Rehearing Denied Sept. 13 1945.: August 23, 1945.
Before PHILLIPS and MURRAH, Circuit Judges, and SAVAGE, District Judge.
Loney was charged by indictment containing 33 counts with violations of 18 U.S.C.A. § 82, which makes it unlawful for a person to take and carry away, or to take for his own use or the use of another, with intent to steal or purloin, any property of the United States. The trial court directed verdicts of not guilty on counts 1, 2, 3, 4, 32, and 33; the jury found Loney guilty on counts 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 27, and returned verdicts of not guilty on the remaining counts. The trial court sentenced Loney to imprisonment for a term of three years on each of the counts on which he was found guilty, the sentences to run concurrently.
Shortly after the outbreak of the war with Japan, the United States government decided to construct a large storage area for the Army at Ogden, Utah. It is known as Utah Army Service Forces Depot. It will be referred to hereinafter as the Area. It covers approximately 1800 acres. It is a complete storage base with gigantic warehouses and other auxiliary buildings. To obtain the lumber for this construction, the Army Engineers sent their agents to an organization known as "The West Coast Lumber Office," a branch of the War Production Board created for the purpose of controlling the lumber produced within the continental limits of the United States. The various producers and brokers of lumber assembled for the purpose of disposing of lumber under government supervision and requirements. The agents of the Army Engineers had lists of the grades and kinds of lumber necessary for the construction projects at the Area. The government froze all available lumber, fixed the price and controlled the shipping, the ultimate use, and the disposition of the lumber. However, because of the restrictions imposed by the Walsh-Healey Act,*fn1 the Army Engineers required the construction contractors to purchase for their contracts the lumber allocated to them by the United States government. Lumber purchased by contractors in excess of their requirements was turned over to the United States. In some cases, the government, in order to build up large stock piles of lumber, required a contractor to thus purchase quantities of lumber largely in excess of the requirements for his contract. In that way, the government obtained lumber, notwithstanding the restrictions of the Walsh-Healey Act. Many trainloads of lumber were transported from the Northwest to the Area.
Loney was an employee of the United States government at the Area. The Area Engineer had charge of the Area. Loney's duties were assigned by the Area Engineer, directly or indirectly, and Loney was supervised in the same manner. The Area Engineer placed Loney in charge of the yards set aside for lumber storage. His duties generally were to receive and store lumber directly from cars being shipped into the Area and excess lumber returned by the various contractors who had construction jobs within the Area. He was required to stack and care for the lumber and to keep it moving out to meet the requirements of the various construction jobs at the Area. His activities were supervised only in a general way. He was in charge of largescale operations and had authority to clear loads of lumber past the guards for delivery to other government construction points within the Utah District.
Major Leonard C. Treman was the Quartermaster at the Area. His duty was to provide supplies and material for the construction of packing boxes for overseas shipments. As Quartermaster, he purchased lumber outright in carload shipments and stored it adjacent to the Area Engineer's lumber yard. All the lumber in the Quartermaster's yard was purchased by and belonged to the United States. In order to aid each other in meeting the lumber requirements of the Army at the Area, extensive exchanges of lumber were informally carried out between Major Treman and Loney. Loney made reports of these exchanges to Major Treman who accepted Loney's reports without checking or investigating them.
When a building was completed on the Area the contractor was required to clean up the premises. Lumber left over that would not be accepted by the United States as surplus lumber was gathered in piles known as salvage piles. Major Treman authorized this salvage lumber to be sold for $1 per load. Loney and others took advantage of this authorization and purchased salvage lumber at $1 per load.
Count 19 charged that Loney took and carried away, for his own use and the use of others to whom he intended to sell it, certain property of the United States, to wit, lumber specifically described therein, of the approximate value of $1006.01.
Beus and Froggett operated a trucking business at Ogden, Utah. In their employ were Percy Petersen and Reed Petersen. Loney requested Froggett to ascertain if the Roy Lumber Company desired to purchase lumber and furnished Froggett with a memorandum of the kinds of lumber he could supply. Froggett contacted the Roy Lumber Company and ascertained that they desired to purchase lumber and arrived at a price satisfactory to Loney. On a Sunday morning in November, 1942, at the direction of Froggett, each of the Petersens drove a truck to a railroad car spotted on the siding in the Quartermaster's yard. The car was open and partly unloaded. It contained lumber belonging to the United States. Loney and Froggett were at the car. At Loney's instructions, the Petersens loaded the two trucks with lumber from the car. Between 8,000 and 10,000 feet of 2 X 4's and flooring were loaded on the trucks.
While the trucks were being loaded, Major Treman drove through the yard and was surprised to find the trucks being loaded with 2 X 4's from the railroad car. He made inquiry of Loney and the latter satisfied Major Treman that the lumber was being hauled for government use. Major Treman did not give his consent for Loney to take the lumber for his own use or to sell it to others.
The two truckloads of lumber were delivered to the Roy Lumber Company. The trucks did not proceed through the south gate, which would have been the direct route to the Roy Lumber Company, but went out the north gate of the Area, traveled westerly for a distance, and then proceeded south to the Roy Lumber Company.
Froggett received payment from the Roy Lumber Company for the two truckloads of lumber and other lumber furnished by Loney and sold by Froggett to the Roy Lumber Company. Froggett credited part of the amounts received on a loan he had made to Loney and paid Loney the balance in cash.
Most of the lumber covered by the several counts of the indictment on which Loney was found guilty was sold by him through intermediaries. The intermediaries received checks in payment for the lumber sold. In most instances, Loney insisted that the intermediary cash the check and pay him his part in cash.
Loney admitted that he was present at the Quartermaster's yard and directed the loading of the lumber from the car into the two trucks; that between 2,000 and 3,000 feet of lumber were loaded.His explanation was that he obtained the lumber from the railroad car in the Quartermaster's yard as scrap and paid for it on the basis of $1 per load. There is nothing in the record to indicate any ...