The opinion of the court was delivered by: BYERS
The plaintiffs seeks judgment against the three defendants named, who are brothers, by reason of the violation of the section of the Surplus Property Act of 1944
later to be discussed.
The facts are not in dispute as to the transactions giving rise to the asserted cause, namely that the defendants illegally acquired certain motor trucks constituting government property, which were held for sale only to veterans of World War II. Ostensibly fifteen trucks were so sold, but the veterans, at the instance of the defendants, instead of using the trucks, transferred them to the defendants.
This was done in spite of representations by the veterans that they severally purchased the trucks to use in their own business.
The defendant Frank Guzzone fled the jurisdiction, and while named as a defendant here, process was not served upon him, whereby jurisdiction as to him has not attached.
The scheme was effected in part as the result of the bribery of certain government employees who are said to have come to trial to answer criminal charges in that connection, with the result that they were acquitted. That record is not now before the court, and the outcome is referred to in passing, for the sake of completeness of recital.
It is a related case, and has its place in an understanding of a criminal charge of conspiracy against these defendants in this court (Cr. 41998) and argument made in reference thereto on behalf of these defendants.
The date of the indictment against these defendants is January 4, 1949, and it charged a conspiracy between May 23, 1946 and January 10, 1947 on their part and other persons unknown, to accomplish the purpose briefly stated above, in violation of Title 18 U.S.C. 80; eight overt acts are therein specified.
Since this cause is entirely of statutory origin, it seems necessary to deraign the series of enactments involved, if defendants' liability is to be demonstrated.
The complaint was filed August 24, 1954 and asserts for the first cause that:
'The action arises under the Act of Congress 58 Stat. 479; and United States Code, Title 38, Section 231.'
The latter reference should be to Title 31, as is conceded.
The first reference is to what is known as the Surplus Property Act, and the second is the False Claims Act. The latter contains a criminal sanction, while the former does not; but this distinction as of the date of filing the complaint is more apparent than real, for reasons to be explained.
In its original form enacted in 1909, the criminal sanction of this Act, found in Title 18 U.S.C. 80, had to do with the effort to collect money from the United States by the use of fraudulent methods, namely, bills, receipts, etc. It remained substantially in that form until 1934 when it was amended to embrace misconduct involving willful falsification concerning 'any matter within the jurisdiction of any department or agency of the United States * * *.' (Italics supplied.)
In 1938 it was again amended but not in any respect presently material.
In 1948, the former statute was repealed and projected in an Act to be found in Title 18 U.S.C. 287, which dealt with claims for money, and Title 18 U.S.C. 1001, reading:
'Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined * * *' etc.
The original enactment is found in 58 Stat.Ch. 479 (entitled Surplus Property Act of 1944) referred to in paragraph 1 of the complaint. That statute was repealed in ...