114 F.3d 1192 (7th Cir. 1997), 96-3264, U.S. v. Strong

• Citation: 114 F.3d 1192
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Elmer O. STRONG, Defendant-Appellant.
• Case Date: May 20, 1997
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 1192

114 F.3d 1192 (7th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Elmer O. STRONG, Defendant-Appellant.

No. 96-3264.

United States Court of Appeals, Seventh Circuit

May 20, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Argued April 1, 1997.

Appeal from the United States District Court for the Central District of Illinois, No. 95 CR 10072; Michael M. Mihm, Chief Judge.

C.D.Ill.

AFFIRMED.

Before BAUER, CUDAHY and MANION, Circuit Judges.

ORDER

Elmer Strong was convicted of ten counts of defrauding the government in violation of 18 U.S.C. § 287. Strong claims that he is entitled to a new trial because the district court failed to instruct the jury that to convict him he must have had the specific intent to defraud the government. Because specific intent is not an element of § 287, we affirm.

I. Background

Elmer Strong owns several gas stations in Illinois. When purchasing gasoline to resell to customers, Strong, as do other gasoline dealers, pays a gasoline tax, which at the time involved in this case totaled 14.1 cents per gallon. For various reasons, the government encourages the retailing of gasoline mixed with alcohol, resulting in a mixture commonly called gasahol. To further this policy, in 1991 and early 1992 the government provided gasoline retailers a 4.44 cent per gallon refund if the gasoline was mixed with at least 10% alcohol.

To obtain this refund the gasoline dealer must submit Form 843 to the government. On this form the dealer must state the percentage of alcohol mixed with the gasoline to demonstrate that the dealer is in fact entitled to the refund. Strong submitted ten Form 843s to the government seeking refunds totaling more than $70,000. On these forms, Strong stated that he had mixed 10% alcohol with the gasoline. However, upon investigating Strong's claims the Internal Revenue Service discovered that Strong had not purchased enough alcohol to obtain the requisite 10% mixture. Strong eventually told the government that he used mixed blends of gasoline containing only four to six percent alcohol.

Based on the above, a grand jury indicted Strong on ten counts of making false claims to the government in violation of 18 U.S.C. § 287. This section imposes criminal penalties on any person who:

makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent.

Strong pleaded not guilty and proceeded to trial. Strong argued at trial that while he had stated on the Form 843 claims that he had used a 10% alcohol mixture, he did so because he thought that was the proper way to fill out the form, and that he believed he was entitled to the refund even though he used only 5.7 percent alcohol in his gasohol mixture. In other words, Strong claimed that he did not intend to defraud the government.

In support of this theory, Strong proffered the following jury instruction which instructed the jury that it had to find he had specific intent to defraud the government in order to convict him of violating 18 U.S.C. § 287:

The crime charged in this case requires proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general...