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NYE & NISSEN V. UNITED STATES, 336 U. S. 613 (1949)

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U.S. Supreme Court

Nye & Nissen v. United States, 336 U.S. 613 (1949)

Nye & Nissen, A Corporation v. United States

No. 228

Argued March 3, 1949

Decided April 18, 1949

336 U.S. 613


Petitioners are a corporation and its president. An indictment charged them (and three employees of the corporation), in the first count, with conspiracy to defraud the United States from 1938 to 1945, in violation of § 37 of the Criminal Code (now 18 U.S.C. § 371), and, in six substantive counts, with filing false invoices with an agency of the United States in violation of § 35 of the Criminal Code (now 18 U.S.C. § 1001). The case involved fraudulent practices in the sale of eggs and cheese to the Army, Navy, and other government agencies. Petitioners were convicted on all counts.


1. As to the individual petitioner, there was no fatal variance between the conspiracy charged and the proof, since the evidence amply supported a finding by the jury of a single conspiracy continuing during the entire period. Pp. 336 U. S. 616-617.

2. Evidence of the presentation of false invoices other than and in addition to those charged in the indictment was admissible on the issue of intent. P. 336 U. S. 618.

3. The evidence was sufficient to support the finding of the jury that the individual petitioner aided and abetted the commission of the offenses charged in the substantive counts, and, since the case was submitted to the jury on that theory and the charge of the trial court to the jury was adequate, the conviction must be affirmed. Pinkerton v. United States, 328 U. S. 640, distinguished. Pp. 336 U. S. 618-620.

(a) The fact that some of the evidence of the substantive offenses was also evidence of the conspiracy is immaterial. P. 336 U. S. 619.

(b) Where a conspiracy as well as a substantive offense is charged, it makes no difference so far as aiding and abetting is concerned whether the substantive offense is committed pursuant to the conspiracy. Pp. 336 U. S. 619-620.

(c) The fact that, as to substantive offenses charged, a case might conceivably be submitted to the jury on either the conspiracy chanroblesvirtualawlibrary

Page 336 U. S. 614

theory or on the theory of aiding and abetting is irrelevant; it is sufficient if the proof adduced and the basis on which it was submitted are sufficient to support the verdict. P. 336 U. S. 620.

168 F.2d 846 affirmed.

Petitioners, a corporation and its president, were convicted on all counts of an indictment charging them and others with conspiracy to defraud the United States in violation of § 37 of the Criminal Code (now 18 U.S.C. § 371), and with filing false invoices with an agency of the United States in violation of § 35 of the Criminal Code (now 18 U.S.C. § 1001). The Court of Appeals affirmed. 168 F.2d 846. This Court granted certiorari. 335 U.S. 852. Affirmed, p. 620.

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