Earl Edward Moore v. United States

(concurring and dissenting):

I concur in the judgment of reversal. I do not disagree with the logical reason upon which the majority has based its conclusion. Section 51, which became effective on March 8, 1946, was originally proposed by the Comptroller General in *944 a special report dated October 5, 1943. The legislative history clearly reveals that the original purpose of the section, together with sections 52 and 53, was to establish an unquestionable civil remedy by which the Government might recover improper expenditures which it might otherwise absorb. 1946 U.S.Code Cong. Serv., p. 1081. See also 1960 U.S. Code Cong. & Adm. News, p. 3292. Even had it been shown that the payments in the instant case had been made by the subcontractors, the conclusive presumption embraced within the terms of section 51 could operate only to establish that “the cost of such expense was included in the price of the subcontract or order and ultimately borne by the United States”, an ultimate fact which would be of no materiality in a criminal, as distinguished from a civil, prosecution. 1 The provisions of section 51, as well as their sequence, clearly indicate that the section was drafted…

This appeal is from conviction of a violation of what is commonly referred to as the “Anti-Kickback Act,” Title 41 U.S.C. §§ 51-54 .

Section 51 prohibits payment of compensation or gratuities of any kind “directly or indirectly, by or on behalf of a subcontractor, as defined in section 52,” to (among others) any agent or employee of a prime contractor holding a contract with the Government for the furnishing of services or materials on a cost-plus-fixed-fee basis. Section 54 makes it a crime to “make or receive any such prohibited payment.” Appellant was convicted of having received certain prohibited payments. He contends that there is no evidence that any payments received by him were prohibited under section 51 and that it was error to deny his motion for acquittal. We agree.

There is ample proof that on his solicitation payments were made to him by agents of two business concerns which, the Government contends, were subcontractors under section 52. However, there is no evidence whatsoever that these payments were made by or on behalf of those concerns. The District Court recognized this deficiency in the proof. In its opinion it stated:

The court concluded, however, that…

347 F.2d 942 Earl Edward MOORE, Appellant, v. UNITED STATES of America, Appellee. No. 19435. United States Court of Appeals Ninth Circuit. June 25, 1965. Ned R. Nelsen, Richard M. Moore, Cooper & Nelson, Los Angeles, Cal., for appellant. Thomas R. Sheridan, U.S. Atty., Richard A. Murphy, Asst. U.S. Atty., Chief, Crim. Sec., John A. Mitchell, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before MERRILL, DUNIWAY and ELY, Circuit Judges. MERRILL, Circuit Judge: 1 This appeal is from conviction of a violation of what is commonly referred to as the 'Anti-Kickback Act,' Title 41 U.S.C. 51-54. 2 Section 51 prohibits payment of compensation or gratuities of any kind 'directly or indirectly, by or on behalf of a subcontractor, as defined in section 52,' to (among others) any agent or employee of a prime contractor holding a contract with the Government for the furnishing of services or materials on a cost-plus-fixed-fee basis. Section 54 makes it a crime to 'make or receive any such prohibited payment.' Appellant was convicted of having received certain prohibited payments. He contends that there is no evidence that any payments received by him were prohibited under section 51 and…