Ernest King Bramblett v. United States
231 F.2d 489
D.C. Cir.
1956
Check Treatment

*1 MILLER, Before WILBUR K. BAZE- FAHY, Judges. LON and Circuit Judge. FAHY, Circuit Judge, Bazelon, Circuit dissented. Appellant, whom we shall hereinafter defendant, refer to was convicted un der each of seven counts of an indictment charging violations of 18 U.S.C. (1948)1 appeal 62 Stat. 749 On up by any sifies, trick, follows: “Who or 1. This statute reads as conceals covers jurisdic ever, any scheme, fact, matter within the or device material or false, willfully any fal fictitious or makes any department agency representations, or statements makes *2 principal pros States, namely, contention is that the Dis-r aforementioned hi? bursing Represen- ecution was barred Office the House of tatives, applicable. statute of limitations then the defendant and did wilfully falsify by See 18 U.S.C. 62 Stat. a scheme a material (1948). by continuing in full and effect force up including 30,. 1950, to and June , history case is set of the The earlier designation contained in said document. part in United forth considerable The material fact falsified Bramblett, alleged rep- is in the first count to be the The District L.Ed. 594. Margaret resentation that M. granted Court, F.Supp. had during June, 1950, was a clerk to defend- judgment on the the motion in arrest discharge ant of his official duties Disbursing ory of the Office that compensation and entitled to receive Representatives not a “de was House of remaining such. Each of the six counts agency partment the United allegations, except contains similar meaning of U.S.C. within the States” given a different month is for the con- See note § 1001. tinuing desig- in force and effect of the disagreed reversed, after and nation, and for the material fact falsified District Court sentenced which the by the July, scheme. These months are appeal present was and the defendant August, September, October, November taken to this court.2 and December of 1950. now material3 the indict- Insofar as proof dispute. not in is In sub- charges did know- that defendant ment it stance was wilfully falsify ingly a scheme a and throughout made remained the times then The indictment ex- material fact. alleged, Margaret and that. M. Swanson plains al- this was done. Certain how specified received each of the months legations count. are common each payments desig- called for under the accomplish the scheme that to These are representing pay- nation. The checks August 27, 1949, on or about defendant deposited joint ments in a account Congress, presented as a member Periodically of herself and her husband. Disbursing of the Office House the husband turned over to defendant Washington Representatives in a Clerk- Margaret paid to amount thus M. Swan- August 27, dated Hire Allowance .form paid son. Defendant the husband an September 1, J.949, to take effect equal amount to the increased income tax designated Margaret in which he M. of the Swansons. plerk Swanson to be a to him the dis- n respect The contention with feharge representative of his official and entitling duties, thereby is that her to receive complete August was on compensation or about rate of at the basic $4700 27,1949, made, when the per annum; was and that the defendant’s years and that this was more than purpose three in the scheme was to convert to prior indictment, compensation which was re his own use the authorized on Margaret turned June 1953. paid . Defendant this -form to be M.” argues designation, assuming alleges it The first count ad- Swanson. false, falsification dition that on or about June when made and jurisdiction falsification, was the in a matter within the because, said, allegation it is there is no department agency of the United Appellant given suspended any 2. writing sen- or uses false or document false, months, from knowing any tence of four twelve the same contain to. placed $5,000, probation fined or fraudulent statement fictitious or en year. $10,000 try, be. fined not more than shall imprisoned years, not more than five ór At the direction of the District Court acquitted appellant was on certain or both.” us. not before tinuing repeat-' in order falsification represen- any subsequent or evidence edly partake of the' fruits of the Swan- as to Mrs. the defendant tation scheme, of' fairly terms argued within the falls From this son’s status. ' section falsi- *3 of was convicted when defendant fying necessity con- of status he was her urges Defendant that the Govern falsely representing in only victed of theory ment’s an offense was com that prior years the 1949, to more than three specified mitted each of seven months the indictment, clerk. she was his that in to an the seven counts leads untenable offense, postulate, namely, separate that a accept of this view unable to We are was committed each moment after the. it in- the As we understand the case. however, end, form was charge this, filed. In the merely mak- the does not dictment help defendant, sure, contention does ing not To be the of false statement. a postulate not, charge. the alternative to this See statute would cover such a single it, speci- defendant have would that a 1 indictment note But this portion crime was when the form of of a different fies a violation August 27, 1949, alleges was filed on about It that defendant the statute. but that defendant’s “falsify by course of conduct a fact” a scheme material did single continuing constituted a by wilfully offense which contin and the December, portion ued into peri- designation 1950. of effect into incorrect upon the years statute which the indictment ods three before the date less than Congres we think rests does reveal material fact a of the indictment. The pattern sional to intent reach of is said the in- a con falsified penalize duct representa- rather than to of defendant’s series dictment pattern. acts which manifest the his clerk In con tion that Mrs. struing a in the several counts criminal statute doubts the times stated should at in favor entitled receive be resolved of a was then construction and that she subjecting allegations that compensation. The factual avoids an offender to mul tiple undisputed proof single the convictions reason sustained of a continuing pattern though A unified of referred. behavior we have even which period thus the behavior continues of falsification scheme is over a crime charged period proved, and the time. See United and States v. Universal C. begin Corp., 218, not to run until I. T. Credit 227, did U.S. limitations See, also, Snow, did not occur when 97 L.Ed. 260. This In re scheme ended. August 274, 27, 556, ; was filed on U.S. S.Ct. may Kissel, 601, that assume some crime v. 218 U.S. We 607-608, complet- 124, 1168; was then S.Ct. in the L.Ed. defined Licari, period ed, State be- Conn. and that A.2d 450; against Kirchheimer, Act, crime. gan that But not “The to run the Offense Jeopardy,” particular this Double Yale so of L.J. 540, and Absolving cases there cited. indictment. multiple offenses, however, defendant of comparable a situation here haveWe entirely. him does absolve We con conspiracies in the sense that to some statute, applied period strue the over a continued facts scheme case, support conspiracies of this an time, often do. Of course indictment of single charged; only conspiracy for a defendant no one which con there great- But we see tinued until ber, scheme no ended in indicted. person is Decem And the legal an indictment that obstacle based the indict er charges person instead seven one ment offenses does on require conspiracy reversal. on than problem dealt with a similar Defendant’s conduct in one. than Braver more States, man v. United with the lodging Dis- falsifying Office, L.Ed. 23. bursing There thus material the indict leaving file, thereby ment in each of con- several counts fact, separate conspiracy a ory crime of on the the- period by within the continu- objects ously extending Bridges criminal different the benefits single agreement- gave separate citizenship; rise but in the at bar case only simply crimes. placed The Court concluded that it is not that reliance was conspiracy notwithstanding upon existed the falsification within limita- objects period its various therefore tions but that itself convictions on period. each of the several continued into that Fiswick v. erroneous. But did not United the Court grant jury set aside the merely action of L.Ed. held a con- simply spiracy a new trial. remanded continues until final *4 resentencing, punishment pursuance overt so that act in the of it. Here the could be reduced conduct to come within that al- of defendant which constituted single the lowable for conviction of a con- scheme did not terminate until the spiracy. theory scheme of the case seems itself ended. The cases of Unit- guilty ed Gottfried, to that several Cir., be verdicts of States v. 2 F.2d 165 charging 360, separate 860, crimes certiorari con- denied 333 U.S. 68 only 738, comprised which in 1139; duct S.Ct. 92 L.Ed. United States crime, guilty Anzalone, Cir., v. 714, amounted to a 3 verdict of 197 F.2d theory equal- of ly applicable Butzman States, Cir., that one This is v. crime. United 6 205 343, F.2d 828, here. But since sen- certiorari denied 346 U.S. tence, Braverman, 50, 353, may unlike that in is well 74 98 S.Ct. L.Ed. stand for proposition within the maximum which could have the that a criminal act which imposed single legislative for of transitory been a violation definition is statute, and since all the counts deal period nature cannot be extended over a closely simply a factual with tion, interrelated situa- of time because its effects contin- resentencing ue, they no remand for is re- but are irrelevant to this case quired.4 where statute allows the criminal act continuing to be quite apart a each of the cases have examined We from the duration of its And effects. we upon counsel for defendant. relied They think Irvine, United States v. 98 U.S. cogency with add to his contention 450, 193, which, Marzani, L.Ed. with respect limitations. to the statute of heavily upon by defendant, is most relied control- we believe none is Nevertheless ling general falls into same class of distinguishable. cases. For ex- and each is merely Court States, There the construed a stat- ample, in Marzani v. United condemning wrongful 133, 78, ute U.S.App.D.C. 168 F.2d affirmed withhold- ing pension sup- 895, 299, 431, of a as not intended 93 L.Ed. to 69 S.Ct. U.S. making port continuing charged an indictment indictment Here, falsifying however, withhold it. representations, not a the statu- false tory terms different. falsi- The Irvine scheme. de- When a cision is inconsistent with our made the con- fications struing Bridges the statute complete. before us In United v. include 209, 1055, within terms a States, 346 U.S. 73 S.Ct. operative period a 1557, over was for the indictment a time. That L.Ed. punished making can of, such conduct be make, consistent- and the conspiracy to ly policy pro- with the beneficent a naturalization statutes statement false years prior we think ceeding than three indicated more Hyde may States, such cases as v. United be said indictment. 347, 367-370, upon 793, the statement U.S. S.Ct. relied 56 L.Ed. States United disposed Assuming would not we have a discretion do so in pur- request absence of from limited remand defendant. reverse may by permitting peti- If advised he the District so motion pose States, request prior resentence, -make such a tion Nelms v. United cf. to is- 267, 678, U.S.App.D.C. our mandate. we suance F.2d ing conspiring the United to defraud Kissel, 218 U.S. v. 1114; States United awith 124, States. Instead he 54 L.Ed. 607-608, under U.S. Elliott, “falsification scheme” U.S. v. and Brown commonly (1952),3 known C. § all 812, 56 L.Ed. 400-401, statute. Pendergast the false statements v. United referred 419-420, States, predecessor 317 U.S. reached Because a * dicta, where, con- only papers presented in connec “false discussed against tinuous the Govern tion with a claim Bray- See, also, constituting crime. ment,” falsi enacted to reach 1001 was States, pecuniary United erman loss v. no fications which involved papers in such as to the United defendant’s also considered have We illegal transporta namely, to conceal the tended contention, other v. Margaret “hot oil.” M. 503, 507, Bramblett, 1955, another, 75 S. clerk, succeed” his “to “to be” 504, 507, also compensation, 99 L.Ed. 594. See Ct. “to receive” stated Gilliland, 1941, Sep- take effect” “to said *5 86, 93-95, 85 L.Ed. 1,1949, representations con- 61 S.Ct. tember sug Nothing history legislative cerning facts, in the therefore not future gests charge intended was also proper falsifi- that that section for a basis reaching an for made of the serve as alternative In use view the cation. conspiracy to think this the offense of after it was filed we form I think defraud United States. Yet is not meritorious. contention majority here employs section Affirmed. purpose. for such Judge (dissent- BAZELON, Circuit my view, here In ing). purposes was of the stat- engaged was ute of when Bramblett filed that Bramblett clear designation conspiracy in of Mrs. Swanson. defraud What under 18 286 or 371 made the false when he filed U.S.C. §§ begun conspiracy per- (1952); was the scheme that she would Mrs. form his false services as his clerk. The Swan clerk; reaped his he the fruits of the son as and that an overt act thereafter evidencing conspiracy “by falsification scheme” occurred each achieved [this] accepted salary does not that offense a con- time she check. But convert into tinuing Bramblett was with defraud one.4 amended, year period began (1909), to run from the date 35 Stat. 1095 misrepresentation (1918), (1934), of an initial Stat. 48 Stat. court, (1938), (1948). Stat. 62 Stat. was not extended “continu- concealing cooperation ous amended, (1909), 2. 35 Stat. 1096 completion” until the distribution (1944), (1948). Stat. 752 62 Stat. 701 gotten Id., gains. page ill at page amended, 3. 48 at In Stat. 996 the Court’s view, charge (1948). Stat. 749 if the were of broader “sweep” contempt issue, at than the e. * Report Cong., Senate No. 73d 2d “ ‘corruptly’ g., obstructing or con- Sess. and 48 Stat. 996. spiring ‘the to obstruct due administra- ” justice,’ would such a fraudu- 4. is not too unlike situation Pendergast States, 1943, v. United lent have constituted a Id., page offense. U.S. at involving begun by page analogy, at 271. On the same beyond a falsification I think the offense falsification statutory scope, but limit consummated within scheme is restricted lacks sweep conspiracy charge it. Court held that where which charge contempt appellant’s for misbehavior would embrace conduct with- presence statutory period. court, in the of the three-