Before MAJOR, Chief Judge, and KERNER and SWAIM, Circuit Judges.
Appellant and three others were charged by indictment in two counts with offenses under sections 88 and 80 of Title 18 U.S.C. (1946 Ed.), now 18 U.S.C.A. § 371 and §§ 287 and 1001. Jury trial was waived. The court dismissed one defendant at the close of the Government's case and, at the close of all the evidence, found the other three defendants guilty as charged in both counts. It imposed a fine of $5,000 on the first count upon appellant, and suspended sentence and judgment on the second count, placing him on probation for a period of two years. From this judgment the appeal is prosecuted. The court suspended sentence and judgment on the other two defendants, placing them on probation for eighteen months. They did not join in the appeal.
The first count of the indictment charged a conspiracy to cause the North Avenue Federal Savings and Loan Association of Milwaukee (hereafter referred to as the Lender) to make and use a false certificate, which certificate the defendants knew contained fictitious statements and entries, in a matter within the jurisdiction of the Veterans' Administration, an agency of the United States, for the purpose of inducing the VA to guarantee a loan to one John Grunert, Jr., a veteran eligible for such loan under the provisions of the Servicemen's Readjustment Act of 1944. The certificate involved was alleged to be false in that it represented that a certain piece of property was being sold to Grunert for a total cost of $9,150, which price "for such property or for the cost of construction, repairs, alterations or improvements, does not exceed the reasonable value thereof as determined by proper appraisal dated October 30, 1947, made by Geo. J. Dooley, an appraiser designated by the Administration"; whereas in fact all the defendants knew that the total price to be paid by the veteran was $10,195, the overpayment being by the device of obtaining from the veteran a chattel mortgage as if on personal property upon certain items a part of the home such as the kitchen sink and cabinets and the furnace, securing a promissory note for the additional charges which the veteran agreed to pay, while the fact of this additional side payment was concealed from the Lender.
The second count charged the commission by the same defendants of the substantive offense, causing the false certificate described in the first count to be made and used by the Lender, knowing that it contained fictitious statements and entries, in a matter within the jurisdiction of the VA, an agency of the United States, for the purpose of inducing the VA to guarantee a loan to Grunert.
While the record in this case discloses considerable controversy over many of the details of the transaction here involved, there appears to be no dispute as to the essential facts, and the only question so far as the evidence is concerned is whether it supports the court's finding of guilt.
The four parties named in the indictment were appellant, an attorney and real estate dealer who throughout this transaction was acting only in his latter capacity, Mr. and Mrs. Pritzkow who owned a home they wished to sell, Attorney Louis Potter, the father of Mrs. Pritzkow, who represented the sellers - it was he who was dismissed at the close of the Government's case.
In July 1947, Mrs. Pritzkow called appellant's real estate office in response to his advertisement and listed her home for sale at $10,500. An agent of appellant obtained a prospective purchaser, the veteran, Grunert, and he signed a tentative offer to purchase for that amount, subject to GI financing. However, because the home had been purchased by Pritzkow, likewise a veteran, on a combined FHA-GI financing plan, it was necessary to have the sale price approved by the FHA, and, accordingly, written permission was obtained from that agency to sell the place at $9,710 plus a 5% commission to the broker, if any, for a total of $10,195. At Grunert's request for GI financing, appellant, who had previous experience in handling property under GI financing, requested Miss Clark, assistant secretary of the Lender, to have a GI appraisal made in accordance with the provisions of the Servicemen's Readjustment Act, 38 U.S.C.A. § 694a. Such an appraisal was made and sent by the appraiser designated by the VA to Miss Clark who notified appellant that the appraisal value was $9,150. This appraisal referred to the fact that the property was equipped with gas heat, modern kitchen equipment and "complete storms." However, appellant stated that he did not see it or know that these items had been considered by the appraiser.
After notification by Miss Clark of the amount of the appraisal, appellant told Grunert of it, and stated that that amount, $9,150, was the top price he could pay for the house under GI financing. However, he told him "between buyer and seller, in my opinion, that they could pay a sum agreed upon between them for personal property." Grunert then signed a new offer to buy the real estate for $9,150, subject to GI financing, and a separate offer to buy venetian blinds and "such other personal property to be left by the seller * * * at a price agreeable to both seller and buyer, and to give security for same as requested, and to pay therefor the sum of Twenty-five Dollars a month to include interest at the rate of 4% per annum." Both offers to purchase real estate, signed by Grunert on forms furnished by appellant, contained the following: "Included in the purchase are such of the following items as may now be on the premises, which will be delivered free and clear of encumbrance: screen doors and windows; storm doors and windows; * * * window shades, curtain rods and venetian blinds; * * * gas furnace."
Subsequently, at an evening meeting of all the parties in appellant's office, various papers were signed. These included a deed to the real property and a bill of sale signed by the Pritzkows to "the following described personal property now on the premises at * * *:
2 Storm Doors, 14 Storm windows ...