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May 17, 1948

TONER, et al.

The opinion of the court was delivered by: MURPHY

Defendants were charged with violation of 18 U.S.C.A. § 88, *fn1" conspiracy to violate 18 U.S.C.A. § 80, *fn2" and in five counts respectively with violation of Section 80. McLaughlin immediately before trial plead nolo contendere. *fn3" Toner was found guilty by a jury. Toner moves for judgment of acquittal *fn4" and in the alternative for a new trial. *fn5"

At the conclusion of the charge of the court no exceptions in compliance with Rule 30 *fn6" were taken. Defense counsel requested that all exhibits be sent out with the jury. The trial covered a period of five days including two night sessions and presents a transcript of eight hundred forty-four pages.

 We discuss first defendant's contention that the evidence was not sufficient to sustain a conviction.

 In considering the sufficiency of the evidence to sustain the verdict of the jury, this Court must take that view of the evidence which is most favorable to the government; must give to the government the benefit of all the inferences which reasonably may be drawn from the evidence; and must refrain from concerning itself with the credibility of witnesses and the weight of the evidence. Affronti v. United States, 8 Cir., 1944, 145 F.2d 3, 5. The verdict of the jury must be sustained if there is substantial evidence to support it. Glasser v. United States, 1942, 315 U.S. 60, at page 80, 62 S. Ct. 457, 86 L. Ed. 680; -- united States v. Manton, 2 Cir., 1938, 107 F.2d 834, 839, certiorari denied 309 U.S. 664, 60 S. Ct. 590, 84 L. Ed. 1012; United States v. Michener, 3 Cir., 1945, 152 F.2d 880, 885; United States v. Toscano, 2 Cir. 1948, 166 F.2d 524.

 Atlantic and Gulf Stevedores, Inc. (herein A & G) were under contracts with War Shipping Administration (herein WSA) engaged to perform stevedoring work at the Port of Philadelphia on ships assigned to them by WSA. A & G was to be reimbursed by WSA for all direct labor charges, certain designated costs, and in addition as payment for supervision, use of gear, overhead and compensation on all cargo, a tonnage fee varying as to type of cargo. The contract defined 'direct labor' as 'all longshoremen * * * and other workmen employed in and about the work'; 'work' as 'all stevedoring work, duties, services, operations and functions in connection with stevedoring activities * * * '; 'duties of the stevedore' required that A & G 'load and discharge cargo; do and perform all the duties and functions usually and customarily * * * performed by a stevedore; furnish all labor of every nature and description and all gear and mechanical or other equipment * *$ * necessary for the most efficient loading * * * of the vessel * * * and at all times while the vessel is being worked, provide not less than one general supervisor in direct charge of the work on each vessel.'

 Clerking of the ships was under WSA contract the duty of another company; operation of the vessel the responsibility of the shipping company under WSA contract. Railroad work was the responsibility of the Reading and Pennsylvania Railroads.

 While the stevedoring work for WSA was in progress defendants Toner, Port Manager in complete charge of stevedoring operations for A & G, and McLaughlin, the head timekeeper, met and devised a plan or scheme which they subsequently carried out whereby a group of unsigned withholding tax cards to which signatures had not been obtained were used as a basis for carrying work numbers on A & G time sheets purporting to show that the men represented by the tax numbers were working as longshoremen in performing work under the contracts. Those men did no work at all either as longshoremen or otherwise for A & G. One of them was in a mental hospital, another with the United States Army in Europe; the others were in various other places than in the employ of A & G. The work checks were carried for a period of many months, pay envelopes collected for them, charges made on daily reports and later on invoices, and all of same paid by WSA to A & G. The daily and weekly reports indicating that such men had worked and that the charges for their work were proper were signed by the defendants; the invoices were certified by Toner as being true and correct. The defendants were aware of this plan, and participated in carrying it out. Unfounded claims were made against the government until $ 6000 was thus obtained. The government charged the defendants with having thus conspired to defraud the government of $ 4376.82, and in the individual counts as to the substantive offenses as to McLaughlin $ 2368.96; Toner $ 2007.86.

 The government had the burden of showing the persons named in the indictment did not work as longshoremen. This they showed clearly by calling the men themselves.

 In addition it was necessary to show that the longshoreman work for which charges were made was not performed by any other longshoreman. The evidence showed that officials and clerks of shipping companies, clerks of clerking companies and railroad employees were paid tips and gratuities out of government funds, while in many instances they were being paid by other companies for the same hours out of government funds. The jury was justified in inferring that many of them were paid by A & G out of government funds when they performed not work at all. On some occasions they were listed as having performed longshoreman work when they did no such work. Sometimes they were represented as being the persons whose names were on the unsigned tax cards; in other cases, although listed under their own names and tax cards, they were improperly listed as longshoremen.

 The A & G records showed that for the year prior to Toner becoming Port Manager there was paid out of the A & G petty cash account for tips and gratuities (exclusive of Christmas gifts) $ 6398.10. For the thirteen months while the plan of Toner and McLaughlin was in force only $ 609 was thus paid and, for the several months prior to the FBI investigation, nothing at all. As soon as the FBI arrived on the scene payments of tips and gratuities from petty cash were again made by Toner.

 The evidence also showed that Toner and McLaughlin had been engaged in a similar practice as to two other work numbers and tax cards before April 1944. In those cases the tax cards were prepared by Toner and the numbers carried by McLaughlin and other timekeepers. The cards were shown to contain, as to one a Social Security number not existing under the Social Security System; the other purported to contain the name of a man, whereas it contained the Social Security number of a woman.

 The government called an auditor from WSA to testify as an expert that the employees of shipping, clerking and railroad companies were not properly listed as longshoremen in view of the work they were doing and that claims for such work would not be allowed by him as an auditor. Further that if Toner desired to make claim for the work they were performing, such claims would first have to be approved as an extra allowance was ever made. Similarly the government called the assistant superintendent of Moore-McCormack, one of seven stevedoring companies at the Port of Philadelphia, all engaged in general stevedoring work; the Moore-McCormack company, however, also supplied clerking crews whereas A & G did not perform those services. He explained what was meant by clerking the ship, what the duties of a clerk were, what work the clerking company was to perform. The witness also testified as an expert that certain work allegedly performed by shipping company clerk crews and railroad employees was not longshoreman work at all.

 From the evidence the jury was justified in finding that the charges made as to the group of tax cards were false and that those men did not work at all; that men were listed as doing longshoreman work when they should not have been charged to The government as such, but should, if they did perform any service for A & G, have been compensated by them out of their general fund or, if tips or gratuities were to be paid, out of the A & G petty cash account.

 From a study of the record and a thorough consideration of the arguments and briefs of counsel, we hold that there was ample substantial testimony supporting no other reasonable hypothesis but that of guilt of the defendant Toner on all charges. In that respect the verdict of the jury is well sustained.

 The defendant at the trial admitted duplicate payments to certain employees of other companies and payment for the same hours as they were being paid for by their own individual employers; insisted that they were actually doing longshoreman work, that they were covered by the provision in the contract 'or other workmen'. He ...

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