United States v. Presser

• Decision Date: 07 November 1938
• Docket Number: No. 124.,124.
• Parties: UNITED STATES v. PRESSER.
• Court: U.S. Court of Appeals — Second Circuit

99 F.2d 819 (1938)

UNITED STATES v. PRESSER.

No. 124.

Circuit Court of Appeals, Second Circuit.

November 7, 1938.

Edward I. Kaplan, of New York City, for appellant.

Lamar Hardy, U. S. Atty., of New York City (Walter B. Lockwood, Asst. U. S. Atty., of New York City, of counsel), for the United States.

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

AUGUSTUS N. HAND, Circuit Judge.

The defendant was convicted of violating Section 80 of Title 18, United States Code, 18 U.S.C.A. § 80, by presenting false vouchers and affidavits to the Treasury Department, Procurement Division, in order to secure pay under certain contracts. The section in question is as follows:

"§ 80. (Criminal Code, section 35, amended.) Presenting false claims; aiding in obtaining payment thereof. Whoever shall * * * make or cause to be made any false or fraudulent statements or representations, or 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, shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

The indictment contained eleven similar counts charging the defendant with violating the above statute by submitting documents containing false statements in the payment of wage scale rates. The jury returned a verdict of guilty on all except the fourth and eighth counts, these two having been withdrawn.

The first count, which is typical of the others, alleged that by virtue of five certain specified contracts and amendments thereto made between the United States Treasury Department, Procurement Division, and the defendant, the latter became a contractor for the furnishing of trucks and station wagons, together with paid personnel for their operation, to the United States Treasury Department, Procurement Division, at various locations in New York City, and that the contracts and schedules of quantities and prices and specifications attached thereto, and amendments thereof, provided that the defendant was to pay hired chauffeurs at the rate of 75 cents per hour. The count further alleged that by virtue of the Emergency Relief Appropriation Act of 1935, 49 Stat. 115, and the Act of June 22, 1936, known as the Emergency Relief Appropriation Act of 1936, 49 Stat. 1608, and the executive orders, rules, regulations and instructions made and promulgated by the President, the Secretary of the Treasury and the Administrator of the Works Progress Administration, pursuant to such Acts of Congress and the contracts and specifications and amendments, the payment of the hired chauffeurs at the rate of 75 cents per hour was a matter within the jurisdiction of a department and agency of the United States, to wit, the United States Treasury Department, Procurement Division. The count finally charged that on or about May 28, 1937, the defendant unlawfully made and used a false voucher account and affidavit, wherein he stated that he had paid James Hackett, a hired chauffeur, at the rate of 75 cents per hour, whereas the rate actually paid was 37½ cents per hour. There was no claim that the government did not receive all it contracted for in the way of trucks and personnel, and the only charge was the failure of the defendant to pay the wage rate agreed. The other counts under which the defendant was convicted differed only in naming other chauffeurs alleged to have been paid less than 75 cents per hour.

The errors relied upon on this appeal are (1) that the government failed to establish that the payment of chauffeurs at the rate of 75 cents per hour was a matter within the jurisdiction of the Treasury Department by virtue of the legislative enactments and executive orders, rules, regulations and instructions; (2) that there was no evidence that there was an intent to deceive the government; (3) that there were errors in the admission and exclusion of evidence; and (4) that there was error in the imposition of the sentence of a year and a day.

The payment of the wages required by the contracts was a matter within the jurisdiction of the Treasury Department.

Under the Emergency Relief Joint Resolution of April 8, 1935, 49 Stat. 115, the President was authorized to direct the expenditure of funds on work projects and in doing this to establish and prescribe the duties and functions of necessary agencies within the Government. He was further given authority to determine rates of pay for all persons engaged in any project financed by funds appropriated under the General Resolution, provided the rates would not affect adversely or tend to decrease those paid for work of a similar nature.

By Executive Order No. 7034, dated May 6, 1935, the President set up the Works Progress Administration which was to be responsible to the President for the execution of the work relief program. Under that order, the Secretary of the Treasury was authorized through the Director of Procurement to purchase all supplies and equipment for work projects. On May 20, 1935, the President fixed a schedule of wages for each state governing projects financed, but provided that on projects which the WPA Administrator should exempt, wage rates...