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UNITED STATES v. MCMILLAN

May 13, 1953

UNITED STATES
v.
McMILLAN



The opinion of the court was delivered by: KENNEDY

The above entitled case is a prosecution through indictment against the defendant for having violated the statute prohibiting members of Congress from entering into, executing, holding and enjoying a contract made and entered into in behalf of the United States or any agency thereof and providing a penalty in the nature of a fine for any such violation. 18 U.S.C. § 431. The indictment is met by a plea of not guilty on the part of the defendant and while the present judge under assignment to the District of Columbia was presiding over trials at a criminal division of the court the present case came to trial. Counsel for the government and the defendant feeling that the case was one largely of the interpretation of the law governing the transactions involved, waived a jury and stipulated to the trial of issues by the Court. The case accordingly went to trial and the evidence was taken.

Inasmuch as the case seemed to involve the interpretation and construction of several different statutes the Court at that time felt that the matter could be better disposed of through the filing of memorandum briefs than by oral argument. Accordingly time was fixed for the filing of such briefs and eventually, after some extensions of time, they have reached the Court for consideration. It was subsequently stipulated that the final determination of the matter (it being a misdemeanor) might be disposed of in the judge's own district and a decision made and a judgment entered thereon without returning to the District of Columbia and without the defendant being present.

 The case was taken under advisement principally on account of the confusion arising in the mind of the trial judge over the construction and interpretation of the statutes which seemed to be involved and it may be said in passing that that confusion has not been entirely dissipated after reviewing the briefs of the parties. However, it has become the duty of the Court to exert its best effort in disposing of the litigation and in consequence a memorandum will be submitted consisting largely of conclusions rather than a lengthy discussion of all the principles of law which seem to be involved.

 The indictment is brought under U.S.C., Title 18, Sec. 431, which reads as follows:

 'Contracts by Member of Congress; exceptions

 'Whoever, being a Member of or Delegate to Congress, or a Resident Commissioner, either before or after he has qualified, directly or indirectly, himself, or by any other person in trust for him, or for his use or benefit, or on his account, undertakes, executes, holds, or enjoys, in whole or in part, any contract or agreement, made or entered into in behalf of the United States or any agency thereof, by any officer or person authorized to make contracts on its behalf, shall be fined not more than $ 3,000.

 'All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced by the United States or any agency thereof, in consideration of any such contract or agreement, it shall forthwith be repaid; and in case of failure or refusal to repay the same when demanded by the proper officer of the department or agency under whose authority such contract or agreement shall have been made or entered into, suit shall at once be brought against the person so failing or refusing and his sureties for the recovery of the money so advanced. June 25, 1948, c. 645, 62 Stat. 702.'

 Another principal statute which seems to be involved is U.S.C., Title 18, Sec. 433, which reads as follows:

 'Exemptions with respect to certain contracts

 'Any exemption permitted by this section shall be made a matter of public record. June 25, 1948, c. 645, 62 Stat. 703.'

 Another section cited by counsel is Title 41, U.S.C.A., § 22, which reads as follows:

 'Interest of Member of Congress

 'In every contract or agreement to be made or entered into, or accepted by or on behalf of the United States, there shall be inserted an express condition that no Member of or Delegate to Congress shall be admitted to any share or part of such contract or agreement, or to any benefit to arise thereupon. Nor shall the provisions of this section apply to any contracts or.agreements heretofore or hereafter entered into under the Agricultural Adjustment Act, the Federal Farm Loan Act, the Emergency Farm Mortgage Act of 1933, the Federal Farm Mortgage Corporation Act, the Farm Credit Act of 1933, and the Home Owners' Loan Act of 1933, and shall not apply to contracts ...


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