A-56602, AUGUST 23, 1934, 14 COMP. GEN. 150

A-56602: Aug 23, 1934

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CLAIMS - FRAUD - CRIMINAL CHARGES THE FRAUDULENT PRESENTATION OF A CLAIM AGAINST THE GOVERNMENT FOR A GREATER AMOUNT THAN IS DUE VITIATES CLAIMANT'S RIGHT IN THE ENTIRE CLAIM. CRIMINAL CHARGES AND PROPERTY RIGHTS ARE FOR DETERMINATION UNDER ENTIRELY DIFFERENT RULES OF EVIDENCE AND PROCEDURE AND THE DETERMINATION OF ONE IS IN NO WAY DEPENDENT UPON THE OTHER. WHEREIN WAS DISALLOWED THE CLAIM OF THE WHOLESALE FOOD SUPPLY FOR $192.14 AS THE CONTRACT PRICE OF POULTRY ALLEGED TO HAVE BEEN FURNISHED TO THE UNITED STATES MARINE HOSPITAL. WAS AWARDED CONTRACT FOR FURNISHING POULTRY TO THE UNITED STATES MARINE HOSPITAL DURING THE MONTH OF APRIL 1932. THAT ITS CLAIM HEREIN REPRESENTS THE CONTRACT PRICE OF POULTRY ALLEGED TO HAVE BEEN DELIVERED TO THE HOSPITAL UNDER THAT CONTRACT.

A-56602, AUGUST 23, 1934, 14 COMP. GEN. 150

CLAIMS - FRAUD - CRIMINAL CHARGES THE FRAUDULENT PRESENTATION OF A CLAIM AGAINST THE GOVERNMENT FOR A GREATER AMOUNT THAN IS DUE VITIATES CLAIMANT'S RIGHT IN THE ENTIRE CLAIM. THE DISPOSITION OF A CRIMINAL CHARGE UNDER SECTION 5438, REVISED STATUTES, IN NO WAY AFFECTS THE PROPERTY RIGHTS OF THE PARTIES INVOLVED. CRIMINAL CHARGES AND PROPERTY RIGHTS ARE FOR DETERMINATION UNDER ENTIRELY DIFFERENT RULES OF EVIDENCE AND PROCEDURE AND THE DETERMINATION OF ONE IS IN NO WAY DEPENDENT UPON THE OTHER.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 23, 1934:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT NO. 0446467, DATED JUNE 21, 1934, WHEREIN WAS DISALLOWED THE CLAIM OF THE WHOLESALE FOOD SUPPLY FOR $192.14 AS THE CONTRACT PRICE OF POULTRY ALLEGED TO HAVE BEEN FURNISHED TO THE UNITED STATES MARINE HOSPITAL, BALTIMORE, MD., DURING THE MONTH OF APRIL 1932.

IT APPEARS THAT THE WHOLESALE FOOD SUPPLY, OWNED AND OPERATED BY B. FRANKLIN SHIPLEY, WAS AWARDED CONTRACT FOR FURNISHING POULTRY TO THE UNITED STATES MARINE HOSPITAL DURING THE MONTH OF APRIL 1932, AND THAT ITS CLAIM HEREIN REPRESENTS THE CONTRACT PRICE OF POULTRY ALLEGED TO HAVE BEEN DELIVERED TO THE HOSPITAL UNDER THAT CONTRACT. IN THE LATTER PART OF APRIL 1932 THE DRIVER WHO WAS ENGAGED IN MAKING DELIVERIES FOR CLAIMANT REPORTED TO THE UNITED STATES ATTORNEY'S OFFICE CERTAIN IRREGULARITIES WHICH INDICATED SHORT WEIGHT DELIVERIES. ORDINARILY THE DIETITIAN OR THE STOREKEEPER RECEIVED AND CHECKED ALL DELIVERIES BUT AT TIMES WHEN NEITHER WAS ON DUTY OR IN CASE THEY WERE OTHERWISE ENGAGED, A KITCHEN ATTENDANT, HORACE JOHNSON, WAS TO PERFORM THIS DUTY.

ACCORDING TO THE DRIVER'S STATEMENT TO THE UNITED STATES ATTORNEY, JOHNSON HAD VISITED THE WHOLESALE FOOD SUPPLY AND HAD A PRIVATE CONFERENCE WITH MR. SHIPLEY; THAT HE WAS ENTRUSTED WITH TWO INVOICES COVERING EACH DELIVERY OF CHICKENS--- ONE CORRESPONDING WITH THE POUNDAGE ORDERED AND THE OTHER WITH THE ACTUAL WEIGHT OF CHICKENS DELIVERED, WHICH WAS 25 TO 30 POUNDS LESS THAN THE QUANTITY ORDERED; THAT HE, THE DRIVER, WAS INSTRUCTED THAT IN CASE JOHNSON RECEIVED THE CHICKENS HE WAS TO PRESENT THE INVOICE FOR THE AMOUNT OF CHICKENS ORDERED AND GIVE JOHNSON $2 IN MONEY, WITH WHICH, ALSO HE HAD BEEN ENTRUSTED, BUT THAT IN THE EVENT ANY PERSON OTHER THAN JOHNSON WAS RECEIVING, HE WAS TO PRESENT THE INVOICE FOR THE CORRECT WEIGHT OF CHICKENS DELIVERED AND RETURN THE $2 TO CLAIMANT. AN AGENT OF THE DEPARTMENT OF JUSTICE WAS ASSIGNED TO THE CASE AND ON APRIL 28, 1932, HE OBSERVED JOHNSON RECEIVE $2 IN MONEY FROM THE DRIVER AND AFTER CHECKING WEIGHTS FOUND THAT SHORT DELIVERY AMOUNTING TO 36 POUNDS HAD BEEN EFFECTED AT THAT TIME.

AN INDICTMENT UNDER SECTION 5438, REVISED STATUTES, GROWING OUT OF THE TRANSACTION, WAS RETURNED AGAINST SHIPLEY ON MAY 4, 1933, AND TRIAL UNDER THE CHARGE ON NOVEMBER 10, 1033, RESULTED IN A VERDICT OF NOT GUILTY AND JUDGMENT OF ACQUITTAL. THE CLAIMANT NOW CONTENDS THAT HE HAS BEEN BY THAT VERDICT EXONERATED OF ANY WRONGDOING OR ATTEMPT TO DEFRAUD THE GOVERNMENT IN CONNECTION WITH THE CASE.

THE DISPOSITION OF A CRIMINAL CHARGE IN SUCH A CASE IN NO WAY AFFECTS THE PROPERTY RIGHTS OF THE PARTIES INVOLVED, WHICH RIGHTS ARE FOR DETERMINATION UNDER ENTIRELY DIFFERENT RULES OF EVIDENCE AND PROCEDURE AND THE DETERMINATION OF ONE IS IN NO WAY DEPENDENT UPON THE OTHER.

IN DEFENSE OF THE CRIMINAL CHARGE UNDER SECTION 5438, REVISED STATUTES, CLAIMANT CONTENDED THAT THE HOSPITAL ATTENDANT JOHNSON CAME TO HIS PLACE OF BUSINESS IN HIS ABSENCE ON THREE DIFFERENT OCCASIONS AND REPORTED THAT ON ACCOUNT OF AN EMERGENCY THE HOSPITAL WAS IN NEED OF EXTRA POUNDAGE OF ROASTING CHICKENS, WHICH WERE DELIVERED TO HIM WITHOUT AN ORDER, AND THAT THE AMOUNT OF POULTRY SO DELIVERED TO JOHNSON WAS TAKEN INTO CONSIDERATION IN BILLING SUBSEQUENT ORDERS WITHOUT EXPLANATION ON THE FACE OF THE BILLS. TESTIMONY TO THAT EFFECT WAS GIVEN BY ONE OF CLAIMANT'S EMPLOYEES. CLAIMANT DID NOT EXPLAIN THE GIVING OF MONEY TO JOHNSON NOR DID HE EXPLAIN WHY SEPARATE INVOICES WERE NOT RENDERED FOR CHICKENS DELIVERED TO JOHNSON. JOHNSON DISAPPEARED AND HAS NOT BEEN APPREHENDED.

THE FRAUDULENT PRESENTATION OF A CLAIM AGAINST THE GOVERNMENT FOR A GREATER AMOUNT THAN IS DUE VITIATES AND DESTROYS CLAIMANT'S RIGHT IN THE ENTIRE CLAIM. BY A FRAUDULENT ATTEMPT TO COLLECT MORE THAN IS DUE, THE ENTIRE CLAIM IS FORFEITED. SEE SECTIONS 172 AND 173, ACT OF MARCH 3, 1911, 36 STAT. 1141, AND FURAY V. UNITED STATES, 34 CT.CLS. 171. AS A GENERAL RULE OF LAW AND EQUITY A CLAIM ESTABLISHED BY FALSE OR FRAUDULENT PRACTICES WOULD BE REJECTED. IT IS IMMATERIAL WHETHER THE FRAUD IS ATTEMPTED BY PRINCIPAL OR AGENT, ATTORNEY OR ASSIGNS. THE ACT OR DECLARATION OF AN AGENT IS THE ACT OR DECLARATION OF THE PRINCIPAL. SEE LA ABRA SILVER MINING COMPANY V. UNITED STATES, 175 U.S. 423.

THE RECORD IN THIS CASE CLEARLY ESTABLISHES THAT CLAIMANT'S ORIGINAL BILL WAS PRESENTED FOR AN AMOUNT GREATER THAN WAS ACTUALLY DUE. THAT SEEMS TO BE ADMITTED BY CLAIMANT. SUCH ACTION WAS NOT DUE TO MISTAKE OF FACT OR MISCONSTRUCTION OF LAW. IF ALL THE CONTENTIONS OF CLAIMANT SET OUT IN DEFENSE OF THE CRIMINAL CHARGE BE CONCEDED, IT IS YET APPARENT THAT INVOICES PRESENTED DID NOT DISCLOSE THE TRUE TRANSACTIONS. AN ATTEMPT TO DEFRAUD THE GOVERNMENT IS OBVIOUS AND THE STATUTE OF FORFEITURE MUST BE INVOKED. COMPARE 10 COMP. GEN. 138, AND A-52386, DECEMBER 7, 1933, AND CASES THEREIN CITED.