financial transactions of Carter and Westcott and the contractors, Greene and Gaynor, is both vast and intricate and entirely circumstantial. It has been read and re-read by the court as presented in the briefs and depositions. To recite it here is of no value. Suffice it to say that, without passing directly upon the questions as to whether Carter had actual knowledge of and connived at this raid upon the government, the facts brought out concerning these financial transactions are such that he must, as a conclusion of law, be held chargeable with knowledge of what was being done in the premises. This fact alone makes it clear that the government is entitled to a decree awarding to it each and every of said pieces of property held by the receiver, which shall be found to have been purchased directly or indirectly with moneys received by Westcott, or any one else, or in any other way arising from funds made up of profits realized by the contractors under the contracts in suit; and it will be so ordered." For the purpose of ascertaining the securities in evidence which are thus chargeable as held in trust for the government, and for ultimate decree in respect of all securities impounded in the hands of receivers or otherwise, the hearing was continued, and the second opinion (March 17th) treats of such ascertainment and disposition of the securities with reference to the evidence tracing the origin of the securities; and thereupon the securities were set apart, as mentioned in the decree. The following stipulation, which was entered into between the parties to the bill, pending proceedings on the part of the receiver to obtain possession of securities mentioned in the bill as held by one or the other parties named, is referred to in the decree and becomes material for consideration of various assignments of error, viz.: "United States of America-ss. "United States of America v. Oberlin M. Carter et al. In Equity. "Pending on Bill and Auxiliary Bills in the Circuit Courts for the Southern District of New York, District of New Jersey, Southern District of Georgia, Southern District of West Virginia, Northern District of Illinois, and Southern District of Illinois. "Agreement. "It is agreed between the United States, complainants, and Oberlin M. Carter, I. Stanton Carter, and Lorenzo D. Carter, defendants in the above-entitled cause, as follows: "(1) The issue as between the United States and Oberlin M. Carter as to the fraudulent diversion of funds, intrusted to him as disbursing officer, into the assets as charged in complainant's bill pending in the several districts, shall be brought to final decree first in the Circuit Court of the United States for the Northern District of Illinois, and the final decree of that court, unless reversed by the appropriate appellate court on appeal, shall be conclusive on all questions determined therein, and shall be made effective by appropriate decrees on the bills in the other districts if deemed necessary by either party. But this clause shall not be construed to operate to the prejudice or delay of the government in any proceeding against other parties for accounting in districts other than the Northern district of Illinois, who may be claiming for themselves any part of said assets. "(2) That as to the assets claimed by the government as assets into which it charges the funds intrusted to Oberlin M. Carter as disbursing officer was diverted, with the proceeds, income, and reinvestments thereof where the form of the investments have been changed, and which assets have or may be hereafter traced into the possession, custody, or control of said defendants, and have not heretofore been bona fide disposed of by them and therefore beyond their control, shall be forthwith by the said defendants turned over to the receiver appointed in this cause. But the court will determine whether the one Kentucky Central bond and one Michigan Telephone bond charged in the bill to be reinvestments of said alleged trust fund, and which bonds are claimed by I. Stanton Carter, should be held by the receiver pending the litigation. "(3) The said defendants shall waive their privileges and give all the information they can with regard to what property has been disposed of and its disposition, but no evidence which may be given by the said Carters in this case shall ever be used against them in any criminal proceedings, unless on a charge of perjury committed in this case. And nothing in this agreement shall be construed as affecting the right of the government, if any it has, to recover any part of said assets disposed of by the said defendants and not turned over to the receiver. "(4) L. D. Carter and I. Stanton Carter will forthwith dismiss their demurrers and file answers disclaiming any personal interest in the aforesaid assets in controversy in this litigation, including the real estate on Eighth avenue, New York, and at Orange, New Jersey, except as to the two bonds claimed by I. S. Carter as above. "(5) Oberlin M. Carter shall dismiss all demurrers and exceptions and shall file promptly his answers to the bills and amended bills pending in said several districts. "(6) All private books, papers, etc., of Oberlin M. Carter turned over to the court-martial shall be subject to the inspection of the counsel for said Carter, and his chief counsel shall have the right to have made, at the expense of the fund turned into court, a copy of any documentary evidence which has ever been used or referred to as evidence in the court-martial or Greene-Gaynor proceeding, or in this proceeding. "(7) From said fund to be accounted for to the receiver the sum of $5,000 shall be left in the hands of H. G. Stone, chief counsel of said Oberlin M. Carter, from which to compensate and cover the expense of employment of local counsel in any of the districts in which local counsel have been or may be employed in any branch of this case. "(8) From said fund to be accounted for to the receiver, there shall be paid: "(a) The fees, traveling expenses, and other expenses of Oberlin M. Carter's chief counsel and of his attorney at Chicago, to be fixed and allowed by the court. The importance of the case, and the means and methods taken to bring the same to a just determination speedily, and not the length to which the proceedings may be protracted, to be considered as the elements of merit in fixing such fees. "(b) Also the fee of his attorney for representing said Carter in case of any criminal trial in Georgia, if Carter should be placed on trial there prior to the final disposition of this case. "(c) The expenses of taking evidence on behalf of said Carter, including the services of an accountant at not exceeding $10 per day for his services when needed and actually employed, plus his expenses, if any. "(d) And if before the final determination of this cause the said Oberlin M. Carter shall be liberated from prison, he shall be allowed his reasonable personal expenses incurred by him while engaged in work in this cause, including the taking of evidence but with no compensation for his time. Such expenses to be determined by the court and paid out of the moneys in court. "Payments and allowances under paragraph numbered '8' of this agreement to be determined by the court from time to time on petition, with the right of the United States to contest the same as unreasonable, or that any expense was not incurred as stated. "(9) The assent of the United States to paragraphs numbered '1,' '7,' and '8' of this agreement is predicated upon the understanding that the said defendants will turn over to the receiver at least substantially all of the assets turned over to I. Stanton Carter and L. D. Carter, by J. H. Paul and R. E. Westcott and James Bragg, or their proceeds and reinvestments, except such as has been, prior to the receivership, bona fide paid out or pledged by them for attorney's fees or as expenses in defense of Carter, or expended by them legitimately in the handling of said properties, or which has not already been taken possession by receivers in this cause. "Nov. 6, 1901. United States of America, "By Marion Erwin, Special Asst. to Attorney General. "Oberlin M. Carter, "I. Stanton Carter, "By Horace G. Stone, Their Chief Counsel." Other facts in evidence, in so far as deemed material for the purposes of review, are mentioned in the ensuing opinion. Edwin W. Sims, U. S. Atty., and Marion Erwin, Sp. Asst. Atty. Gen. Horace G. Stone and Nathanial C. Sears, for Oberlin M. Carter and others. Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges. SEAMAN, Circuit Judge (after stating the facts as above). The appeal and cross-appeals for review of the decree (in two parts) entered in this cause raise no questions of law, as we believe, in reference to the primary charge of liability under the bill, which are not elementary and well settled. With no special findings of fact in the record, however-beyond the recitals and deductions stated in the written opinions filed by the trial judge as premise for the decree-solution of the ultimate facts for the purposes of review has involved examination, not only of voluminous abstracts of the testimony contained in the printed arguments, but of many pages of testimony in the record, cited in the above-mentioned opinions and in the arguments of counsel. The basic averments of the bill, of great losses suffered by the United States, through payments made to the contractors, Greene and Gaynor, of prices for their work (furnished under successive contracts) grossly in excess of value, are supported by a mass of evidence, direct and circumstantial, which impresses us to be both sufficient and substantially uncontroverted. 1. In support of the charges against the defendant Oberlin M. Carter of primary liability for conspiring with such contractors to defraud the United States under the several contracts and thus obtaining a share of the illicit proceeds, the charge of fraudulent conduct on his part rests on circumstantial evidence, although the fact is proven and undisputed that he obtained, directly or indirectly, a large share of the profits arising from such contracts. The extent of testimony and multiplicity of facts and circumstances in evidence, upon the issues of conspiracy and the so-called "engineering features of the case" involved therein, preclude any attempt to analyze the conflicting testimony or make any summary within reasonable limits for an opinion; and we are impressed with no view which requires of justifies extended discussion of this class of testimony. The ultimate facts, however, upon which decision of this issue of primary liability may rightly rest, as we believe, are either uncontroverted facts in evidence, or inevitable deductions from facts well established, to be presently stated. Under appropriations by the Congress and plans and estimates made by the engineering department for harbor improvements from time to time, in the Savannah district, the United States carried on the work in controversy from 1892 to 1897, with Capt. Carter in local charge as engineer and disbursing officer. Specifications were prepared by Capt. Carter, and upon approval by his superiors in each instance he advertised for bids and let contracts for the work. One of these contracts, made October 22, 1892, comprised expenditures in excess of $3,000,000, and is the main subject of controversy; while another, made in 1896, amounted to $2,000,000. Capt. Carter was an officer of the army, of exceptional ability both as an engineer of harbor work and for business qualities. The work as carried out under the successive contracts, aside from dredging, mainly consisted of mattresses or "mats," made of brush fascines united by grillage poles; and all contracts for this class of work were (directly or indirectly) let to the Atlantic Contracting Company, as the lowest bidders, with all operations performed by Greene and the Gaynors, composing that corporation, who had long sustained relations of intimacy with Capt. Carter. Such discretion as was vested in the engineer in local charge, under department regulations, was exercised to employ this mattress structure for the major part of the work, instead of timber or stone work (included in the specifications and authorized under the contract), and as well, instead, of dredging specified; so that, under the contract of 1892, brush mattresses were used to the amount of 1,363,372.36 square yards, instead of 350,000 square yards, estimated in the specifications and contract; and this aggregate was kept within the appropriation by omitting other work specified. In reference to this undisputed fact of substitution and increase of mattress work, explanations appear in the testimony that it was found to be advantageous for harbor improvement, and its efficiency is upheld by the concurring opinions of many eminent engineers who testify thereupon; so the foregoing statement is not to be understood as intimating doubt, either of authority to make such changes in the interest of the government, or that such substitutions were not effective for a great work in the improvement of harbors. The extension of the contract rates of 1892, however, to include the large increase of mattresses, measured by the square yard-which were made by the contractors in so-called "multiple mats," in courses of 2 to 16 in number, thus built up on the barges, towed to the work, and launched in place, each course being measured for payment-together with continuance of like general specifications and estimates, in each subsequent call for bids and letting of contracts, are obviously entitled to consideration as circumstantial evidence upon the issues of fact, when linked with the above-mentioned fact of abnormal profits thus realized by the contractors, and other circumstances in evidence. These further general facts, are established by the evidence and not controverted: The contracts which are directly involved in the controversy were let to and performed by Greene and Gaynor (as the principal contracting parties) during the years 1892, 1893, 1894, and 1895, and work was paid for by disbursement checks issued by Capt. Carter periodically at Savannah. Upon receipt of the checks it was customary for Greene or Gaynor, or both, to visit New York, where their principal bank account was kept, and the proceeds of checks not used at Savannah for payments upon the work were there divided between the contractors and a third party-R. F. Westcott, who was the fatherin-law of Capt. Carter, residing in New York, retired from active business, with large means, and not engaged in the transactions in any manner disclosed by the evidence, aside from such sharing in the proceeds. Discovery of these divisions and of innumerable details in evidence involved great skill and patient research through various bank accounts, books of account, checks, and other vouchers; but the proof is clear, both of the facts of division and of the actual amounts turned over-usually found in Westcott's account, but instances appear of corresponding amount deposited by Carter-and after 1892 the shares are identified as exactly one-third of the entire proceeds retained in New York, presumably profits under the contracts. This line of proof states the aggregate of payments made to the contractors under the successive contracts (prior to the 1896 contract) to be $2,567,493.18, while the proceeds thus divided into three shares aggregate $1,815,941.62. Investments in securities are traced which approximate in date and amount the receipts from these divisions, in numerous instances, and coming to the possession, first of Westcott and then of Carter, aside from occasional instances, contrariwise, but ultimately reaching the hands of Capt. Carter, mainly through a transfer made by Westcott, on October 29, 1897, of securities aggregating over $400,000 in amount, for which Carter's receipt is in evidence and undisputed. The search for these transactions extended to many localities, through numerous entanglements, and the only disputes arising are upon various details of specific identity and course, which leave uncontroverted the systematic disposition above stated. Abundant evidence appears of the presence of Capt. Carter in New York, upon monthly visits which coincide in date with those of Greene and Gaynor, and of his intimate relations with Westcott-both before and after the death of Mrs. Carter, daughter of Westcott, who died in December, 1892, leaving no child-including attention to large financial interests of Westcott in 1895, under power of attorney, while the latter was absent in Europe. It does not appear, however, that Carter took part in or was present at any of the divisions referred to between the contractors and Westcott; nor is there any direct evidence that he was informed thereof, or was mentioned or intended in such transactions to be the beneficiary of such shares, unless an offer on behalf of the United States of purported testimony by Westcott (since deceased) as a witness for the government in extradition proceedings against Greene and Gaynor-in a record stipulated in evidence in other respects-is admissible to that end. Whether the objection raised on behalf of Capt. Carter in the first instance to this offer was not waived by counsel in a subsequent consent to its consideration by the trial court is not free from doubt. As Capt. Carter was not a party to such proceeding, however, we believe this testimony of Westcott to be inadmissible against him upon the issue referred to. It is, therefore, excluded from the present inquiry, while reserved for later consideration by way of notice to the defendants I. S. Carter and L. D. Carter, under admissions of record on their part. We concur, therefore, in the view expressed in the opinion filed by the trial judge that the charge of conspiracy between Capt. Carter and the contractors to defraud the United States, under the contracts referred to, is (a) neither established by direct evidence; (b) nor can such charge be upheld under the testimony alone of methods adopted in making specifications, advertising for bids, treatment of proposed bidders, or letting contracts; (c) nor under one or the other several branches of testimony reviewed in the opinion, considered independently of the entire chain of circumstances. But these conclusions are not the tests of sufficiency of the entire chain of circumstantial evidence to sustain that charge. While the fact is established, as there |