Winebrenner v. United States

• Decision Date: 07 March 1945
• Docket Number: 12812.,No. 12811,12811
• Citation: 147 F.2d 322
• Parties: WINEBRENNER v. UNITED STATES. LOOSE v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

147 F.2d 322 (1945)

WINEBRENNER v. UNITED STATES.

LOOSE v. SAME.

Nos. 12811, 12812.

Circuit Court of Appeals, Eighth Circuit.

February 14, 1945.

Rehearing Denied March 7, 1945.

John G. Madden, of Kansas City, Mo. (Ira B. Burns, R. R. Brewster, and Ben W. Swofford, all of Kansas City, Mo., Francis C. Canny, of Dayton, Ohio, and Haveth E. Mau, of Cincinnati, Ohio, on the brief), for appellants.

Sheridan Morgan, Sp. Asst. to Atty. Gen. (Tom C. Clark, Asst. Atty. Gen., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellants appeal from separate judgments of conviction. The indictment charged these appellants, together with Baker-Lockwood Mfg. Company, Inc., W. L. Mellor and Ben D. Christian, with divers other persons to the grand jury unknown, with having violated Section 88, U. S.C.A. Title 18, by conspiring to defraud the United States of its right to have the functions of the United States Army Air Forces at Wright Field, Dayton, Ohio, in the procurement of aircraft equipment, carried on in an efficient, fair and honest manner, and of its right to the conscientious, faithful and unbiased services of Cornelius G. Loose, free from corruption, improper influence, bias, fraud or personal pecuniary interest. The indictment charged that Cornelius G. Loose was an experienced employee of the Material Center at Wright Field, through which the Government was purchasing large amounts of equipment; that his advice and recommendations were relied upon by the military personnel in charge of the purchase of these materials; that Dahne W. Winebrenner, by various means, intentionally exercised such an influence over Loose as to have contracts awarded at unfair prices to persons who would agree to use Baker-Lockwood materials which Winebrenner sold; that Loose would use his position and influence in behalf of such persons as would and against such persons as would not use Baker-Lockwood materials, without regard to the merits of such materials. The pertinent portion of the statute under which the indictment was drawn reads as follows:

"If two or more persons conspire * * 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."

Each of the appellants was sentenced on December 21, 1943, to imprisonment for a period of two years and to pay a fine of $10,000. These appeals were consolidated by order of court and are presented on a single record of more than 2000 printed pages.

In seeking reversal appellants in substance contend: (1) That the court erred in overruling their motions for directed verdicts of acquittal since (a) there was no substantial evidence of the conspiracy charged, and (b) there was no substantial evidence of venue in the Western District of Missouri; (2) that the court erred in refusing to admonish the jury that its members should not discuss the cause or the evidence among themselves until final submission and in specifically authorizing the jury to discuss such evidence and to form and express opinions bearing upon the guilt or innocence of appellants with the restriction only that no such opinion should be so positive that no evidence could change it; (3) that the court erred in receiving the opinions of Friesner and documentary evidence upon his alleged identification thereof, and in refusing to strike such opinions and such evidence, and in improperly restricting the right to cross-examine the witness; (4) that the court erred in admitting in evidence the Morrissey letter, Government Exhibit 295; (5) that the court erred in receiving purported evidence that in 1942 Loose was allegedly in possession of unexplained funds when there was no substantial evidence of any connection between the conspiracy charged and the reception or possession of such funds; (6) that the court erred in restricting the cross-examination of the witness Travis; (7) that the court erred in receiving evidence as to contract entered into subsequent to the time appellants were barred from Wright Field and after the conclusion of the conspiracy alleged; (8) that the court erred in admitting evidence of derogatory hearsay opinions reflecting upon the character of Winebrenner; (9) that the court erred in permitting prejudicial misconduct on the part of the Government, both in cross-examination and in final argument; (10) that the court erred in charging the jury that if the conspiracy charged was shown any act pursuant thereto justified conviction, and in failing to require the jury to find that an overt act charged in the indictment was committed; (11) that the court erred in charging the jury that if the jury determined that a conspiracy had been established, all of the acts or admissions of a party thereto should be considered in determining guilt or innocence; (12) that the court erred in failing properly to define the burden of proof, the presumption of innocence and reasonable doubt, and in refusing proper requests so to do; (13) that the court erred in refusing to advise the jury that the suspension of Loose and the barring of Winebrenner from Wright Field were not to be considered as proving the propriety thereof; (14) that the court erred in severing the cause into two separate charges, the one relating to Loose and Winebrenner and the other relating to the co-defendants.

Appellants' brief contains no assignment of errors but in lieu of such assignment they have adopted by reference thereto the assignments which appear in the record. This was done pursuant to order of this court. The assignments are therefore those appearing in the printed record and reference is made in the brief to these assignments. The sufficiency of the assignments, or some of them, is challenged by the Government, particularly those going to the question of the admission or rejection of evidence. We have examined the assignments adopted in the brief by reference, relative to the rulings of the court on the admission or rejection of evidence. None of these assignments complies with the rules of this court providing that the brief shall contain "A separate and particular statement of each assignment of error * * * intended to be urged, with the record page thereof," and also providing that "If an error assigned * * * relates to the admission or exclusion of evidence, the statement shall quote the evidence referred to and the pertinent objections or exceptions taken, together with the rulings of the court thereon, giving the page of the printed record on which the quotation appears." The assignments referred to are wholly insufficient and we do not examine the record in search for error not properly designated or pointed out. Maryland Casualty Co. v. Elmira Coal Co., 8 Cir., 69 F.2d 616; Karlson v. United States, 8 Cir., 82 F.2d 330; Wagner Electric Corporation, v. Snowden, 8 Cir., 38 F.2d 599; Washburn v. Douthit, 8 Cir., 73 F.2d 23; Lahman v. Burnes Nat. Bank, 8 Cir., 20 F.2d 897. We shall therefore pretermit any consideration of the questions discussed involving the ruling of the court on the admissibility of evidence, except as the question may be pertinent to a consideration of the contention that the court erred in denying appellants' motions for directed verdicts of not guilty.

In support of their contention that the court erred in denying their motions for directed verdicts, appellants urge that there was no substantial evidence (1) of the conspiracy charged and (2) of venue. Conspiracy is an offense which must ordinarily be established, if at all, by circumstantial evidence, and the jury having found the defendants guilty we must take that view of the evidence most favorable to the Government. United States v. Manton, 2 Cir., 107 F.2d 834; Feigenbutz v. United States, 8 Cir., 65 F.2d 122; Galatas v. United States, 8 Cir., 80 F.2d 15; Ryan v. United States, 8 Cir., 99 F.2d 864; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

At the times pertinent under the indictment in this case, defendant Loose was an administrative officer in the employ of the Army Air Forces at Wright Field. He was an expert on purchase and as such advised various purchasing agents and contracting officers. Baker-Lockwood was a corporation engaged in fabricating canvas items at Kansas City, Missouri. It did a large annual business, its first war contract being received in July, 1940. 50 per cent of its war business was on contracts involved in the indictment in this case, and in 1942 over 80 per cent of its business was with the Government. Winebrenner was employed by Baker-Lockwood as its general sales manager and went to Wright Field in the fall of 1940 to solicit contracts. He was also employed during 1941 and 1942 by various other concerns. He and Loose became very close friends and the jury might reasonably have found from the evidence that by agreement between Loose and Winebrenner any award on which Baker-Lockwood was to receive the canvas work would be approved through Loose' influence, and any award on which Baker-Lockwood was not to receive the canvas work would be disapproved and obstructed by Loose; that Loose, pursuant to this agreement, never questioned the propriety of bids in which Baker-Lockwood was to receive the canvas work, while on the other hand invariably where Baker-Lockwood was not to receive the canvas work Loose did question the propriety of the bid. In 1941 and 1942, Loose, because of his experience, was able to exert a controlling influence upon the letting of contracts within his jurisdiction. In the fall of 1941, he began to associate with Winebrenner, resulting in an understanding under which the rights of the War Department were subordinated to the interests of Winebrenner and the companies represented by him so as to enable Winebrenner's...