7, the Greenbaum corporation was subcontractor on eight other school projects similarly financed with PWA funds. The conspiracy indictment, returned March 29, 1940, charged the appellants with conspiring to defraud the United States of "their governmental functions and rights" in respect to all these school projects by committing offenses of the character above described with reference to Public School No. 7.

At the trial the defendants offered no evidence. When the government closed its case they moved for dismissal of the indictments and for a directed verdict of acquittal. Certain of the counts of the substantive indictment were dismissed, but on the remaining counts and on the conspiracy indictment the case went to the jury, which found the defendants guilty. Upon the conspiracy indictment the corporation was fined $10,000 and each of the individual defendants was sentenced to imprisonment for one year and a day. Upon the substantive indictment the corporation was fined $1 and the individuals were each given a prison sentence on each count, the sentences to run concurrently with each other and with the sentence, which was for the same term, under the conspiracy indictment. These appeals raise four questions: (1) the sufficiency of the evidence to sustain the conviction under either indictment; (2) the applicability of the statute, 18 U.S.C.A. § 80; (3) the court's charge to the jury; and (4) the statute of limitations as a bar to the conspiracy indictment.

As to the appellants Suben and Quigley, the sufficiency of the evidence is so clear as to require little discussion. They acted as foremen for the Greenbaum corporation, hired the carpenters at agreed wage rates which were less than $1.40 per hour, and one or both were accustomed to make payment to the men of their weekly wages at the rates at which they were hired. The contention that these appellants had no knowledge of the required scale of $1.40 per hour will not withstand scrutiny. Not only was the PWA scale of wages posted at each project, so that it is incredible that they could have been ignorant of it, but there is testimony that on occasions when they were accompanied by a PWA inspector on pay day, they would pay the carpenters at the rate of $1.40 per hour and then later demand and receive a "kick-back" of the excess above the agreed wages. Although neither of them signed the pay roll affidavits, each admitted in a sworn statement which was introduced against him that at times he personally delivered...