
    ARTHUR R. SMITH v. THE UNITED STATES
    [No. 49522.
    Decided November 30, 1954]
    
      
      Mr. Claude L. Dawson for the plaintiff.
    
      Mr. Francis X. Daly, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   JoNes, Chief Judge,

delivered the opinion of the court:

This is a suit by a warrant officer of the United States Army for certain monies which he delivered to an agent of the United States in France, and which he asserts are wrongfully withheld from him.

The issue arises in this way: On September 14,1945, and for a short time prior thereto, plaintiff was an assistant disbursing officer and Class B Agent finance officer in the United States Army at an airfield just out of Paris, France. As such official he had under his control an average of $100,000 which was money belonging to the United States. Plaintiff’s immediate assignment was exchanging currency for personnel arriving in or leaving France. Plaintiff was in charge of the exchange booth and was responsible for the exchange operations in the course of which he handled the currency of all allied countries.

By previous arrangement made by his sergeant he on September 14, 1945, met a French civilian for the purpose of making a black-market exchange of British pounds for French francs. Plaintiff had with him 1,000 British pounds which were the property of the United States which he had taken from the finance office without authority. The French black-market operator had 165,000 French francs in varying denominations. Among them were nine 5,000-franc notes. Plaintiff refused these notes because Army regulations and directives forbade possession of notes of this denomination, and the French civilian agreed to change them for notes of smaller denomination.

While they were engaged in the transaction and after plaintiff had turned over to the French civilian 500 of the British pounds and received 120,000 French francs two agents of the Criminal Investigation Division (CID) of the United States Army arrested the plaintiff. At about the same time a French police inspector took the French operator into custody. Plaintiff was taken to headquarters and after being advised of his rights made an oral statement which was reduced to writing and signed by him. He voluntarily told the CID agents that he had in his foot locker at his quarters at the airfield $13,000 in American money and offered to surrender it to them.

The next day at his quarters plaintiff unlocked his foot locker and took out a shoeshine box from the bottom of which he removed a money belt containing a cellophane bag. He took the bag out of the belt. This bag contained 135 one-hundred-dollar bills in United States currency. The CID agents took the money and signed a receipt for it.

Plaintiff was tried by general court-martial on two charges, the second of which contained two specifications. These are set out in finding 4. He pleaded guilty to the two specifications of Charge No. 2, but on trial was found guilty on both charges.

The substance of these charges was (1) that he had embezzled 1,000 British pounds, the property of the United States; (2) violated an Army directive prohibiting the importing of United States currency into France, and (3) violated an Army directive prohibiting the possession of United States currency in France.

Plaintiff was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances due or to become due, to be confined at hard labor for three years, and to pay the United States a fine of $5,000.

Upon release after serving his sentence plaintiff demanded the return of the $13,500 which he had turned over to the CID agents following his arrest. The demand was refused. The money had been deposited in the United States Treasury, Miscellaneous Receipts, on February 14,1947.

Plaintiff enlisted in the Army in October 1940. At the time he did not own any stocks or bonds and did not have any bank account. He served as a private for one year, and eventually became a staff sergeant. He was married in December 1941 and at the time he went overseas in April 1944 his pay was increased to a total of $289.50 per month. At that time he had one child and made an allotment out of his pay of $200 per month for the support of his wife and child.

Plaintiff’s wife was not in good health and could not work, and was dependent upon the allotment of $200 per month from plaintiff on which to live. The plaintiff when he sailed for England in April 1944 took with him approximately $200 in United States currency. He was assigned to the Carrier Command at Ascot, England, in the fiscal office. After a few months he was made assistant disbursing officer and assisted in making disbursements to the troops, computed and checked vouchers, and supervised the different sections in the office. He made several flights to France to pay the troops in the line who were retrieving gliders after airborne operations. On those occasions he would take between $20,000 and $30,000 in French francs, amounting to from about 1,000,000 to 1,500,000 of such francs.

The $13,500 in United States currency which plaintiff took with him when he went to France was, according to his own story, accumulated in this way: while an assistant disbursing officer at Ascot, England, he handled currency of all allied countries. At the time plaintiff arrived in England he was required to deliver the $200 in United States currency to the defendant. It was against the Army regulations or directives for the personnel of the Army to retain in their possession in either England or France currency of the United States.

Plaintiff testified that in the latter part of May 1945 he made a trip to London, which was about 20 miles from Ascot; that he went to a club in London and met a Canadian soldier; that the Canadian soldier told plaintiff he had some Dutch guilders which he would exchange for pounds at a discount. Plaintiff gave to the Canadian soldier British pounds for Dutch guilders. Translated into American dollars at the official rate of exchange he secured some five or six thousand dollars’ worth of Dutch guilders at the rate of seven cents per dollar. At that time at the American post exchange Dutch guilders were received under numerous restrictions at a valuation of 50 cents each. The plaintiff thus made a profit of 93 cents on each dollar’s worth of Dutch guilders which he received. Within the next few days he had two other similar transactions with the same Canadian soldier, receiving in exchange Dutch guilders which he exchanged at the American post exchange for a total of $13,500 as a result of the three transactions. The American currency which he received in exchange for the Dutch guilders consisted of 135 one-hundred-dollar bills which were the same bills which plaintiff carried to France and delivered to the agents of the United States as heretofore stated.

Plaintiff testified that he traded for these Dutch guilders with his own money; that he had $200 when he went to England and had saved a total of $700 from his $89.50 per month, the amount remaining to him after his allotment was deducted; that these exchange transactions with the Canadian soldier were made wholly with his own money and that he did not use any United States funds in connection with such transactions.

However, in order to exchange funds at the post exchange at Ascot, England, for the currency of any other country the regulations required that a certificate be made out showing where the funds sought to be exchanged had been obtained, and the purpose for which the funds were to be used. Plaintiff did not do this, but used a contact man in the office and secured the exchange of funds in such a fashion that no record was made of the transaction. This was admittedly in violation of the regulations or directives.

Plaintiff testified that from the $89.50 per month there was deducted $6.20 for insurance; that his incidental expenses, such as his mess bill at the officers’ mess, meals away from the base, laundry and toilet articles, travel by buses and taxis, movies and other amusements, amounted to a total of about $30 per month, and that he saved about $50 per month which accounted for his having saved about $700 since his arrival in England.

There are some rather fantastic features of his dealings with the Canadian soldier. He testified that he did not know his name; that he met him at a club in London, but he did not know which club; he had forgotten how he first met him and although he met him three times he did not know what he looked like.

While it had been some time it rather seems that in three transactions involving what for him were considerable funds he might have been able to give some sort of description of the soldier. It is difficult to reach any conclusion other than that there was some effort to provide a cover up for an illegal transaction.

In handling several million soldiers in different foreign countries it was reasonably necessary to have some very careful restrictions on the handling of funds, and this is apparent from the directives and regulations which are on file in this case.

The plaintiff did not comply with the regulations and had no authority to exchange the Dutch guilders for American money without complying with the regulations. In other words, the United States did not agree to accept these guilders from the plaintiff under the circumstances. It was an illegal transaction unless the regulations were complied with. In these circumstances the defendant did not lose title to the United States bills in question. Buffum v. Barceloux Co., 289 U. S. 230, 236.

If Neighbor A trades a calf to Neighbor B for a pig, it is a legal transaction and may inure to the benefit of both; but if Neighbor A takes his calf over without Neighbor B’s knowledge, leaves the calf and takes Neighbor B’s pig, he does not get title to the pig, even though he can show that the calf is worth as much or more. It is an ancient maxim of the law that a man may take his property that is illegally taken from him at any place he finds it if he is able to take it peaceably.

But it is claimed that if plaintiff never secured title to the United States bills that he nevertheless left with the United States Dutch guilders of equal value, and he is therefore entitled to recover the $13,500 as the value of the Dutch guilders which he delivered in underhanded fashion to the United States Government.

But there is no evidence that there was a market value in England at the time for Dutch guilders that were on the loose. True, the United States Government had fixed a value of 50 cents each for Dutch guilders at the post exchange, but this was surrounded with many restrictions. An officer or soldier who was going to another country must make a showing of the amount needed and could then draw no more than the amount of his salary plus 10 percent. There were restrictions governing taking money off of any soldier captured or slain. In order to prevent upsetting conditions all over the world great restrictions were necessary. Many countries during the stress of war forbade their currency from leaving the country. Trade transactions were handled through trade balances, sometimes through operations with third countries.

We do not have a copy in the record of the restrictions which England may have had on the handling of Dutch guilders, but undoubtedly as England and the United States were working closely together they must have had comparable restrictions. In other words, insofar as this record is concerned, there is not shown to have been any open market for guilders in England at the time. If there had been an open free market for guilders in England it would seem absurd that a man who possessed them would sell them at seven cents on the dollar of their supposedly true value if he could take them to the market place or to a bank in England and secure their full value. Eegardless of the rate, artificial or otherwise, which the American post exchange may have had for guilders to use as a basis for exchange under rigid restrictions, there is no evidence as to the actual value of guilders in England except for the three black-market transactions that are involved in this case. If guilders were legally in England no man in his right mind who possessed them would exchange them in a secret place at a rate of seven cents on the dollar of their value. This record does not have anything to show the value of guilders on the loose and out of the established Government channels in England in May 1945.

The record fails to show the value at the time and place of taking these guilders to be substantially more than the black-market price at the time and place of taking, whatever they may have been worth in Holland, and whatever they may have been worth had they gone through the regular channels of trade. The record does not show how the guilders arrived in England nor the sources from which they came. Nor does it show that they were treated as having an exchange value outside the regular channels which were apparently subject to the wartime restrictions.

The plaintiff occupied a confidential position in the United States Government. The allied countries were carrying on a war that had cost great loss of life, broken homes, and many billions of treasure. It was a vast and extensive operation. When illegal transactions of this kind are carried on under the stress of wartime conditions we are inclined to leave the parties where we find them.

Plaintiff bad no contract with the United States Government in this particular operation. The legally constituted officials of Government did not authorize him to leave the guilders with the United States Government. His only claim for the value of these guilders is based upon an equitable claim to them and one of the oldest principles of equity jurisprudence is that he who comes into a court of equity must come with clean hands.

The plaintiff, while acknowledging his unlawful acts, insists that he has served his sentence and paid the penalty prescribed. That is true insofar as his illegal acts in France are concerned. But a glance at the court-martial verdict will disclose that it only covered his illegal acts in France. It in no way touched any illegal acts in England. Thus he has suffered no penalty for the manner in which he secured the Dutch guilders. The court-martial penalty would have no bearing on any effort on his part to recover the value of the guilders. The court-martial proceedings would have no effect on the transaction in England except as his admitted guilt when cornered in France might tend to bear upon the credit to be given his story as to the details of his accumulation of the Dutch guilders. To permit a financial officer of the Government to keep ill-gotten gains obtained in conscious violation of the rules governing the office with which he was connected would put a premium on misconduct. We desire to quote some of the principles laid down in the case of United States v. Carter, 217 U. S. 286, 305, 306, 317. This was a case where an officer of the United States had arranged a construction contract with some contractors and had a side agreement that he was to receive one-third of the profits. In commenting on his right to retain the money the Supreme Court uses the following language:

If it be once assumed that the defendant Carter did secretly receive from Greene and Gaynor a proportion of the profits gained by them in the execution of the contracts in question, the right of the United States in equity to a decree against him for the share so received is made out. It is immaterial if that appears whether the complainant was able to show any specific abuse of discretion, or whether it was able to show that it had suffered any actual loss by fraud or otherwise. It is not enough, for one occupying a confidential relation to another, who is shown to have secretly received a benefit from the opposite party, to say, “You cannot show any fraud, or you cannot show that you have sustained any loss by my conduct.” Such an agent has the power to conceal his fraud and hide the injury done his principal. It would be a dangerous precedent to lay down as law that unless some affirmative fraud or loss can be shown, the agent may hold on to any secret benefit he may be able to make out of his agency. The larger interests of public justice will not tolerate, under any circumstances, that a public official shall retain any profit or advantage which he may realize through the acquirement of an interest in conflict with his fidelity as an agent. If he takes any gift, gratuity or benefit in violation of his duty, or acquires any interest adverse to his Erincipal without a full disclosure, it is a betrayal of is trust and a breach of confidence, and he must account to his principal for all he has received.
* * * # *
The facts stated by the bill and supported by the evidence show that Carter received from Greene and Gay-nor, directly or indirectly, something in excess of five hundred thousand dollars as his share in the Greene and Gaynor contracts. Under the legal principle, which we have heretofore announced, the United States may require Captain Carter to account for all he has received by way of gain, gifts or profits out of the Greene and Gaynor contracts, irrespective of the actual damage it has sustained or its ability to follow such gains into specific property. * * *

We feel that justice will have been fully done in this case if plaintiff is given a judgment for the sum of $972.50, the amount of money which he had to his credit at the time the illegal transactions were started. Judgment for plaintiff in the sum of $972.50.

It is so ordered.

Whitaker, Judge; and LittletoN, Judge, concur.

MaddeN, Judge,

dissenting:

When the plaintiff, without complying with the regulations applicable to the exchange of foreign currency in an American finance office, obtained the 130 American $100 bills, he was guilty of embezzlement, or of the acquisition of the American money by fraud. In either case he did not have valid title to the American money. But he put in its place an amount, in Dutch guilders, that was, at the official rate of exchange, worth the same amount in American dollars.

By the exercise of the primitive remedy of self help, the American Government got back its 130 $100 bills. It took them out of the plaintiff’s locker and put them into its pocket, and later into its treasury. It still has the Dutch guilders, or their value.

I would treat the plaintiff as courts have always treated such persons as lawyers, bankers, or other trusted persons who, in violation of their trust, convert desirable assets belonging to their clients to their own use, and put in the place of those desirable assets other less desirable assets. These embezzlers are sent to prison, as was the plaintiff. The embezzled assets, if they can be found, are restored to the rightful owner, as was done in this case. But to allow the victim of the' embezzlement also to keep the assets which the embezzler put in place of the embezzled assets, as the court does in this case, that has never been done before, I think.

Government counsel stated at the argument that the Dutch guilders which the plaintiff exchanged for the American dollars were worth to the Government as much as the dollars. I find this hard to believe, and, regardless of this concession, would give the Government the opportunity, if it requests it, to present evidence to show that the Government was financially harmed by the exchange. I would then give the plaintiff a judgment for the value of the guilders to the Government.

As to the plaintiff’s ownership of the guilders, so far as the parties to this suit are concerned, no question has been raised. It is not contended that an American soldier who exchanged his money for foreign currency forfeited the foreign currency to the Government. He may have been punishable, for a violation of regulations, but forfeiture was not the prescribed punishment.

The Government, by its court martial, maintained its law by sending the plaintiff to prison. By self help, it recovered, in specie, the property which it had lost. It here contends that it is also entitled to the profits on the plaintiff’s black market operations. I think its position is beneath the dignity of the Government.

LaRAMORe, Judge, concurs in the foregoing dissent.

FINDINGS OF FACT

The court, having considered the evidence, the briefs and argument of counsel, and the report of Commissioner Paul H. McMurray, makes findings of fact as follows:

1. On September 14, 1945, plaintiff was a warrant officer in the United States Army and was stationed at Villa Coublay Air Field just outside Paris, France, with the 370th Air Service Group, where he was an assistant disbursing officer and Class B Agent finance officer in the United States Army Finance Department. As a Class B Agent and assistant disbursing officer, plaintiff had under his control an average of $100,000 which was money belonging to the United States. Plaintiff operated an exchange booth at Villa Cou-blay. There was a great deal of international air traffic passing through this airfield and part of plaintiff’s job was exchanging currencies for personnel arriving in or leaving France. He was in charge of the exchange booth, but had a sergeant at the window where money was changed. Money was signed out to plaintiff and not to the sergeant who worked under his supervision, and plaintiff as Class B finance agent was responsible for any shortages. Plaintiff handled the currencies of all allied countries in this operation. The total amount of the currency of any one country fluctuated from day to day depending on the number of exchange transactions made and the amounts involved. No record was kept of the total amount of these day-to-day fluctuations in the various currencies handled, but Army regulations required a record in the form of a certificate signed by military personnel below the rank of major making an exchange, which had to be countersigned by his commanding officer. Under Army regulations and directives, plaintiff’s cash records were kept in terms of French francs, all other currencies being figured at the official rate of exchange in terms of French francs. But plaintiff’s accountability as a finance officer was in terms of dollars.

2. On the evening of September 14,1945, plaintiff entered the San Sebastian Cafe in Paris where, by previous arrangements made for him by his sergeant, he had an appointment to make a black-market exchange with a French civilian of British pounds for French francs. Plaintiff had with him 1,000 British pounds which were the property of the United States and which he had taken without authority from the Finance Office where he worked.

Plaintiff had these 1,000 British pounds in two packets of 500 pounds each. According to the exchange to be made, plaintiff was to receive 165,000 French francs for 500 British pounds. The French black-market operator had 120,000 French francs in denominations of 1,000 francs or less and nine 5,000-franc notes. Plaintiff handed over the 500 British pounds and took the 120,000 French francs but refused the nine 5,000-franc notes because under Army regulations and directives military personnel were not supposed to have them and could not exchange them at Army installations. The French civilian agreed to change these nine 5,000-franc notes for smaller denominations.

While in the process of making the exchange and after plaintiff had turned over 500 of the British pounds and had received 120,000 francs of the 165,000 he was to be paid, he was arrested by two agents of the Criminal Investigation Division of the United States Army. By prior arrangement with the French police, a French police inspector was present and at the same time took the French black-market operator, with whom plaintiff was dealing, into custody. Plaintiff was brought to the Headquarters of Seine Section in the Place de 1’Opera, Paris, and after being advised of his rights, made a statement to the CID agents. He was very nervous and upset at the time and said that he wanted to tell the CID agents everything. In the course of his questioning, plaintiff voluntarily told the CID agents that he had in his foot locker at his quarters at Villa Coublay $13,000 in American money, and offered to surrender it to them. His oral statement was reduced to writing and he signed it. This statement was voluntary and was not obtained by fraud or duress. Plaintiff was kept in custody that night and the next day was brought to his quarters at Villa Coublay.

3. On September 15,1945, at his quarters at Villa Coublay, plaintiff, in the presence of the two CID agents, unlocked his foot locker and took out a shoeshine box containing shoeshine materials. From the bottom of the box he took out a money belt in which there was a cellophane bag. He took this bag out of the money belt. In it were 135 bills of $100 each, United States currency. He handed the bag containing the bills to one of the CID agents who counted the money. The agents then gave plaintiff a receipt signed by them acknowledging receipt of 135 bills of $100 each. Plaintiff also signed a statement acknowledging that he had turned the money over to them. Following the receipt of this money, the CID agents turned it over to their superior officers at their CID headquarters.

4. Following plaintiff’s arrest he was charged, tried by general court-martial, found guilty, and sentenced by general court-martial order dated January 4, 1946. The Charges and Specifications against plaintiff, his pleas to the Charges and Specifications, and the Findings and Sentence of the Court are as follows:

Headquarters Uhited States Am Forces in Europe APO 633
Corrected Copy 4 January 1946
General Court-Martial Orders No. 2
Before a general court-martial which convened at 1 Rue Tilsett, Paris, France, pursuant to paragraph 1, Special Orders No. 263, Headquarters, United States Air Forces in Europe, 8 October 1945, as amended by paragraphs 16 and 17, Special Orders No. 289, Headquarters, United States Air Forces in Europe, 6 November 1945, was arraigned and tried:
Warrant Officer, Junior Grade Arthur R. Smith, W2115441, Headquarters and Base Services Squadron, 370th Air Service Group.
Charge I: Violation of the 94th Article of War.
Specification: In that Warrant Officer Junior Grade Arthur R. Smith, headquarters and Base Services Squadron, 370th Air Service Group, being at the time Class “B” Agent Finance Officer to Major George E. Clark, Finance Department, a disbursing officer, did, at or near Villacoublay, France, on or about 14 September 1945, feloniously embezzle by fraudulently converting to his own use £1,000 British currency, of the value of approximately $4,035.00, the property of the United States, furnished and intended for the military service thereof, entrusted to him, the said Warrant Officer Junior Grade Arthur E. Smith, by the said Major George E. Clark, in his said capacity of disbursing officer.
Charge II: Violation of the 96th Article of War.
Specification 1: In that Warrant Officer Junior Grade Arthur E. Smith, Headquarters and Base Services Squadron, 370th Air Service Group, did, at or near Paris, France, on or about 14 September 1945, wrongfully and in violation of letter, Headquarters, European Theater of Operations, dated 23 September 1944, file AG 121 OpGA, Subject: “Prohibition Against Circulating, Importing, and Exporting United States and British Currencies in Liberated and Occupied Areas and Certain Transactions Involving French Currency Except Through Official Channels,” exchange British currency for French francs other than through official channels.
Specification 2: In that Warrant Officer Junior Grade Arthur E. Smith, Headquarters and Base Services Squadron, 370th Air Service Group, did, at or near Chateau Montbelo, Jouy-en-Josas, France, on or about 15 September 1945, wrongfully and in violation of letter, Headquarters, European Theater of Operations, dated 23 September 1944, file AG 121 OpGA, Subject: “Prohibition Against Circulating, Importing, and Exporting United States and British Currencies in Liberated and Occupied Areas and Certain Transactions Involving French Currency Except Through Official Channels,” hold and possess United States currency of the value of about $13,500, in a liberated territory, to wit: France.
Pleas
To the Specification of Charge I: Not guilty.
To Charge I: Not guilty.
To Specification 1 of Charge II: Guilty.
To Specification 2 of Charge II: Guilty.
To Charge II: Guilty.
Findings
Of tbe Specification of Charge I: Guilty.
Of Charge I: Guilty.
Of Specification 1 of Charge II: Guilty.
Of Specification 2 of Charge II: Guilty.
Of Charge II: Guilty.
Sentence
To be dishonorably discharged the Service, to forfeit all pay and allowances due or to become due, to be confined at hard labor, at such place as the reviewing authority may direct, for three (3) years; and to pay to the United States a fine of five thousand dollars ($5,000.00) (No previous convictions considered.)
The sentence was adjudged on 10 November 1945.
The sentence is approved, and. Article of War 50% having been complied with, will be duly executed. Arthur E. Smith ceases to be a warrant officer, AUS, at 2400 hours, 10 January 1946. The United States Penitentiary, Lewisburg, Pennsylvania, or elsewhere as the Secretary of War may direct, is designated as the place of confinement (CM ETO 18626)
By COMMAND OK LIEUTENANT GENERAL CANNON:
A. C. Kincaid,
Brigadier General, USA,
OJmf of Staff.
Oeeicial :
T. J. Bbogan,
Colonel, AGI),
Adjutant General.

5. Following plaintiff’s release after serving his sentence, he demanded the return of the $13,500 which he had turned over to the CID agents following his arrest. The Army refused to return this money. It had been deposited in the United States Treasury, Miscellaneous Eeceipts, on February 14, 1947.

6. Plaintiff enlisted in the Army in October 1940. Prior to his enlistment he had graduated from high school, spent one year in college and then worked for a year at various odd jobs. He was 19 years old at the time and did not make muck money, but was able to meet his living expenses. He left college, not because he could not continue, but because he was not greatly interested in college at the time.

7. At the time of plaintiff’s enlistment he did not own any stocks or bonds and did not have any bank accounts. Between his enlistment and September 1945, no one left him any money or made any substantial gifts to him. While in the service, plaintiff did not gamble. He remained a private for one year and eventually worked up to be a staff sergeant. As a private he received $66 a month, and as a staff sergeant he received $140 or $150 a month. Finally, he was promoted to the rank of warrant officer in 1943 or 1944 and his pay was increased to $250 or $260 a month.

8. Plaintiff was married in December 1941. He continued to serve in the United States until he was shipped overseas to the European Theater in April of 1944, shortly before D-day. When plaintiff was shipped overseas, his pay increased to $289.50 a month. This included his base pay, longevity, and overseas pay. At that time he had one child. He made an allotment out of his pay of $200 a month for the support of his wife and child. From the balance of his pay, his insurance premium of $6.20 a month was deducted, leaving slightly over $80 a month for his own needs and current expenses.

Plaintiff’s wife was not in good health and could not work. She had no independent means and depended on the allotment of $200 a month from plaintiff on which to live. At the time plaintiff was shipped overseas, he and his wife had a small savings account in his wife’s name of around $2,400. This appears to be the only substantial property they had. The money in the savings account was sometime later drawn out of the bank by plaintiff’s wife, but none of it was ever sent overseas to plaintiff.

When plaintiff embarked for the European Theater, he had with him approximately $200 in United States currency. Either on the boat or on arrival in England, this American money was turned in to the Finance Office and plaintiff received British pounds in exchange. This was required by Army regulations.

9. About the middle of November 1944, plaintiff was assigned to the Ninth Troop Carrier Command at Ascot, England, in the Fiscal Office. After four or five months he was made assistant disbursing officer. He assisted the disbursing officer in making disbursements to the troops, computed and checked vouchers, and supervised the different sections in the office. He had a small deputy account of $700 charged out to him as assistant disbursing officer. He made several flights to France to pay troops in the line who were retrieving gliders after each airborne operation. On those occasions he would take with him between $20,000 and $30,000 in French francs, roughly 1,000,000 to 1,500,000 French francs. At this time the French franc was worth 2 cents in American money.

10. When plaintiff was an assistant disbursing officer at Ascot, England, he handled the currencies of all allied countries. Part of his job was exchanging money from one currency to another for military personnel. The total amount of currency of any one country fluctuated from day to day according to the number of exchange transactions made and the amounts involved in that currency. No record was kept of the total amount of these day-to-day fluctuations in the various currencies handled. Army regulations required a record in the form of a certificate signed by military personnel below the rank of major making an exchange, which had to be countersigned by his commanding officer. Under Army regulations and directives, plaintiff’s cash records were kept in terms of British pounds, all other currencies being figured at the official rate of exchange in terms of British pounds. But plaintiff’s accountability was in terms of dollars. It was easy to switch money from one currency to another without detection as long as plaintiff’s books balanced in terms of British pounds.

11. Shortly after V-E Day, in the latter part of May 1945, plaintiff made a trip into London which was about 20 miles from Ascot. He went to some club in London, the name of which he was unable to remember, and while there he met a Canadian soldier, “probably a private.” They sat at a table and talked for half an hour to an hour when the Canadian soldier brought up the subject of exchanging Dutch guilders for British pounds. He told plaintiff that he had some Dutch guilders which he would exchange for pounds at a discount. After talking they arrived at an agreement whereby plaintiff would give the Canadian soldier $7 in British pounds for each $100 of Dutch guilders. At this time the official rate of exchange was approximately $4 for a British pound and fifty cents for a Dutch guilder.

At this meeting, on the basis of an agreement between the parties, plaintiff made an exchange with the Canadian soldier giving him British pounds for Dutch guilders at the rate of $7 in British pounds for each $100 in Dutch guilders. Plaintiff could not remember the number of British pounds given or the number of Dutch guilders received. But in terms of American dollars he remembered that he bought Dutch guilders worth, at the official rate of exchange, $3,000, $4,000, or $6,000. The exact amount he could not remember. Before separating, they made arrangements to make a further exchange a few days later. After this first transaction, plaintiff changed the Dutch guilders received into bills of smaller denomination.

12. A few days after this first meeting, plaintiff again came into London from Ascot and met the same Canadian soldier at the same club in London. At this meeting they made another exchange of British pounds for Dutch guilders at the same rate, plaintiff giving the Canadian soldier $7 in British pounds for each $100 in Dutch guilders. Plaintiff could not remember the number of British pounds given or the number of Dutch guilders received. Plaintiff could not remember the amount of Dutch guilders received in terms of American dollars at the official rate, but it may have been as much as $6,000 in Dutch guilders at the official rate. Plaintiff and the Canadian soldier made arrangements to meet again in a few days at the same place for a further exchange.

13. Two or three days or perhaps a week after this second meeting, plaintiff again came into London from Ascot and met the same Canadian soldier at the same club in London. At this meeting they made a third exchange of British pounds for Dutch guilders at the same rate, plaintiff giving the Canadian soldier $7 in British pounds for each $100 in Dutch guilders. Plaintiff could not remember the number of British pounds given or the number of Dutch guilders received. Plaintiff could not remember the amount of Dutch guilders received in terms of American dollars at the official rate. But plaintiff remembered that the total of Dutch guilders received in the three exchanges amounted to $13,000 in American dollars at the official rate. For these $13,000 in Dutch guilders, plaintiff gave the Canadian soldier $910 in British pounds.

14. Military personnel in the European Theater were paid in the currency of the country in which they were stationed. While in England, out of the $80 a month (in British pounds) which plaintiff had left, after his allotment and insurance were deducted, he paid various incidental living expenses such as: his mess bill at the officers mess, for his meals when away from his base, for such laundry as he did not do himself, for his PX supplies, for such toilet articles as were not sent to him by his wife, for his travel by civilian trains, buses, and taxis on his free time, and for movies and other amusements. Plaintiff testified that these expenses took about $30 a month, leaving him on an average $50 a month in British pounds, which he saved. According to plaintiff’s figures, between April 1944, when he arrived in England, and May 1945, when he made the exchanges with the Canadian soldier, plaintiff had saved $700.

15. Shortly after plaintiff made the three exchanges with the Canadian soldier in London, he took the Dutch guilders to the Finance Office where he worked, and through a contact in the office, he turned them in and received $13,000, their value at the official rate, in the form of 130 bills of $100 denomination each. This exchange was made in violation of Army regulations and without authority. Plaintiff knew of these regulations regarding the exchange of currencies. Plaintiff did not execute and have countersigned by his commanding officer the required certificate in making the exchange of these Dutch guilders for American dollars. Plaintiff used his official position, his official contacts, the facilities of the United States Army Finance Office where he worked, and United States currency belonging to the United States, to make a profit for his own benefit of $12,090. When plaintiff changed the Dutch guilders into American dollars, he used the facilities of the Finance Office where he worked for the purpose of making this profit for himself.

16. Plaintiff remained at Ascot, England, until his transfer to France at the end of August 1945. When his transfer was effected, plaintiff took with him from England the $13,000 in the form of 130 bills of $100 denomination each which he had received in exchange for the Dutch guilders, as above set forth. Taking this American currency into France was in violation of United States Army directives.

17. Plaintiff was stationed in France, first at LeBourget Air Field just outside of Paris and later at Villa Coublay Air Field, also just outside of Paris. While at LeBourget Air Field, plaintiff was Assistant Disbursing Officer. As such he signed money out to a sergeant who worked under him, but plaintiff was responsible for this money. It developed that there was a shortage of $630 in plaintiff’s account. At this time the legal rate of exchange was about 50 French francs to the dollar. In a conversation between plaintiff and the sergeant regarding this shortage, the sergeant told plaintiff that he knew of a French contact in Paris on the black market where a favorable rate could be received in exchanging American dollars for French francs. At this time, the ratio between the legal and the black market was 8 to 1, that is, the black market would pay eight times as many francs for $1 as the legal market, or roughly 400 francs to the dollar instead of 50 francs to the dollar. After talking with the sergeant, plaintiff put $600 of his own money into the safe to cover this shortage, and gave the sergeant $1,200 of his own money to go into Paris and change it for French francs on the black market. The sergeant went into Paris, made the exchange on the black market, and returned to plaintiff. It does not appear how many French francs were actually received in this exchange. Plaintiff put enough francs into the safe to make up the $630 shortage, about 31,500 francs, and took out Ms own $600 wMch was covering the shortage during the interim. Plaintiff kept the balance of the francs received from the black market exchange as a profit for himself. He then took some of these francs left, rougMy 25,000 francs, and turned them in to Ms office at the official rate, receiving $500 in the form of five bills of $100 each. At the black market rate of 400 francs to the dollar, these 25,000 French francs presumably cost plaintiff $62.50. These five $100 bills plaintiff added to the $13,000 he had brought over from England. This is the money he kept in a cellophane bag in a money belt hidden under a shoe brush in his shoeshine box in Ms locked foot locker. At tMs time, the mere possession of American currency while in France was a violation of United States Army directives.

TMs exchange of French francs for $500 was made in violation of Army regulations and without authority. The $500 wMch plaintiff received in tMs exchange was taken from official funds of the United States in the Finance Office without authority in order to make the exchange, contrary to Army regulations and directives. Plaintiff used his official position and the facilities of the United States Army Finance Office where he worked, and United States currency belonging to the United States, in order to make a profit for Ms own benefit of $437.50.

18. The Dutch guilders which plaintiff used to exchange for $13,000 in United States currency were acquired by plaintiff as a result of a black market operation and in violation of Army regulations and directives.

19. The French francs which plaintiff used to exchange for $500 in United States currency were acquired by plaintiff as a result of black market operations and in violation of Army regulations and directives.

20. When the plaintiff was tried by a general court-martial, three offenses were set out in the specifications and charges wMch are detailed in finding 4. Only one of the specifications is directly related to the amount involved in this action. In it he was charged with holding and possessing “United States Currency of the value of about $13,500 in a liberated territory,” wrongfully and in violation of a directive to “all personnel subject to the jurisdiction of this headquarters” in the form of a letter dated 2B September 1944, issued by Headquarters European Theater of Operations, United States Army. Plaintiff pleaded guilty to this specification and one other. He was found guilty of the three specifications and the two charges. He was sentenced as shown in finding 4 but no action was taken to forfeit the $13,500 or any portion of it.

CONCLUSION OP LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover, and it is therefore adjudged and ordered that he recover of and from the United States nine hundred seventy-two dollars and fifty cents ($972.50). 
      
       The fine of $5,000 was on July 19, 1946, remitted by direction of the President of the united States.
     
      
       On July 19, 1946, the fine was remitted by direction of the President of the United States.
     