The opinion of the court was delivered by: MURPHY
Defendant, found guilty of violating 18 U.S.C.A. § 201, § 1621,
moves for judgment of acquittal or a new trial, asserting the verdict was against the evidence, the weight of the evidence, the law, and the charge of the court, reserving the right to file additional reasons after the transcript of testimony was filed. No request was made to or extension allowed by the court as required by Rule 45(b), F.R.Crim.P. 18 U.S.C.A.
Thereafter defendant asserted error in the denial of his pretrial motion for a continuance;
error in the conduct of the trial, in rulings on evidence and in the charge of the court; none involved after discovered evidence.
Timeliness of filing and of extensions granted is a jurisdictional requirement. Defendant argues that the rule applies only to motions, United States v. Bertone, 3 Cir., 1957, 249 F.2d 156, 158; United States v. Anthony, D.C.M.D.Pa.1956, 145 F.Supp. 323, 333, note 7; Drown v. United States, 9 Cir., 1952, 198 F.2d 999, 1007, not to additional reasons. But see United States v. McCurry, D.C.E.D.Pa., 146 F.Supp. 109, 111, affirmed 3 Cir., 1957, 248 F.2d 116; United States v. Stirone, D.C.W.D.Pa., 168 F.Supp. 490, 501-502, affirmed 3 Cir., 1959, 262 F.2d 571, 577-578, reversed on other grounds 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252, and see United States v. Williams, 3 Cir., 1958, 254 F.2d 253, 254; United States v. Smith, 1947, 331 U.S. 469, 472, 476, 67 S. Ct. 1330, 91 L. Ed. 1610.
In view of United States v. Smith, supra, 331 U.S. at page 472, 67 S. Ct. at page 1332, as to the sufficiency of generality of reasons and Rule 52(b) Id., we assume arguendo, apart from the denial of the motion for a continuance, the subject matter of the additional reasons is covered by the original motion. Upon careful examination we find no merit in any of defendant's reasons.
First as to the motion for judgment of acquittal:
From a study of the entire record, United States v. Calderon, 1954, 348 U.S. 160, 164, note 1, 75 S. Ct. 186, 99 L. Ed. 202; United States v. Weinberg, D.C.M.D.Pa., 129 F.Supp. 514, 516, note 2, affirmed 3 Cir., 1955, 226 F.2d 161, certiorari denied 350 U.S. 933, 76 S. Ct. 305, 100 L. Ed. 815, viewing the evidence and all inferences reasonably deducible therefrom
in the light most favorable to the government, we find substantial competent evidence that the United States Army Corps of Engineers engaged a prime contractor to construct, inter alia, Warehouse No. 6, at the Tobyhanna Signal Depot in this district, and an Architect-Engineer to supervise, inspect and assure the work was done in accordance with approved drawings and specifications.
The prime contractor subcontracted all painting to John B. Kemmel Co., Inc. Defendant was Kemmel's superintendent of painting; Paul Judge, employed by the Architect-Engineer, an inspector of painting on the roof.
Included among the steel work on the roof were 'bulb tees',
tack welded to purlins. Between adjacent bulb tees fibre glass was laid to form a supporting surface upon which gypsum was poured. The specifications provided that the bulb tees should be given a shop coat of protective paint followed by two coats of interior flat oil paint.
The shop coat was applied before the bulb tees arrived at the Depot. It was defendant's responsibility to see that two additional coats were applied to the entire bulb tee. Two field coats were never applied. For a time defendant's men painted the entire bulb tee with a single coat. A question arose as to the wisdom or necessity of painting the tops, sides and upper portions of the lips thereof, i.e., whether the paint would adhere thereto. Although the Architect-Engineer, the Corps of Engineers and Kemmel discussed the problem, no ruling was ever made. Judge never said not to paint the tops, but, on the contrary, stated bulb tees would have to be painted according to specifications, at least as to applying one field coat to the bottoms thereof, the portion visible from the ground after the fibre glass was in place and the gypsum poured. Defendant ordered the painters to paint only the bottoms of the bulb tees.
March or April of 1953, defendant asked Judge in the field office to let him get away without painting the tees and if he did he would give him $ 20 every Friday and assure him the supervisors would never check his work.
John Grady, a clerk, testified defendant said, 'Judge, I would like to put you on the payroll if you will promise not to inspect the painting of the structures on the tees or the steel'. Judge said he wanted nothing to do with it and, upon Grady's suggestion, reported the incident to Simon Carman, his superior. Defendant continued painting the bottoms of the bulb tees. As they were finishing the job defendant asked the painters to sign an affidavit without their knowing the contents thereof. The witness Cecci testified defendant told him the reason for the affidavit was to show that two costs of paint were applied. As to defendant's conduct, see United States v. Katz, supra, 78 F.Supp. at page 438.
The end of 1953 the Corps of Engineers dismissed the Architect-Engineer, and in February 1954 named John O'Donnell Chief Inspector. Shortly thereafter defendant beckoned O'Donnell into an office closet and offered him a 'roll of bills' saying 'the boss sent this up to you -- Mr. Kemmel'. O'Donnell, refusing the offer, told defendant he would have to follow the plans and specifications, and reported the incident to his superior. When O'Donnell left his superior's office defendant renewed the offer and tried to force its acceptance. Several months later when O'Donnell told defendant he would have to paint an oil tank and was on his way to report the incident, defendant again urged him to accept the money.
Evidence of other offenses is ordinarily inadmissible in a criminal prosecution. However, when intent is an essential element of the offense charged, other offenses similar to and not too remote from the crime charged may be shown. Ahrens v. United States, 5 Cir., 1959, 265 F.2d 514, 516; Morlan v. United States, 10 Cir., 1956, 230 F.2d 30, 32; Michelson v. United States, 1948, 335 U.S. 469, 475, note 8, 69 S. Ct. 213, 93 L. Ed. 168. As to corroboration, see United States v. Wall, 7 Cir., 1955, 225 F.2d 905, 907, certiorari denied 350 U.S. 935, 76 S. Ct. 307, 100 L. Ed. 816.' Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.' United States v. Stirone, supra, 262 F.2d at page 576; and see United States v. Krulewitch, 2 Cir., 1944, 145 F.2d 76, 80, 156 A.L.R. 337. 'The fact that they occurred subsequent to the crime named in the indictment is no bar to admissibility', United States v. Prince, 3 Cir., 1959, 264 F.2d 850, 852, note 1; United States v. Alker, 3 Cir., 1958, 260 F.2d 135, 157, certiorari denied 359 U.S. 906, 79 S. Ct. 579, 3 L. Ed. 2d 571.
At the time of its reception, United States v. Alfano, 3 Cir., 1945, 152 F.2d 395, 397; Rakes v. United States, 4 Cir., 1948, 169 F.2d 739, 745, and in our charge, we limited the purpose of such evidence very strictly. See United States v. Stirone, supra, 262 F.2d at page 577.
There was therefore an offer of money to Judge, an employee acting for and on behalf of the United States and its Army Corps of Engineers, in an official function, under their authority, with intent to influence his decision or action as to painting requirements under the specifications, with intent to allow a fraud to be committed on the United States and its Corps of Engineers -- a violation of § 201. See United States v. Raff, D.C.M.D.Pa.1958, 161 F.Supp. 276; 124, 49 F.2d 506, 509; Schneider v. United States, 9 Cir., 1951, 192 F.2d 498; Krogmann v. United States, 6 Cir., 1955, 225 F.2d 220; United States v. Troop, 7 Cir., 1956, 235 F.2d 123.
United States v. Rose, 3 Cir., 1954, 215 F.2d 617, 622, teaches: 'Perjury is the willful, knowing and corrupt giving, under oath, of false testimony material to the issue or point of inquiry. An essential element is that the defendant must have acted with a criminal intent -- he must have believed that what he swore to was false and he must have had the intent to deceive. If there was a lack of consciousness of the nature of the statement made or it was inadvertently made or there was a mistake of the import, there was no corrupt motive.' The evidence must meet 'the well-settled requirement that the elements of the crime of perjury must be proved by clear and convincing testimony to a moral certainty and beyond all reasonable doubt. Evidence which is merely probable is not enough'.
To justify a conviction of perjury the government must establish the falsity of the statements made by defendant under oath by testimony of two independent witnesses, or of one witness and corroborating circumstances. Weiler v. United States, 1945, 323 U.S. 606, 65 S. Ct. 548, ...