The opinion of the court was delivered by: BYERS
On December 23, 1935, these defendants pleaded guilty to count 6 of an indictment containing 18 counts, and, upon the acceptance thereof, they were sentenced to serve 6 months and 3 months, respectively.
Three days thereafter, they filed a petition for a writ of habeas corpus, which was issued. Upon the return thereof, argument was adjourned pending the filing of briefs on January 6th.
Simultaneously with the filing of the petition, the defendants procured an order directing the governsment to show cause on December 31, 1935, why an order should not be made, revoking the sentences and the pleas, and dismissing the indictment, and permittsing the defendants to withdraw their pleas and stand trial. That motion was submitted, and decision reserved pending the filing of briefs.
Apparently only the writ is now sought to be sustained, if the brief filed for the defendants is correctly understood.
The motion for leave to withdraw the pleas was not made before the imposition of sentence, and is therefore denied (rule II, paragraph 4, U.S. Supreme Court Rules, etc., in Criminal Cases, 28 U.S.C.A. following section 723a, effective September 1, 1934).
The argument advanced to sustain the writ is that the court was without jurisdiction to entertain the cause. This is said to be so because the statute under which count 6 of the indictment is laid, does not apply to these defendants. The said statute (Cr.Code, § 35) was amended June 18, 1934 (18 U.S.C.A. § 80), and its presently material language is as follows:
"or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or 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, in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
In the count of the indictment in question, the defendants were charged with a violation of the foregoing statute, in that on August 9, 1934, "they knowingly and wilfully made and caused to be made a false bill, voucher, account and affidavit knowing the same to contain a fraudulent statement in the matter of the demolition of buildings and construction of the Triborough Bridge, Contract No. 12 of the said project, a matter within the jurisdiction of the Federal Emergency Administration of Public Works, a Department of the United States, by virtue of the provisions of Title II of the National Industrial Recovery Act [section 201 et seq. (40 U.S.C.A. § 401 et seq.)], and the Rules prescribed by the President pursuant thereto, and a financing and loan agreement entered into for the construction of the said Triborough project between the said Federal Emergency Administration of Public Works, and the Triborough Bridge Authority, pursuant to the said statute and rules * * *."
That which follows points out with particularity the respects in which the bill, voucher and account were false and fraudulent, in designated payroll matters.
The argument for the defendants is that these allegations do not render the said statute applicable because the defendants were operating under a contract with Triborough Bridge Authority, and that the certification concerning payrolls did not involve "any matter within the jurisdiction of any department or agency of the United States."
The contract has been examined as though it were before the court, and probably the reference to it in the indictment is a sufficient justification for so doing. If it be thought otherwise, all that can be said is that in no other way could the court follow the argument made for and against the writ, and both sides have apparently assumed that the contract is before the court.
The document discloses that neither the United States nor any agency thereof, is a party to it; however, paragraph (VV) reads: "This contract shall not be effective until approved by the Resident Project Engineer." That official, according to paragraph B, is thus described: "Whenever the words 'Resident Project Engineer' or 'Resident Project Auditor's are used in this contract or the accompanying specifications, they refer to and designate respectively the Resident Project Engineer and the Resident Project Auditor appointed by the United States Government pursuant to a certain Loan Agreement hereinafter referred to in Section (FF)."
The latter paragraph makes it clear that the contractor's compensation is payable out of funds procurable from the United States, pursuant to Title II of ...