Earl Edward Moore v. United States

347 F.2d 942, 1965 U.S. App. LEXIS 5118

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 25, 1965
• Docket: 19435
• Status: Published

Opinions

MERRILL, Circuit Judge:

This appeal is from conviction of a violation of what is commonly referred to as the “Anti-Kickback Act,” Title 41 U.S.C. §§ 51-54.

Section 51 prohibits payment of compensation or gratuities of any kind “directly or indirectly, by or on behalf of a subcontractor, as defined in section 52,” to (among others) any agent or employee of a prime contractor holding a contract with the Government for the furnishing of services or materials on a cost-plus-fixed-fee basis. Section 54 makes it a crime to “make or receive any such prohibited payment.” Appellant was convicted of having received certain prohibited payments. He contends that there is no evidence that any payments received by him were prohibited under section 51 and that it was error to deny his motion for acquittal. We agree.

There is ample proof that on his solicitation payments were made to him by agents of two business concerns which, the Government contends, were subcontractors under section 52. However, there is no evidence whatsoever that these payments were made by or on behalf of those concerns. The District Court recognized this deficiency in the proof. In its opinion it stated:

“Defendant alleges that there is no evidence in the case, either in count 1 or in count 7, to establish that the payments were made by either United Control Corporation or Univox Corporation, as each payment was made by an official of the respective corporations and, according to the testimony, was not charged up to either company or to the subcontracts.”

The court concluded, however, that this deficiency was remedied by other language of section 51:

“Upon a showing that a subcontractor paid fees, commissions, or compensation or granted gifts or gratuities to an officer, partner, employee, or agent of a prime contractor or of another higher tier subcontractor, in connection with the award of a subcontract or order thereunder, it shall be conclusively presumed that the cost of such expense was included in the price of the subcontract or order and ultimately borne by the United States.”

Of the many objections raised by appellant to the court’s resort to this presumption we need deal with only one: By its very terms its application is limited to cases where payment was by a subcontractor. Absent independent proof of such a payment, the presumption has no application here.

Judgment reversed.