Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.
Defendants were convicted after a trial by jury of conspiracy to defraud the United States of certain governmental rights and functions to administer the sale of surplus property under the Surplus Property Act of 1944, 50 U.S.C.A. Appendix, § 1611 et seq., in violation of § 88, Title 18 U.S.Code.*fn1 They were also convicted on seven substantive counts. The first of such counts charged defendants with filing false certificates with the War Assets Corporation, and the other six counts charged the filing of like certificates with the War Assets Administration, all in violation of § 80, Title 18 U.S.Code.*fn2 The indictment against the defendants was found on December 30, 1952.
In more detail, Count 1 charged that commencing in December, 1945 and continuously to August, 1946, at Chicago, Illinois, defendants Lurie and Dworett conspired to defraud the United States of and concerning its governmental right and function in the orderly liquidation of surplus war assets. In substance, the conspiracy charged that in order to fraudulently and unlawfully procure Veterans' preferences in the purchase of surplus property and thus acquire such surplus property for themselves and for Rel Sales Company, Inc., defendants advised and caused divers honorably discharged veterans of World War II to make applications for surplus property to the War Assets Corporation and War Assets Administration on Veterans' Application for Surplus Property Form (SWPG-66); and advised and counseled said veterans to falsify divers material statements and entries on said applications.
Counts 2 to 7 were similar in form charging defendants knowingly and wilfully caused to be made and used a false certificate knowing the same to contain fraudulent and fictitious statements and entries. Each certificate purported to be executed by and upon behalf of a different veteran.
Defendants filed motions to dismiss the indictment challenging its sufficiency, and also urging that the indictment was barred by the three year statute of limitations, § 3282, Title 18 U.S.Code. Defendants insist that the last date upon which an indictment could be returned on the conspiracy count was June 1, 1949, and on the substantive counts, May 8, 1949. However, the government contends that the statute of limitations did not commence to run until three years after December 31, 1949, because it was suspended by the operation of the Wartime Suspension of Limitations Act, § 3287, Title 18 U.S.Code.
The pertinent part of the last named statute reads: "When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, or (3) * * *, shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress." Hostilities of World War II were declared terminated December 31, 1946 by Presidential proclamation, 12 Fed.Reg. 1, Proclamation No. 2714, 50 U.S.C.A.Appendix, § 601 note.
In 1945 and 1946, § 80, Title 18 U.S.Code contained both the False Claims Act and the False Statement Act. As a result of the 1948 codification of Title 18, the False Claims Act is now contained in § 287, and the False Statement Act in § 1001 of Title 18 U.S.Code (1952 Ed.).
The first and most complex question to be decided is the effect of the Wartime Suspension of Limitations Act. If the three year statute of limitations did not commence to run until three years after the termination of hostilities, as contended by the government, the indictment herein found on December 30, 1952 was timely by the scant margin of a day.
Our task in resolving this issue is made difficult because the Supreme Court has been so closely divided in a number of pertinent decisions and because there is no decision of that Court on the precise point which we here have under consideration.
In United States v. Smith, 342 U.S. 225, 72 S. Ct. 260, 96 L. Ed. 252, a 5 to 4 decision, the Court held the Wartime Suspension of Limitations Act was inapplicable to crimes committed after December 31, 1946, the date when hostilities were declared terminated. In the case at bar the alleged violations were prior to that date. However, in the Court's opinion appear certain dicta which the government claims are favorable to its contentions herein.
In United States v. Grainger, 346 U.S. 235, 73 S. Ct. 1069, 97 L. Ed. 1575, a 6 to 3 decision, the Court held the running of the general three year statute of limitations was suspended by the Wartime Suspension of Limitations Act as to violations in 1945 and 1946 of the false claims clause of the False Claims Act. However, the Court emphasized, 346 U.S. at page 241, 73 S.Ct at page 1073: "* * * The offenses charged in Cases No. 634 and No. 635 are violations of the false claims clause, as distinguished from the false statement clause, of the False Claims Act." The Court said, 346 U.S. at page 242, 73 S. Ct. at page 1073: "* * * Our problem is simpler than in the Bridges case [Bridges v. United States],*fn3 and in those cases which involve violations of the false statement clause of the False Claims Act."
The government argues that the first part of Count 1 of the indictment herein, the conspiracy count, charges the substantive offense of conspiring to defraud the United States and that such fraud is an essential ingredient of the offense charged. The defendants contend that all of the charges of the indictment come within the false statement clause of the False Claims Act which were specifically distinguished in the Grainger decision.
Previous to Grainger the Supreme Court held that knowingly making a false material statement pertaining to Communist-party affiliation in a naturalization proceeding, or a conspiracy to defraud the United States by so doing, does not contain fraud as an essential ingredient, Bridges v. United States, 346 U.S. 209, 73 S. Ct. 1055, 97 L. Ed. 1557; that false statements to the Civil Service Commission and the F.B.I. in seeking federal employment did not contain the necessary pecuniary fraud, Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, affirmed twice without opinion by an equally divided court, 335 U.S. 895, 69 S. Ct. 299, 93 L. Ed. 431, 336 U.S. 922, 69 S. Ct. 653, 93 L. Ed. 1084; that defrauding the United States is not an element of the crime of perjury in an income tax return, United States v. Noveck, 271 U.S. 201, 46 S. Ct. 476, 70 L. Ed. 904; nor a conspiracy to defraud by making a false ...