charge that they deal with 'a matter within the jurisdiction of the Veterans Administration, an agency of the United States'. Moreover, the Indictments allege that the defendants 'did knowingly and Wilfully make, cause to be made, and cause to be used' such documents. This sufficiently apprised the defendant that the documents in question were actually used by the Veterans Administration. Furthermore the Indictments are generally in the statutory language. This suffices, save for demands for particulars. The authorities for this principle are too numerous to require citation. There is thus no requirement to specifically allege the facts which place the matter within the jurisdiction of the United States in any more detail than was actually done.
Grossman also charges that the Indictments are too vague, claiming that it is impossible to determine whether he is charged with making, causing to be made, or causing to be used, the matters involved in the Indictments. Judge Meaney, in the Okin case, supra, sustained an Indictment charging the defendants with 'causing to be made and causing to be used'. Further, the words 'making' and 'cause to be made' are clearly congruous, not contradictory, and simply indicate that the Government is not now sure which of the three defendants named physically made, or on the other hand, caused others to make, the writing in question. But that is immaterial. Whichever occurred, the criminal result is the same as to these joint defendants. In an old New Jersey case, State v. Price, N.J.Sup.1830, 11 N.J.L. 203, the Court upheld an Indictment which charged that defendant 'did burn and cause to be burned'. This case was cited with approval in Larison v. State, N.J.Sup.1887, 49 N.J.L. 256, 9 A. 700, the very case relied upon by the defendant, where the Indictment, there disapproved, used incongruous words, not congruous words, as here. Nor is it objectionable that the Indictment charges that the false document which the defendants 'caused to be made' they also 'caused to be used'. If the defendants simply made, or caused to be made, a false writing concerning a matter within the Veterans Administration's jurisdiction, but immediately destroyed it before using same, it is highly unlikely that Congress meant that they should be punished. It is only when such false instrument was made or caused to be made, and thereafter caused to be used with the Veterans Administration, that a criminal offense occurred. See also Mosca v. United States, 9 Cir., 1949, 174 F.2d 448, where an Indictment in the very words above was upheld as valid.
Defendant Grossman also moves to dismiss the substantive counts of Indictment No. 150-57 on the grounds that there is a fragmentation of the offense -- each count is based on a separate false document, all of them dealing with the same general transaction. But Congress clearly so intended. Its words in the statute penalize the use before a governmental agency of 'any' false document. Cases dealing with a different Congressional intent, alluded to by defendant, are thus inapposite.
The motion is denied.
VI. Defendant Trachtenberg moves for the striking of certain language in the Indictments as surplusage, under Rule 7(d). Extended discussion is here unnecessary. The language is not surplusage, and is certainly not prejudicial to the rights of the defendant. If anything, the allegedly surplus language is helpful to defendant, in that it indicates the specific manner in which the documents were false.
These motions are denied.
VII. Defendant Trachtenberg moves to dismiss Count VI of the Indictment, which is directed only against him, on the ground that it is vague and indefinite. It charges Trachtenberg with falsely stating to the Veterans Administration the inclinations and feelings of the Andersons as to selling the property.
Counsel have submitted to the Court the letter of August 3, 1956 from Trachtenberg to the Veterans Administration on which this count is admittedly based. This letter does not state the Andersons' inclinations or feelings, but what Trachtenberg 'was given to understand' in that regard. Thus it purports to state Trachtenberg's state of mind, not the Andersons' state of mind. Hence the Government evidently intends to prove facts at variance with the Indictment. Since this variance would render further proceedings on Count 6 futile, this Court will not proceed to discuss the objection raised by Trachtenberg thereto, unless the Government establishes that no such variance in fact exists.
The above disposes of the substance of the many points raised by each and all of the defendants and by the Government, as well, in the numerous motions made by them in the two above cases. Counsel will confer as to the form of order necessary to effectuate the principles set forth by the Court in this opinion, and present same to the Court for entry accordingly.