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United States v. Berling

October 10, 1963


Author: Schnackenberg

Before DUFFY, SCHNACKENBERG and KILEY, Circuit Judges.


Charles E.Berling, b/ering, defendant, has appealed from a judgment of the district court, on a jury verdict finding him guilty of aiding, abetting and counselling in the making and using of false documents, in violation of 18 U.S.C.A. §§ 1001 and 1002*fn1 as charged in count II of an indictment.

The jury also found Berling guilty on count I, which charged a conspiracy to make false statements in violation of 18 U.S.C.A. § 371.*fn2 Berling's motion for judgment of acquittal as to count I notwithstanding the verdict, was granted.*fn3

Defendant now asserts that the district court, having granted his motion for judgment of acquittal as to count I on the ground that the government had offered proof of more than one conspiracy, erred in denying his motion for judgment of acquittal as to count II. He argues that the error below rests in the failure of the court to determine that what it considered prejudicial joinder of separate conspiracies in count I, which named Berling, must be treated as equally applicable to him as a defendant under the aiding and abetting charge of count II.

A trial, the length of which is reflected in 3015 pages of a transcript of proceedings, produced evidence which we will, for the purpose of this opinion, condense.

This case involves the preparation for submission to the Army Finance Center at Fort Benjamin Harrison, Indianapolis, Indiana, of false and fraudulent allotment authorization forms (DA Form 1341) for the payment of life insurance premiums, and accompanying false and fraudulent transmittal letters (DD Form 379) listing the false 1341s. The originators of the bogus 1341 forms were various insurance agents and military personnel at Fort Dix, New Jersey, and Fort Jackson, South Carolina.

In the normal processing of form 1341, copies 1 and 5 would go to the Finance and Account Office at the serviceman's post, from which copy 1 would be forwarded under cover of a transmittal letter to the Army Finance Center at Fort Benjamin Harrison; copy 2 would go into the serviceman's data folder, maintained at his duty station; copy 3 would go to the serviceman himself; and copy 4 would go to the personnel office at his post.

Berling's counsel in his brief concedes that the evidence revealed from April or May of 1959 until August of 1960 "a range of abuses involving the solicitation of insurance within the jurisdiction of the Department of the Army of the United States which challenges the imagination". He also admits that regulations were violated in Fort Jackson, South Carolina and Fort Dix, New Jersey, and that "many of the defendants conspired with Sgt. Wallace E. Wilson in ways that involved the making of false, fictitious and fraudulent statements and representations and false writings and documents within the jurisdiction of the Department of Army of the United States".

Around June 1, 1960, National Security Insurance Company*fn4 received about 100 insurance applications which had been written at Fort Dix. On the basis of these and earlier applications, advances were made to agents in the amount of approximately $60,000. Roy Gordon, general agent under National's military director, became concerned over this volume of business at Fort Dix, because he was responsible for the money which had been advanced and he was not certain that the allotment forms were being properly processed.

Zebbie Overstreet, agency director of National, on June 9, 1960, made a trip to the Finance Center at Fort Benjamin Harrison, at Indianapolis, where he was taken to Berling, Chief of the Receiving and Examination Branch of the Accounts Control Division of the Allotments and Deposit Operation. Overstreet furnished Berling with a copy of a transmittal letter bearing twenty names and asked Berling to check to determine if the allotments in question were being processed in the Finance Center. Berling checked and found that allotment forms had been received for eighteen of those listed. Overstreet then returned to Elba, Alabama, and, shortly thereafter, wired Berling $100 in appreciation for his cooperation.

On July 1, 1960, Overstreet called Berling at Indianapolis, person to person, and asked him to conduct a spot check about certain names that Overstreet had attempted to check at Fort Dix by sending Gordon there. Berling later called back and advised Overstreet that there was a large volume of National business at Fort Benjamin Harrison; no check was made, however, of specific names. After Gordon returned to Elba, Alabama from Fort Dix, he and Overstreet again began to have fears that the business at Fort Dix was not being properly processed. On July 6, 1960, Overstreet again visited Berling at Indianapolis to check on the Fort Dix allotments. After an examination of his records, Berling advised Overstreet that there were no allotments in process for National from Fort Dix.

After further negotiations between Overstreet and Berling, on August 12, 1960 they entered into an agreement whereby 800 or 900 unprocessed 1341s which Overstreet had in his possession would be processed directly through the Finance Center, bypassing the various post finance offices. Berling was to supply Overstreet with authentic transmittal letters from military posts in the United States, having several 1341s attached. By referring to such authentic transmittal letters and 1341s, Overstreet could then complete the 1341s in his possession and prepare transmittal letters pertaining thereto. Overstreet gathered John Kayser, Charles Loring and Glenda Maddox (later Mrs. Glenda Roberts) at Indianapolis between August 13 and 16, where they assisted him and then went home a few days later. At about this time, Walter Miller, the supervisor of one of the examination sections of the Receiving and Examination Branch of which Berling was chief, requested one of the control clerks in the examination section to pull the longest transmittal letters she could find from posts which were listed on a sheet of paper Miller gave to her. She was advised that Berling wanted these transmittal letters. Once, subsequent to this initial request, Berling himself asked her for such transmittal letters. The transmittal letters and 1341s, which Berling asked for, were those which had been received in the mailroom but had not yet been started through the processing cycle in his branch so that the 1341s would still be attached. The date perforation stamps on the first page of the transmittal letters in evidence show that they were received at the Finance Center from August 12, 1960 through and including August 19, 1960, which dates coincide precisely with the dates that Overstreet and his associates were in Indianapolis

The evidence shows in detail how these transmittal letters were used and processed using a blank form supplied to Overstreet by Berling. When some 1341 forms and accompanying transmittal letters had been completed, Overstreet delivered them to Berling, who in turn delivered additional authentic transmittal ...

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