James W. Harlow, Charles E. Wilson and Thomas F. Addy v. United States
301 F.2d 361
5th Cir.
1962
Check Treatment

*1 in in one to the other is a and of day place business of business there, itself, question up and thus of remote- partner work to take he was taxpayer properly was ness concededly Court.2 before the Tax at the time engaged avocation. or his vocation in The Tax Court held that it could ordinarily require affirm expenses This not find rectly would di here escape these mandate of prox but to ance connected with or that urged imately that the combina it is authorities resulted from the business of tax jobs payer, business constitutes a tion here too remote following itself, then activity in and from business to be con expenses qualified deductions. ordinary as necessary sidered either ex authority position penses carrying cited for this in on a business within Ruling 55-109, meaning Cum. 162(a). findings 1955-1 Revenue of § These construing 23(a) (1) (A) being clearly Bull, erroneous, and no error 1939, predecessor appearing, judgment Code of in the Revenue law 162(a), to authorize members section Tax non-deductibility Court of must be Components Armed of Reserve and is one-way transpor deduct local Forces to Affirmed. getting expenses place in tation from a employment place drill where trip place day. takes on the same treating This conclusion is reached

service the Armed Forces Reserve as business, a trade or this service regular employment constituting as both part business, aof trade or and local HARLOW, James W. Charles E. transportation expenses getting Addy, and Thomas F. Appellants, place employment other ordinary necessary expenses incurred carrying UNITED the combined trade or STATES of America, Appellee. breath, business.2 In the same Com recognized missioner transporta No. that the expenses going tion place from one Appeals States Court of employment to the other are not in Fifth Circuit. discharging curred in job the duties of either April 4, 1962. carrying or in on the business of ei Rehearing April 30, 1962. Denied employer; employer ther here and self- employed. Assuming, deciding, without Ruling basis, this has sufficient we take mean, question it to as it bears us, positions before that both do con part stitute trade business but outstanding question leaves expenses ordinary whether the here were necessary part, employ to either partnership. ment or the We hold that commuting

it does not mean that Appellants do not contend case, except the ex- the fact that Ander- penses transportation taxpayer here are local son, ex- here unlike who was penses meaning ruling. within the of this commuting simply from one business other, engaged carrying on one Appellants rely also to some extent on when the accident oc- Commissioner, Cir., his businesses Anderson v. 81 F.2d 104 A.L.R. a similar curred.

Trueheart, McMillan, Russell & West- brook, Antonio, San Tex., appellant for James W. Harlow. Gillespie James R. Lacy, and Glenn B. Antonio, San Tex., appellant for Charles E. Wilson. Westbrook, Joel W. San Antonio, Tex. (appointed by Court), for Addy. Thomas F. Wine, Russell B. Atty., U. S. San An- tonio, Tex., Wm. Paisley, A. J. Frank Cunningham, Attys., Dept, of Justice Washington, C., appellee. D. TUTTLE, Before Judge, Chief and RIVES WISDOM, Judges. Circuit

TUTTLE, Judge. Chief appellants The three are former civil- employees European Exchange

ian System (EES) which was established operate including facilities, various military Exchanges, Post the well-known benefit of United States service- personnel men and other authorized sta- Europe. tioned have persons, cor- relat- EES from firms and offenses convicted of certain been porations, bribes, kickbacks, alleged participa- com- ing generally involving solicita- missions or otherwise. tion a scheme kickbacks receipt of bribes tion and concerning its “Three: Of and EES. from certain vendors to right conscientious, faithful returned The indictment was services, decisions, honest actions first April performances of its of the duties conspiring count them with EES, in said free per amongst “other and with themselves corruption, partiality, improper in- grand jury to de unknown” sons dishonesty, fluence and and from in violation fraud the United acceptance solicitation or 18 U.S.C.A. 371:2 things said em- value ployees persons, corporations, concerning its “One: Of and engaged selling en- firms affairs, rights to the business have deavoring to and oth- sell foodstuffs functions, said activities and *5 merchandise, prop- products er Exchange System, European honest- erty to the said EES.” administered, ly efficiently ex- performed, free ercised and The second and third of the in- counts obstruction, impairment, or unlawful charged appellant dictment the corruption, between and collusion soliciting bribes on two occasions per- agency employees of said McLane, representative from Robert T. a seeking products sons to sell food selling EES, of firms in violation agen- and other merchandise to said of 18 U.S.C.A. 202.3 four Counts § cy. through charged nine the Har- receiving low with bribes from Robert T. concerning its “Two: Of and Emborg (also rep- McLane and Henrik right pur- the to contracts for have suppliers EES), resentative of the mer- chase of and other foodstuffs violation of 18 U.S.C.A. 202. § chandise, by which into were entered EES, awarded in accordance were convicted as procedures 16, 1960, the established and in an June in the United manner, honest and businesslike free District Court for the Western Texas, acceptance from the District of solicitation and San Antonio Division. Judgments money by employees of of said were entered and sentences person acting 1. The indictment also named Paul officer or for or on behalf of Congress, any co-conspirator, Port as a either House of but Port died or of com- prior House, of the trial. mittee either or of both Houses asks, thereof, accepts, any or receives mon- Conspiracy 2. “§ 371. to commit offense any check, ey, order, contract, promise, or or to defraud United States. undertaking, obligation, gratuity, or se- persons conspire “If two or more ei- curity payment money, for the of or for any against ther to commit offense delivery conveyance anything or States, or to defraud the United value, with intent to have his decision or States, any agency any or man- thereof any question, matter, cause, action on any purpose, ner or for and one or more proceeding may any or which at time be persons any of such do act to effect the may by ponding, brought or which law be object conspiracy, each shall be capacity, him in his before official or ih $10,000 imprisoned fined not more than or place profit, of trust his or influenced years, not more than five or both.” thereby, shall fined not than more three 371. § U.S.C.A. times the amount of such or value Acceptance imprisoned by thing “§ or solicitation or not more of- of such than person. years, both, or ficer other or and shall forfeit three his “Whoever, place disqualified being employee an or and be officer or office person acting any honor, trust, of, holding profit office of or or on behalf of capaci- the United official under the United States.” 18 U.S.C.A. ty, authority under or virtue of the agency thereof, any department or an ap- delay bringing imposed February unwarranted case 1961. This argument peal to trial.” here is that followed. information Government sufficient discussing numerous Before try appellants as far back as appel- urged by the varied contentions the failure Government briefly lants, to describe it would be well bring June, them to trial until the Gov- corruption scheme prejudiced their various defense because attempted establish. ernment might witnesses have and records which Food and Harlow was Chief aided their unavailable defense became Germany. Services Branch of the EES during delay. year find the seven authority possessed capacity In this he merit in this claim. negotiate purchase of various for the supplies EES from and services It well established that throughout Appellant Europe. vendors right guaranteed speedy to a trial assistant; appel- Wilson was Harlow’s implemented Sixth Amendment and Addy of Secur- lant was the EES Chief 48(b) Rule Rules of Crim Federal ity. Very simply, the Government Procedure, inal does U.S.C.A.4 sought prove appellants and prosecution arise until institut after EES, other civilian Any delay ed occur the accused. organization,” collectively known ring between offense commission pay them for induced certain vendors prosecution is con commencement of doing privilege with the business exclusively by applicable trolled Stat *6 paid EES. rewarded Those who were Hoopengarner ute of Limitations. v. EES; supply those with contracts to the States, Cir., 6 United 270 F.2d 465. action who did not less favorable received case, proceedings the instant criminal payments were on their bids. Bribe against formally ap were initiated the allegedly to the members of channelled pellants when the re indictment was organization” through “the num- certain against April 19, turned them on organ- bered bank accounts which Since the indictment was returned with ization” had established with various statutory period,5 in the the allowable banks This lucrative in Switzerland. delay might only appellants of which supposed scheme is to continued have delay complain the date between is through 1953, from 1950 at time April the indictment was returned e. [i. organization” exposed “the illegal and 19,1957] they brought the date and were brought operations a halt to 6, to trial e. June [i. I960]. the authorities. why ap are There two reasons pressed The first contention the pellants cannot succeed in their claim is that the trial court abused speedy were denied a trial. refusing its discretion in to the First, dismiss delay we do not think that ground indictment on the “unnecessary” that the Gov- could characterized as ability “prejudiced appellants’ ernment April, 1957, or “unreasonable.” Prior to prepare up to for trial April, deliberate and 1959, and to about Govern- 4. Rule have continued filing the court formation delay overt acts ant who has been held to answer senting the indictment was district “If conspiracy there 48(b) an information court, [*] bringing may is [*] provides: furtherance complaint.” or if unnecessary dismiss the through * stated to a alleged there is defendant a against grand indictment count one of delay unnecessary and various jury a defend- proven eonspira- to in to the or in trial, pre- in- to were alleged fenses 1952. The five mitted dictment the offenses committed stated therefore, committed cy were years. alleged in counts four stated and between alleged returned timely. in 18 period charged in proven 1953. The substantive of- and in U.S.C.A. § 1953, and counts June proven of limitations proven to April 19, through and the offenses the indictment have two and three 3282. The in- to have been to have been been com- November, 1957, nine for all were was, vigor making been dismissed on that it was fide a bona ment was argu- “vague about too This gather and indefinite.” information ous effort to ment in- accounts likewise without merit. These accounts. Swiss bank alleged ap- dictment, charged substance, con played primary in the role concerning pellants conspiring with “others” with spiracy, and information right defraud the of its important United necessarily them was Exchanges European appellants. have its Post by case Government’s agreeing honestly ulti effort administered Though Government’s Emborg McLane, un fruitless, receive mately proved due bribes respect “and others” sale willingness authorities Swiss bank foodstuffs and “other merchandise” divulge about information gist vendors to EES. The accounts, mean not does this argument appellants’ here trying evidence is that spent obtain time unnecessary specified the unreason should indictment have constituted conspirators,” Foley and “other delay. “other ven- v. able See Appellants dors” and Cir., the “other merchandise.” We 8 arraigned 290 F.2d 562. specificity do re- the Government think such soon after concerning quired. provided appel- The indictment the information learned that adequate pre- be forth lants information to the bank accounts would coming. trial, gen- pare their defense. It outlined time until From that appel year, scope conspiracy eral period about one discovery part motions. it was lants made various agents therefore, delay, resulted would cause vendors later This now actions, supplying cannot vendors who were merchan- their own unnecessary un pay dise to the into num- complain that it was Lustman, bank bered accounts in Switzerland reasonable. appellants. Cir., denied the benefit cert. Numerous 258 F.2d 3 L.Ed.2d overt acts in furtherance of the con- U.S. S.Ct. spiracy particu- A detailed. bill of *7 delay Furthermore, the if even voluntarily lars submitted the Gov- unreasonable, appellants be would (1) set ernment Emborg forth that McLane and it, complain of since position no to agents the were of vendors'al- It is an earlier trial. never demanded leged pay to have been induced to bribe would undisputed Government that money; (2) the numbers the numbered gone prior to trial and could have have accounts; (3) bank name loca- and appellants so June, 1960, had if the to banks; (4) tion of the the dates and continuing un requested, despite the money paid; (5) amounts so the names regarding availability information represented and addresses of the vendors appellants accounts. But bank the Swiss Emborg type and the of foodstuffs delay complained of the until never (6) them; sold the manner which to dismiss when motions their made appellants caused the bribe to The settled trial arrived. time accounts; deposited in the numbered that, under is the federal courts rule in (7) represented by and the vendors Mc- circumstances, appellants .such Moreover, Lane. since the Government challenge legal right to waived attempt prove did not to transactions bring delay ity Government’s agents of with vendors or vendors other ing Lust- trial. United States v. them to Emborg and than McLane or transac- man, supra. relative to the sale of tions merchandise foodstuffs,6 apparent than it other is appellants next contend The seriously appellants preju- conspiracy were should have that count that Addy’s appellant significant exception tempt par- to establish to this There one conspiracy, ticipation in the below will be discussed statement -which with Government’s at- in connection soliciting pect EES diced reference the indictment’s receiving bribes from and vendors to the merchan- “other vendors” and “other July, appellant In or about dise.” The EES. Addy failure of the Government any conspirators” suspected complicity “other call “other was first appel- bribery vendors” as witnesses scheme. order to ex In negatived pose similarly any scheme, lants chance this it was that two decided short, prejudice namely, Stewart, appellants. agents, Bray In and serious though conspira- attempt way would references to “other to work their into organization” tors,” through Addy. Bray “other “other mer- “the vendors” and may Addy approached chandise” have the indict- and attempted rendered Stewart thus and vague uncertain, possi ment we somewhat and interest him in the bility deprive taking are satisfied that this did bribes from vendors right.7 appellants Bray substantial the EES. and Stewart testified Addy along sugges went with their Addy’s We now reach con- arrangements made tions tention that there was insufficient evi- whereby Bray, and carried out Stewart jury’s support dence to verdict that Addy engaged in the solicitation and participant conspiracy was a he in the receipt of bribes from various vendors. charged in indictment. count transactions, however, None of these in apparently conceded Government Harlow, volved Wilson on the that the indictment insufficient would be hand, Emborg or McLane and on the merely appellant Addy if as to the it other; and, although testimony of per- conspiring him with with Bray Addy and Stewart indicates that other than sons organization” was aware of activities, “the bribes from Harlow solicit receive competent is no testi there agents vendors or other than vendors mony showing Addy was in fact a Emborg. words, McLane and other only organization.” member Government the sub- admits testimony point evidence is the charge against Addy stance of the McLane effect Harlow participant conspiracy he Wilson told him various occasions whereby involving Wilson, Addy organiza was a member of “the agreed to defraud the hearsay obviously tion.” But this was by receiving bribes from Addy, incompetent as to and was Emborg. Thus, if McLane and there is Addy link main linking Addy competent evidence charged in count one of the indictment. appellants, the activities other *8 Cir., States, Montford v. United Addy’s conviction must be overturned. most, F.2d 759. At Government es competent think there is no We such separate tablished the two existence of evidence. involving conspiracies, one Harlow and 1951, high possibly others, time

Some in Wilson and and the other began involving Addy, in the Bray.8 est authorities to sus and Stewart dispose produce should 7. This discussion also of trial court’s order that it all doc- possession that the contentions the trial court erred in uments which it had re- refusing permit appellants Emborg. in to to from McLane and ceived The jury’s grand substantially complied minutes examine and in Government compel refusing to the Government this order. The documents which were particulars. produced bill significance a second of submit The were not such of particu- and of non-production, indictment itself the bill to make their and' voluntarily consequent inability submitted lars Govern- of coun- defense appellants provided adequate ment trial, ground' sel to examine them before a information conduct their defense. We reversing appellants’ convictions. opinion also of the are seriously prejudiced by the Gov- of Because the view which we take of apparent produce case, unnecessary ernment’s failure is to consider appellant Addy documents accordance with certain whether could successful- Texas; (2) on attempted es the Western District the Government Since ground that, his as civilian guilt Addy’s basis on the tablish EES, they conspiracy of the (3) do not come within participation in assumed purview 202; and of 18 U.S.C.A. Wilson, § it would Harlow with manifestly unjust ground Addy’s on the insufficient con there was permit justify evidence to submission of the it was to stand on viction proved Bray question guilt jury. to a conspired with had he think all must fail. true these contentions Especially is this and Stewart. light fact when considered (1) sought Government particulars bill the indictment lay venue this case in the Western out haziest even the failed disclose District of under 18 U.S.C.A. Texas Addy, conspiracy between of a lines 3238. That section reads as follows: receive Bray solicit Stewart 3238. Offenses not “§ committed McLane than other bribes vendors district. therefore, conclude, Emborg. We begun trial of “The all offenses Addy’s appellant should conviction high upon seas, committed of evidence. for lack be reversed jurisdiction elsewhere out Assuming of two the existence any particular district, State or shall separate conspiracies, be in the district where the offender requires tous that this and Wilson claim found, or into which he is first be fatal variance there hold that brought.” proof, con showed two tween the which alleged Each of the substantive counts indictment, spiracies, that the offenses were committed out of charged only conspiracy. But this jurisdiction any particular state already held that: Court has appellants, or district and that the since conspiracy was “If more than one offenses, the commission of the had re- proved, least one of which at and, turned to the United States on the guilty, clear that it is indictment, date of the return of the affecting his no variance there was were found in the Western District of Jolley rights.” substantial Appellants contend, Texas.9 however, 5 Cir. 232 F.2d offenses that the were not committed out of Harlow’s and Wilson’s evidence jurisdiction “any particular participation in the main district”; state or claim that overwhelming. Thus, variance, if territory occupied by the United States any, could not “affect substantial [their] Germany governed by the United rights.” High Germany Commissioner States Appellants Harlow and Wilson contend meaning was a “district” within the that the substantive counts of the indict Section the former United (i. through nine) ment e. counts two Court of the Allied Commis- charging them with violations of 18 U.S. Germany jurisdiction sion of over *9 202 C.A. should have been dismissed “district,” the offenses (1) ground on the that was im venue were committed within this “district.” properly They laid the District Court for High conclude from this that the ly “entrapped” counts, contend that he was into expressly however, These allege did Bray the money, Stewart. that the bribe at Harlow’s request, deposited in a certain num- Appellant contends that the al- bank bered account in Switzerland. We legations through of counts five nine were think this was sufficient to establish that not sufficient establish venue the involving “receipt” offenses the the of District of Western Texas under Sec- bribe were committed in Switzer- specific tion there 3238 because was no land, is, course, ju- -which of “out of allegation charged that the offenses there- any particular jurisdiction risdiction of state were committed “out of the or dis- any particular of or state district.” trict.” 370 juris- District of Texas under 18 U.S.C.A. § had exclusive Court Commission offenses try them for the diction

charged indictment. in the (2) 202, in 18 sub- U.S.C.A. § any stance, “em- makes it a crime for agree. Sec Since cannot We of, acting ployee person or on be- or subject of infre been 3238 tion has half of official the United prece litigation, is scant there quent capacity, by au- under of the or virtue resolving issue guide inus dent agency thority any department or argument. That by appellants’ raised Ap- thereof” to solicit receive bribes. or stated, the Ger issue, simply is whether pellants that a Harlow and Wilson claim juris territory occupied under man employee an civilian of EES is neither High Court Commission of the diction “employee of” nor a the United States meaning of “district” within awas acting “person for or on behalf of the not. it was thinkWe Section States,” United so as to come within governed territory view, In our prohibitions think 202. We of Section under not a “district” is otherwise. having ju court unless the 3238 Section argument regard Appellants’ is in this territory invested over risdiction facts; first, that bottomed on two employment ordinary power dis same spe- contracts with EES try such made offenses trict courts cifically employee stated an EES Congress. cannot believe laws a Federal em- “not considered Congress preclude dis meant to ployee,” second, non- is a exercising jurisdiction trict courts activity, appropriated funds the em- against laws of the an offense over ployees which, under 5 U.S.C.A. § simply the acts because United States constituting 150k, employees are not “considered as offense committed purpose of the United any for the States jurisdiction of a the territorial within military laws administered the Civil Serv- quasi-military tribunal de provisions or the ice Commission authority riving United Compensation Employees’ Federal Act.” having power Government, but States Though appel- an punish acts as offense there is doubt that the those lants, employees, United States. as EES could be con- the laws Newth, Cir., 149 F. 302. The federal 9 sidered meaning within the v. High Section we are neverthe- Court did not have Commission try appellants convinced that jurisdiction less were at least for violat acting though “persons ing U.S.C.A., for or on behalf of 18 Section purview punish United States” within the power them if their it had the transgressed Company that statute. Standard Oil the laws of the Allied acts Johnson, High California or the laws of oc U.S. Commission territory.10 post L.Ed. cupied Under circum S.Ct. ex- changes stances, held immune from think that the “offenses” state we present on the taxation indictment were “are jurisdiction arms Government deemed outside committed govern- performance “any for the particular essential state district” and functions”; properly mental the Court further was therefore laid that venue exchanges post “integral are stated District Court for the Western in the juris- (iii) All offenses under the laws of Commission Court has 10. The territory, any part occupied or of there- over: diction *10 “(i) All the laws of.” offenses Military usages States United Government of war. 2, Military any proclama- No. (ii) All offenses under Ordinance Courts, Government Fed.Reg. ordinance, tion, law, is- notice or order 2190-2191. authority by or under sued Military Government or of the Allied Forces. request. Department.” It bank accounts at Har- parts Harlow’s of the War claims, employment however, low no significant there was appellants’ actually negativing posi contracts, though evidence that he received money. of this expressly this contention employees, stat We think federal tion as instrumentality deposit frivolous. our view “is an the EES ed that money designated by into accounts of the United States Government organization Department Harlow constituted if not constructive an significant receipt money by actual Army.” Harlow. this It likewise deposits Proof of expressly provided these therefore was 150k that 5 U.S.C.A. § guilt sufficient to establish un- Harlow’s would not affect that statute through der counts four nine. nonappropriated fund ac of these status as Federal instrumentalities.” tivities Appellants next Harlow and Wilson doubt, therefore, no have contend that the trial in court erred de- instrumentality United is an EES nying suppress their motions to evidence. appellants, States Government This evidence consisted of certain in- instrumentality, of this criminating letters which were written acting “for or on behalf of” the by Harlow after he had returned to San bring United so as to them within Antonio sometime 1953 to Wilson prohibitions of 18 U.S.C.A. Germany. These letters had been seized States, Cir., Canella v. United See quarters by agents from Wilson’s EES F.2d and the annotations 18 U.S. Judge by under a warrant issued Turmo C.A. § of the United States Court of the Allied High Commission. The warrant was is- (3) Counts two and three of prepared by sued on an affidavit one Can- charged the indictment field, prosecutor who was at that time a August August Wilson in the seventh Judicial District of the 12, 1953, telephoned Brussels, McLane in High Courts the Allied Commissionfor Belgium .deposit and asked him to bribe Germany. Since Canfield’saffidavit could money to the account of the Gulf States by not be located the Government at the Trading Company,which had been estab trial, sought time of prove the Government lished Harlow and Wil testimony contents the oral conclusively son. The Government es himself, by of Canfield testimony telephoned tablished McLane Judge Turmo, warrant, who issued the July 31, 1953, in Brussels on and dis testimony of Warrant Officer deposit money cussed the of bribe Coleman, charge who Trading account of the Gulf States Com investigation organization.” of “the proven pany. It was also that McLane objected Appellants testimony August telephoned 6th, Wilson on 11th that the Government had not 15th, 1953, spoke to him about proper predicate, established a the con- deposit. proof this ciently We think this suffi being testimony tention oral could guilt established Wilson’s under not be received to establish the contents two and three. counts Who made the of the affidavit until the Government telephone specific calls and on what dates diligent proved first that a search had obviously factors of little material been made the document its last charges against ity to the Wilson. known custodian And that it had been through through four Counts lost fault of the nine Government. objection receiving made, After this bribe the Gov- money Emborg. from McLane and ernment secured certificate from As to counts, Legal Embassy proof at Officer Government’s clearly Emborg Godesburg, at Bad that McLane and Ger- showed stating many,11 that he had made a deposited in certain dili- numbered kept Apparently, United in various States embassies the records files of the Germany. Republic Federal States Court of the Allied former Germany are now Commission for *11 372 gent but that it warrant. for search McLane testified search the affidavit agents interceptions the him told of these could not be found. they interrogating Ap- when were him. however, contend, Appellants pellants thereafter a mistrial moved for that defense

that there is no indication ground testimony on the that the above original certifi counsel ever received the demonstrated that the Harlow-Wilson examined ever that the trial court cate improperly admitted, letters had been receipt justified the see whether it that the warrant for of the seizure Assuming testimony.12 this of the oral procured letters was in- the basis quite true, however, it is think we gathered by investigating formation agents ob immaterial. Since the certificate illegal as the result of the mail viously predicate adequate an constituted interceptions. words, In other testimony for the admission of oral (a) interrogat- claimed that McLane was affidavit,13 relative to the contents of only investigating agents ed after the say are unable to we participation learned his brib- seriously prejudiced by the facts ery by examining scheme letters complain. now illegally intercepted; which had (b) been that McLane thereafter confessed and argue Appellants that, then persuaded Emborg confess; (c) adequate if even an certificate was that the confessions of and Em- McLane predicate for the of oral testi- admission borg were the basis for the issuance of mony, testimony this insufficient to the search appel- warrant. From this requisite probable establish cause for concluded lants that the evidence seized issuance the search We dis- warrant. under the agree. search warrant ulti- Canfield testified that the basis product application illegal his mate for for warrant was seizure information him McLane furnished Wilson’s mail.14 through Emborg conversation oral The trial court denied motion and in written statements: McLane a mistrial on the letters Emborg exposed had the whole brib- were obtained aas direct result an ery scheme, agents and had told the EES origin wholly independent of the unlaw- deposits money of their of bribe into interception.” “wholly ful This inde- request numbered bank accounts at the pendent” lead to McLane was identified testimony of Harlow and Wilson. The as a letter which had been sent Judge of Warrant Officer Coleman and FBI in the United Dutch Turmo was to the same effect. Certain- Hoogervorst banker named and which ly, probable there was cause issue the through Army had come channels search warrant on basis infor- investigating agents prior to the inter- given by Emborg mation McLane and ceptions of mail. The informa- Wilson’s paid getting by Hoogervorst supplied tion was to the supply them contracts to the EES. making large effect that McLane was monthly At the trial it came out transfers of that the from banks agents investigating bribery Holland to banks in Aft- Switzerland. intercepting agent photo- had been received, scheme er this letter was Coleman stating Hoogervorst prior Wilson’s mail to the time visited in Amsterdam. Cole- Hoogervorst man could the letters from Harlow Wilson testified agents making by the under the understand how McLane seized “was all why think it clear Har entire- 12. How or occurred low, author of the letters which ly from the record. clear seized, had a were these alleged sufficient interest the Federal Rules of letters to enable him to attack the Rule 13. See illegality 44(b) Cf. Procedure and Rule their seizure. Criminal Procedure, States, Cir., F.2d Rules of Henzel v. United Federal Civil U.S.C.A.

373 may persuaded MeLane banks” well have been money into Swiss these transfers firms; “jig up” it would that was that employed Dutch when he was n get Hoogervorst docu- be best for him to make a full disclosure said he could dealings shipping of his Wilson. with Harlow and prove was ments that McLane to therefore, say, the We are to to out a month unable some to $5000 $4000 n Credit Switzerland; McLane, Basle, the information received from Bank in Swiss quar Coleman, his which he, told led to search of returned and Wilson’s ters, superiors product of the and that was the ultimate he learned had what illegal interceptions get mail. copies trans- lie Wilson’s could of these bank Hoogervorst. The to burden es fers testi- was on the from Coleman Hoogervorst produced part tablish that a the case fied substantial further photo- poison them was “a fruit of the documents agents, investigating ous tree.” Nardone v. United stated 338, 341, 308 U.S. 84 L.Ed. been re- this information S.Ct. which Hoogervorst opinion, appellants 307. In our to the initial failed ceived from carry investigation .stimulus McLane. burden. The trial court thus to denying did not err for the motion agree trial with Bell, mistrial. See United States D.C. v. disposition court’s Know this issue. D.C., F.Supp. 612. ing representative McLane was a We come to now Wilson’s EES, selling .a number of firms to plea that his trial and on the conviction n bribery suspecting the existence of a conspiracy charge violated the constitu- n scheme whereby agents vendors or their prohibition against jeopar- tional double deposit money would bank bribe in Swiss dy. plea that, This based on fact accounts, the information received March, 1954, Wilson was convicted Hoogervorst naturally lead the investi before the United States Court gating agents suspect McLane High Germany Allied Commission for was somehow involved in the scheme. conspiring and others investigating agents not for persons selling to receive bribes from precluded interrogating ever Mc EES, merchandise to the in violation of pressing merely Lane and him to confess High the Laws of the Allied Commis- n because illegally thereafter seized sion.16 Wilson was sentenced six tending other implicate evidence Mc prison months in but was released be- bribery Lane in the scheme. McLane did fore the entire sentence was served after not indicate that he would not have con promised cooperate he the au- if fessed had not he been told investigation thorities in their further investigating interceptions of Wilson’s mail organization.” plea of “the of dou- agents know, For all we .15 jeopardy ble on based the above convic- regardless McLane would have told all rejected by tion was the court below. impart of whether this information was agents. investigating always ques ed to him There are two Knowing paying suspected a de that he was which must be resolved when tions interposes Wilson, bribes to Harlow and in a criminal case and con fendant jeopardy. documentary plea fronted with The first former evidence banks, before his transfers both tribunals Swiss whether might Paragraph agent Coleman, It be noted that lied Commission relating interrogated McLane, who the German Criminal Code denied ever in forming acquitted interceptions. him of He was these breach of trust. apparently However, charges. apparently con- the trial court found acquittal charges contrary on the that his the basis of McLane’s cedes testimony, receiving say was not a to his we bribes bar cannot that his of prosecution clearly conspiring finding receive erroneous. soliciting bribes. See bribes and for “receiving” Bayer, 532, 542, Wilson was also tried for U.S. bribes, of the Al- 91 L.Ed. violation Laws 67 S.Ct.

374 operation derived or the authority tried of the Constitution defendant was jurisdiction person the same Congress, from shall action and put sovereign;17 jeopardy both be is whether life or the second twice prosecutions “offense.” limb same for Con- for the the same offense. case, de- Thus, sequently, proceeding must we a court the instant civil (1) authority the United High under the United termine whether of- Commission States cannot from an Court of the Allied withhold authority Germany Army and ficer or full for soldier of derived its jurisdiction guaranty, and benefit he after from the United States of that military (2) has been offense of once tried in a whether the jurisdiction. competent below court of for was convicted which Wilson Congress, by express he for which the same offense constitutional provision, power prescribe Court. convicted in the Commission has the regu- government rules question, there first As to the Army, lation of rules but those United can be no doubt that the former interpreted must be in connection High Com Allied States Court against prohibition with the a man’s Germany author derived mission its being put jeopardy twice in for the ity jurisdiction the United from provision same offense. The former 341, Kinsella, 343 U.S. States. Madsen v. interpreted must not be so as to 988, 699, made 72 96 L.Ed. S.Ct. nullify If, therefore, a latter. absolutely the Su that case clear. person be tried for an offense history fully preme discussed Court deriving jurisdiction a tribunal its High Commission nature authority United Court. convicted, acquitted States and is or an Nor can there be doubt again he cannot be tried for the acquittal a mili- before or conviction same offense in another tribunal de- deriving tary quasi-military tribunal riving jurisdiction authority its authority jurisdiction from the its from the United A different States. up as a bar be set United States can interpretation finds no sanction in prosecution of- another for the same War; the Articles of for the 102d United a court of the fense before civil (which Article of War the same at least the law This has been States. 87, adopted 1806, Article Supreme Graf- since the Court decided 369) person’ Stat. declares that ‘no 333, States, 206 ton United U.S. —referring, it, persons we take 749, 51 In that case L.Ed. 1084. S.Ct. Army be tried second a —‘shall acquitted it was held that soldier time for the same offense.’ But we by military the crime of homicide question rest our decision of this jurisdiction competent court-martial upon the broad authority proceeding under the constituting same acts a crime subsequently could not cannot, the United States same offense in a civil authority tried for the court acquittal after the or conviction of deriving United competent the accused in a court of spoke The Court in these words: States. jurisdiction, be made the of a basis “ * * * express prohibi- second trial of the accused for that jeopardy of double for the same tion crime in court, the same in another military, means offense that wherever such civil or of the same ” * * * applicable, government. prohibition either Grafton, require 333, States v. U.S. facts same evidence to 749, 352, 27 S.Ct. 51 L.Ed. 1084. Nei sustain them. See Bartkus v. United States, Fifth nor ther Fourteenth 359 U.S. 79 S.Ct. 3 L. prohibit multiple prosecu Amendments Ed.2d 684 and Abbate v. United sovereigns, though tions different even 359 U.S. 79 S.Ct. 3 L.Ed.2d prosecutions are based the same Finally, appellants have question of to the then We come respect raised numerous count issues conviction Wilson’s whether respect charge the trial and with court’s relates indictment of the instant admission vari convicted and exclusion he was for which same offense *14 to ous care High As items of We have evidence. Court. in the Commission fully instruc “the examined the court’s trial question, now settled it is jury adequate. tions and find them identity whether is of offenses test Although a of evidence were required sustain few items same is evidence possibly erroneously objec admitted over Morgan Devine, 237 U.S. them.” hearsay, guilt tions that That 59 L.Ed. 35 S.Ct. Harlow es in name” and Wilson was not “the same the offenses are overwhelming competent tablished Grafton v. is immaterial. supra, satisfied, therefore, 749. evidence. We are at 27 S.Ct. 206 U.S. rulings that the of which com Thus, whether here is the ultimate issue plain prejudice did not them. required proof Wilson’s to sustain instant one of conviction on count stated, (1) For the reasons above proof as was the same indictment was appellant all conviction on for required his conviction to sustain affirmed; (2) counts is the conviction of High violating Allied Laws appellant two Wilson and three counts was. think Commission. We affirmed; (3) appel- is the conviction of reversed; lant count one is conspir both The essence of (4) Addy the conviction of agreed charges acy had that Wilson was on count is one reversed. receive bribes that Harlow and others selling persons merchandise Judge RIVES, (concurring Circuit charges the same involved Both EES. specially). vendors, agreement, same the same result, I concur but differ merchandise, bank the same numbered part opinion one seems charges short, accounts, both etc. necessary me for not the result. The continuing conspiracy and related to one opinion right statement that the participation in it. The to Wilson’s guaranteed by speedy to a trial the Sixth at both trials demon adduced evidence Amendment does not arise until after a strating participation in the Wilson’s prosecution is instituted ac- substantially identical. supported by opinions cused several is Nothing significance proven that was Foley Appeals. of Courts of See v. Unit- already second trial been at the States, Cir., 1961, 562, 565, ed 290 F.2d proven at first. This evidence was there cited. It does not seem cases to sustain Wilson’s conviction sufficient however, me, proposition that that violating the Laws of the Allied for in the “well established” absence of a violating for U.S.C. Commission controlling Supreme decision of though offenses, 371. The A. § Court; deference, and, with I am not name,” same in were the same forego I that it sound. convinced ex- already Wilson has been Since fact. my pressing reasons for doubts I because conspiring with Harlow to convicted that, am satisfied case, under the facts of this Emborg, from McLane and take bribes unnecessary there was and un- on count his conviction indict delay any stage, at reasonable either be- the same offense cannot be al ment prosecution fore instituted or clearly violates to stand. It Wil lowed respects, In all other I afterward. am in right to be free constitutional comprehensive son’s with the full accord prosecutions opinion. for the same special- of I therefore concur successive able ly. fense.