*2 RIVES, Before TUTTLE Judges. CAMERON, Circuit RIVES, Judge. Circuit appeal aggregate This is taken from an appellee $6,- award to district court 000.00, represents which sum treble the statutory recovery $2,000.00 for each of three fraudulent acts found have by appellant pur- been committed pose for the obtaining surplus proper- certain ty United States to which he was entitled, Surplus in violation of the Property Act of amended. upon recovery appellee’s statute which reads as was based follows: “(b) Every person who shall use engage in, or or cause to be used or engaged in, agree- or enter into an ment, combination, conspiracy or engage in or use or to cause to be engaged in, any used or fraudulent scheme, trick, device, pur- or securing obtaining, pose of or or aid- obtain, secure or any payment, property, person or other benefits from the United agency Federal in con- States procurement, nection disposition proper- transfer, * * * chapter, ty under this “(1) pay shall to the United $2,000 the sum of for each States act, and double the amount of damage which the United States sustained reason there- have It was further showfi that veteran together of, Adair, by with the cost of suit virtue of his is- 489(b) U.S.C.A.,§ Title 40 sued a certificate based *3 formerly representation (1), U.S.C.A.Ap- Title 50 of the need of such vehicle use, for purchaser his 1635(b). own pendix, became the type of the same vehicle for the sum of during that, testimony reveals $1,049.00 at a War Assets Administra- veterans, 1946, appellant and three tion Swift, Texas, sale Camp held at on George Reese, and Albert William Adair May 1946; following day, that on the County Axe, of Dal- all worked May 9, 1946, appellant gave Adair a Texas; Spring las, of that that in the check in this same amount cover his application year an veteran filed each purchase, whereupon immediately Adair of- with War Assets Administration the possession delivered ap- of the truck to Texas, Worth, wherein each fice at Fort pellant subsequently conveyed and title purchase represented that he wished him without ever used the surplus for in his truck use Government any truck purpose for own, of his n own resale;1 business, for rather than represented applica- theretofore in his that, upon of such individual the basis tion priority for a certificate to author- by representations vet- the aforenamed purchase. ize his they priority erans, were issued veterans’ Similarly, reveals that veter- n certificates enabling pri- to make them Axe, by an virtue of pri- his veterans’ equipment; ority purchases of such ority certificate upon issued in reliance certificate to used his veteran Reese his representation aforesaid was allowed ton purchase two and one-half GMC purchase type the same vehicle at a Cargo $1,185.00from the for War Truck sale Camp held Livingston, at Louisiana, held, in at a sale Administration 1946, Camp Assets on March for $1,- the sum of Livingston, March, Louisi- at 139.00; that Axe also never used his accompanied ana, sale he was to which purposes, for his own May but on purpose ap- by appellant and for which paid $1,139.00 by 1946 was money provided at the pellant sale buy therefor and him, delivered the vehicle to site; never intended Reese subsequently transferring title to him use, as evidenced for his own this truck also. immediately delivered that he the fact subsequent- possession and of said vehicle sitting court, The district without a appellant. ly findings title thereto jury, credibility transferred stated its Court, favorably appellant, attach Trial little 1. Like the most this mere- is proven significance ly deficiency affecting cogency fact originals proof, of these veterans’ and one which Government’s seriously obviously urged had been de certificates could pursuant stroyed prior Further, to the trial this action. even bar of in a Congress authorizing recently de Act of as this to an criminal said records, such Government struction of United in Watson v. testimony by especially in Gov view agent, Girlinghouse, secondary ernment “The use evidence will * * * representation pro that his veteran’s if it be Justified property surplus competent posed purchase shown applica “normally agents destroyed in the own use JUs or its Government Reese, veteran, original primary in fact ad its tion”. testimony repre possession pur- his he fraudulent mitted pose intent intention to to create an excuse for sented surplus nonproduction. Riggs Tayloe, truck in his own busi its use repre 140; ness, the inclusion of Wheat. Jur., Evidence, 6 L.Ed. 20 Am. ; Wigmore veterans their Sec. 438 4 three sentation Evidence, ed., applications for certificates 3rd Sec. 1198.” seriously disputed here. Viewed conclusion therefrom oral pably above that the defendant Daniel ment the chase of tificates and to use them veterans were stance, anyone chaser testimony and to have knew truth lies to make where the sion. He erans. the an insult each each of these erans entitled to ter Appellant’s der that state of facts believe stance court “The fact “I, therefore, conclude, as a mat- [******] opinion of law defendant insufficient to things plaintiff.” quoted money already property they went with him down there when he did else this put up the to one’s sales were made to the vet- least, that were were veterans. witnesses, findings clearly erroneous, sole could that witnesses said, property. follows: Daniel knew going judgment *4 purchasers were vet- at a lower went insistence is that discover support ability in at least one purchase purchase any other conclu- money. purchased. purchase, and working I get must in the inferences in one to connect put scale than where the that these furnished these And, as I is unreported testified it; govern- judgment He almost up go pur- pur- that cer- un- got for He pal know was not authorized to pellant made. As plication application or ment’s failure or conspiracy for such he never told Reese, ment as a matter of law made testify tificate, as Reese’s assertion that he did not then time their is accept supplied money prior employment relationship and association direct dence to dentiary argument, as we understand ultimate conclusion vehicle his appe applications eligibility purchase fairly proof by Axe, appellant, negative at relies the contrary proof purchases The obvious llant,3 and the further absence Adair’s for priority certificates, veterans at the trial. supporting as veterans for such inferable applications resulting trial testimony, with and the appellant upon partial priority receiving to his the veteran his court was apparent Adair’s these veterans but was inability participation in of knowledge knowledge answer prices veteran other than from the Govern the time of their nor to ever about infer as to liability his to or at testimony from the attempt insistence, ap deficiencies in justified who did not priority substantially his involve making any made, attach appellant's purchases, the court bound of an show this evi of their in view of at tend in its been time cer cre any any ap the exonerate it, charge actually plead.2 than those for such trucks on basis less ;4 contends, effect, He since then been available his the rec otherwise have any admittedly acquisition of title devoid of direct almost immediate ord showing testimony complicity his before each vehicle ever been thereto purpose conspiracy with make for these veterans to used veteran furnishing own; misrepresentations his in either in their his act alleged complaint appellant way home, 2. him the he felt he had engaged in, used, appel- “used, “gypped”, or or caused to be and sold in, engaged agree just get or or into an rid of it. As entered lant heretofore combination, conspiracy appellant ment, noted, however, or reimbursed to use engage very day pur- trick, or in a fraudulent next after scheme Adair the Ms purpose securing truck, or for the exact cost of the device chase obtaining surplus property consisting or had ever used truck before Adair purpose of three GMG 1942 model from business of his own. trucks the United States.” judicially knows 4. This shortage bought the of trucks for civilian use 3. Adair testified that ho existed appellant’s shortly money after with Ms own ab- end World sence; II. that because the truck broke down War money as in Reese sis to which he was not then un- entitled transaction, reimbursing veteran Acknowledging der the duty Act. our purchase in the exact amount of im- his testimony under the rule to view the mediately upon delivery of vehicle light inferences therefrom in the most shortly thereafter, pur- as in the Adair prevailing favorable party below, chase; finally, inference that we think adequate support appellant either furnished the theory. the award under either Unit- See purchase,5 the Axe least that at Co., ed Cir., States Rex Trailer actually contemplated was never that Axe F.2d affirmed 350 U.S. 76 S.Ct. personal rep- 219; would make the use of it Cir., cf. Russell v. United prior application, resented as evi- 222 Certainly, F.2d 197. delivery pos- denced immediate prima sufficient to make out facie subsequent session and appellant’s transfer title of involvement in each of the truck to he could before liability respond transactions civil- any purpose use it for ly his own. In liquidated damages stat- under the view of all this and inferences ute; being and this not a criminal *5 flowing reasonably therefrom, certainly stand, his failure either to take may district court’s not set aside the testify, we show that was unable to “clearly findings Rule as erroneous.” any- even to offer excuse whatever Civ.Proc., 52(a), U.S.C.A. Fed.Rules 28 testify explanation his failure to in Furthermore, from our careful review of suspicious pe- facts and circumstances testimony, record can con- the entire culiarly knowledge, fairly within his war- scientiously no firm claim “definite and testimony, rants the inference that his has com- conviction that a mistake produced, would have been As adverse.6 justify would reversal. mitted” which appropriately in An- stated this Court Gyp- v. United United States States See 343, States, derson v. United 185 F.2d 364, 395, Co., 525, 68 sum 333 U.S. S.Ct. 346, proceeding a civil condemnation in L.Ed. 746. 92 which the an automobile for- claimant in feited been used violation pro This is not criminal internal revenue laws also failed to of the ceeding, statutory, but a civil action liquidated damages, the stand: and the take Government required prove any conspira to was controlling pertinent evi “The and cy the veterans to between and knowledge within his dence was priority file false power explain within his it was beyond doubt, a reasonable certificates circumstances connected with only required either was to adduce but yet transaction, he declined evidence of involvement in substantial testify. ‘His silence well count conspiracy, or his inducement of such against against him, misrepresentation a “fraudulent litigant.’ civil Kent v. United trick, him or device” to enable scheme 1, States, Cir., surplus 2].”7 procure [5 ba- vehicles on .J.S., d, 804; Evidence, ap- 860; positive showing p. 31 C 156 § 5. There 190, Am.Jur., Evidence, p. 193; pellant § for the Axe 20 Vol. furnished (3rd ed.), Wigmore 289, purchase, on Evidence shown that II also, 171; Commissioner, p. purchased $4,000.00 Meier v. cash- see Axe worth of Cir., just F.2d a bank 8 199 and authorities ier’s cheeks from before there cited. at a time his bank bal- when nearly ap- large, so ance was protections 7. “Constitutional pellant’s in balance that same bank was drawing presumptions of adverse from of that amount. Gov- well excess testify only [apply] failure to crim- insists that Axe used three of ernment * * * utterly It is inal cases. irrele- checks, each in amount these cashier’s proceeding to a civil such vant as the pay $500.00, for his truck. Attorney present one.” General v. Pel- 167, etc., 407, letier, 264, 134 Local v. United 240 Mass. N.E. See 54 L.Ed. 291 U.S. S.Ct. agencies, tended Again, investi- to Government two speculation.” Thomason, promote Girlinghouse undesirable gators, 222.11 objected 76 S.Ct. U.S. to as it was not the extent that hearsay, judgment is in the constituted Supreme Court As said cause. Affirmed. States, 223 U.S. v. United Diaz “So, of 250, 252, L.Ed. 500: 32 S.Ct. Judge (dissent- CAMERON, Circuit hearsay, it suffices it was the fact that ing). char- of that that when observe allegations my opinion, the objection, In acter is admitted complaint given were not sustained under natural considered recognized standard of law ad- probative it were effect as if findings of sufficient below missible.” necessarily upon hearsay, based legitimate, the Government That suspicion conjecture. speculation, insuring dis- proprietary interest surplus important to understand to vet- that this posal vehicles of its ingredient basis, an action with is whose essential in accord erans on a charge objectives fraud, policy is the and that law the announced up Act;9 appel- respect sets a different standard with Surplus Property knowledge quality required chargeable lant governs prohibition cases from policy that which and the that declared *6 against normal civil of suit. The here a veteran’s or transfer sale establishing guise rights of falls short of any a case under under non-veterans standard, agency;10 and but is essential start scheme fraudulent recognition compensable out with a has suffered fact the Government presumes damage appellant’s law fraud and under the statute dealing. of and favor honest fair vehicles in manifest Some obtained such adjectives describing policy, of used in perversion of that declared proof quality required think, of which, are collected propositions have been C.J.S., Fraud, pp. 114, seq.: duty 37 re- 427 et beyond § of further our settled Supreme has most As the view. recently “However, the courts have fre- of this in its construction held quently stated that fraud must be Trailer in the Rex Co. same statute supra: established evidence that is clear expressing convincing, prin- and ciple injury ways, saying “It obvious that in various as clearly, from the Rex distinctly, resulted that fraud must be Government Company’s pur- fully proved, charge fraudulent Trailer and or that a of precluded bona of trucks. chase fraud must be established evi- veterans, clear, posi- decreased the fide sales to dence that is clear and tive, satisfactory, motor vehicles available clear and number clear Atchison, Spiller Surplus also, Property 1944, & v. T. S. F. Act 8. See see 117, 130, 466, Co., Ry. U.S.C.A.Appendix, 40 1611(f), S.Ct. 253 U.S. Title 50 810; (Boyle) (h), (q); Id., v. Rowland St. 64 L.Ed. and and § 1625. Co., 106, 244 F. R. U.S. & S. R. Louis See, g., 10. e. United States v. Comstock 1022; 577, 108, L.Ed. Schlem 37 61 S.Ct. Mining Co., Cir., Extension 9 214 F.2d Buffalo, and Pitts Rochester mer 400, 402. 9, burgh Co., 1, 407, Ry. 205 U.S. 27 S.Ct. previously 681; This 11. Circuit so col con- and the authorities L.Ed. 51 opinion strued the statute in United 14 of the States v. in footnote lected Weaver, Judge 207 F.2d wherein it Hand United States v. Learned held “There be no Costello, Cir., can doubt af rights property United States were 76 S.Ct. 350 U.S. firmed injured alleged a result of the acts Congres- complaint [charging declaration of in the For clear similar viola- policy purpose in tions].” and enactment of sional (cid:127) satisfactory a reasonable every hy- cer- inconsistent with reasonable tainty, clear, satisfactory, pothesis of innocence. vincing, clear, cogent, and convinc- begin analysis We an of the Govern- ing, clear, cogent, reliable, by accepting ment’s evidence a statement clear, convincing, cogent, positive, majority opinion: from the satisfactory, clear, precise, “ * * * the Government was * * * positive and indubitable required prove any conspiracy * * exceptionally definite between veterans strong to file false Supreme Court went far in one so beyond certificates a reason suggest beyond reason- doubt, only required able but was able doubt.1 adduce either substantial conspiracy, involvement uniformly in such a applied This Court has general misrepre or his using, stated, inducement rule above in Unit trick, sentation City Brookhaven, 1943, 134 as a ‘fraudulent ed States v. scheme or device’ to enable him to F.2d and de the words “clear procure surplus proof”, saying, vehicles cisive Saenz v. 1949, 178 basis which Kenedy, he was not then enti F.2d 419: “Fraud tled under presumed always the Act.” never and must convincing
proven by clear and
evidence.”
inducing
Daniel was accused of
three
veterans,
Adair,
William B.
R.
Albert
conspiracy
criminal,
Most
cases are
George
Axe,
Reese,
L.
to make these
it is well to remind ourselves also that
might
false affidavits3 in order that he
disposed
require proof
courts are
convincing
of a
get the benefit of them. The Government
conspiracy
nature in
cases.
produced
witness,
Reese as a
the defend-
g. Copeland
States, Cir.,
e.
v. United
See
produced Adair,
ant
and there was no
78;
1937, 90
Rent
F.2d
v. United
competent
concerning
substantial
According
Cir.,
moved truck, they had never had versation about such matter. He knew The farthest reach of Daniel, sure whether Daniel that, prior negotiations, Daniel working county was then or not. paid purchased for this truck after it was auction, at the the truck was delivered only way by which the Court below county lot remained idle for could have conclusion that reached the months, year several and a or so later conspired Daniel Reese Adair applied Daniel to Reese for a transfer. apply preference to induce them to speculation if resort Even should be might buy certificates order that he had, the conclusion should reached trucks, only their was to decide that Carney must have Daniel told competent evidence introduced false. had a Reese certificate and asked two witnesses who testified on to finance the Daniel such a subject were Reese and Adair and premise support would lend no to the con- they positively they both swore had Daniel, clusion that whom Reese did not had no conversation with Daniel and that know, had induced Reese to obtain this they ap- Daniel did not know that *9 by filing plied a false certificate affidavit. obtained certificates. Cer- tainly there was no all evidence at tend- was, testified that he the at Adair ing Daniel with connect such con- time, employed County. Dallas He spiracy respect with Axe. made an purchase permissible wanted a truck —“I to haul is not But it that the trier gravel money reject and make some some with facts such the uncontradicted biggest part peo- unimpeaehed testimony. Certainly a like the the trying ple were to do”. He went to three turn the Government cannot its back on buy one, placed he was auctions before able had what Reese said because it Daniel, representing county, the went him on the stand and vouched him. bought story entirely of these. Adair a truck to one at The Adair told rea- May 8,1946. Camp at Austin about He- had made Swift sonable. two unsuccessful truck; trips purchase-a him was not with and did Daniel he made the
111 against necessarily he the other which purchase own funds of his out ” wrong.’ having pri- in the bank had Daniel; he all with at or conversation most, At have here purchase and displeased with buy put up Reese’s the Daniel under- county he lot where the went to having dealings car without had being purchased and trucks stood cerning that car until after it had is noth- There promptly sale. made the gave Axe and even bid in. He a check to all ing at or incredible unreasonable bought speculated it that statement. about (if, day purchase Axe truck the after its right rejected court trial truth, purchased) We with one had been testimony ignore arbitrarily concerning such explanation facts or Cir., Blair, 5 v. of Benton recent case circumstances such seq. We nothing wrong suspi- et proves 228 F.2d course generally and bought the cases there reviewed cious. Adair truck the He not day court was purchase plausi- trial after with a concluded disregard liberty explanation such ble and show- at uncontradicted “ * * ‘* conflicting ing purchase the absence to have been in com- justifying good plete circumstances or of faith. is all of com- That ’ ** * countervailing ”. petent proof. inferences in Foran like conclusion arrived at We that, And let it be if the understood Commissioner, Cir., 165 F.2d v. crippling Government labored under a de- Cir., Dunn, v. and in Smith crepitude, infer, as we are asked it entirely self-imposed. option It had the good charged Supreme furnished Court has to sue all of those Pennsylva- conspiracy, guidance in matters entered into examine Chamberlain, 1933, right R. R. Co. each of them as a witness with full nia 333, 339-340, rejection impeachment S.Ct. of testimony. of their U.S. 43(b) 819: Rule If L.Ed. F.R.C.P. it prosecute it elected belong- therefore, “We, have a case crutches because it chose to make “flesh prov- ing where of cases class to that of one fowl of another”. give equal support to each facts en inferences; frankly majority opinion inconsistent bases the of two being event, them neither of which affirmance on two crutches without which established, judgment, judgment as a matter is clear that the would not against go party upon law, permitted stand: first must crutch necessity majority of sustain- rests that the assumes that the Court whom upon accepted these inferences as hear- one of and acted below other, say before he is en- furnished the two inves- tigators; to recover. and the second crutch is titled majority “ assumes the Court be- being several inferences ‘There part, to its decision in low was led least, ap- facts from the which deducible majority presumption the equally pear, consistent conceives to be attendant failure of facts, plaintiff has those take the stand. my the defendant to Neither proposition upon maintained is, opinion, proposition sound under *10 he would be entitled to alone which facts of this case. the * * * When the evidence recover. begin with, hearsay equally either of to sustain two To the evidence tends once, objected objection propositions, neither to of was the inconsistent was and, proce- to under said have been estab- overruled established can be them legitimate necessary by proof. dures, A to ver- it was continue lished pass party objections. But bound to make in favor that dict beyond argument propositions it is clear one those because maintain 112
.on
mony
it effect we
low
tent.” And the
certain evidence with
er
regate
much the
give
Riley Doing, Cir., 1949,
sume that
of the Court on the
453-454:
ed in 5
evidence.- The
al
(e), pp.
ments,
parol evidence
This Court
opinions,
considered
[*]
ing
tent evidence
**
regarded by the trial court
appeal,
ered and all
sence
that all
court
Court did
testimony
on
“It
“In
******
gave
this Court
[*]
v.
evidence of
was harmless.
legal
its
effect,
applied,
disregarded,
C.J.S.,
general
will be
404
*»
the evidence that was
*
where the case is tried
findings.
privileged
proper
failure of
“We will
same
separately
conclusions
hearsay,
not consider
which
and it will be
et
showing
was not followed
it stated:
only proper
recognizes
based his
[incompetent]
Appeal
improper
will
among
general
assume that the court be-
seq.:
Supreme
it will be
thing when,7
presumed,
evidence was consid-
varying
jury,
extrajudicial
making
evidence,
presume
not undertake to
value or-
carbon
discuss the
In other
communications,
party
necessary
rule is thus
“If
findings
the
Court said
evidence
presumed
rule
Error,
its
176 F.2d
so,
necessary
to follow
instances,
copies,
incompetent
presumed
but will as-
the court
contrary,
writing,
findings
up by
pleader.
rule. See arising therefrom;
in mak-
comment-
probative
the
words,
the testi-
compe-
state-
rulings
the
of fact
compe-
dis-
ab-
very
stat-
1564
on
give
seg-
oth-
tri-
up
whom the burden of
ference
prima
United
which
presumption
not take the stand to
ure to
raising
994, this
absence of the adverse
lower Court because the defendant did
tion
evidence, opportunity
failed
similarly inapplicable.
some
reason behind the
Secundum9 classifies
findings
not to
based
that Costello had
to the
jection.
bative
tried before a
United States v.
a ease where a motion was
der consideration was
the case
668, 678,
strength.
defendant and was admitted without ob-
knowledge not constitute affirmative does Any unfavorable fact. opponent un- drawn inference persuasive ‘is
der such circumstances probative’.”
rather than presumption
If invoked the ma- yield
jority place has here it would indulged by presumption the law fair.12 That
that men are honest and only by
presumption be overcome
clear, explicit proof. This and decisive proof. no contains
record competent proof
tains at all to sustain contentions. The Gov- Government’s citi- inflicted on one of its
ernment has language fine,whatever nice zens a severe
may be used in the endeavor to make it offensive, and has branded him seem less unwilling a cheat. I am
as a fraud and flimsy showing. to do on so There-
fore, I dissent.
Rehearing denied; CAMERON, Cir- dissenting. Judge,
cuit 290, p. supple Wigmore, 11. 2 Par. Gratz, supra. added to the mented by statement text Provost v. p. poeket supplement,