Jacobs v. United States

• Decision Date: 05 May 1966
• Docket Number: No. 18118.,18118.
• Citation: 359 F.2d 960
• Parties: Gilbert D. JACOBS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

359 F.2d 960 (1966)

Gilbert D. JACOBS, Appellant, v. UNITED STATES of America, Appellee.

No. 18118.

United States Court of Appeals Eighth Circuit.

May 5, 1966.

John C. Stevens, Muscatine, Iowa, for appellant.

Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, Richard J. Vipond and Charles W. Ehrhardt, Asst. U. S. Atty., Sioux City, Iowa, for appellee.

Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.

BLACKMUN, Circuit Judge.

In an indictment of eight counts Gilbert D. Jacobs was charged with violation of 15 U.S.C. § 714m(a),¹ in that he made statements, which he knew to be false, for the purpose of influencing the action of the Commodity Credit Corporation, or of obtaining for himself a thing of value under §§ 714-714o. After a plea of not guilty he was tried and convicted by a jury on all eight counts. The usual motions for judgment of acquittal were denied. The defendant received two years on each count, these sentences all to be served concurrently, and, in addition, was fined $500 on each of the last three counts. The execution of the prison sentences was suspended and the defendant was placed on probation for two years.

Defendant Jacobs is a bonded warehouseman operating grain storage facilities at Muscatine, Wilton Junction, and Durant, Iowa, under the name of Wilton Elevator Company. Commodity Credit Corporation (CCC) is a corporation created by Act of Congress in 1948 as "an agency and instrumentality of the United States, within the Department of Agriculture" for "the purpose of stabilizing, supporting, and protecting farm income and prices, of assisting in the maintenance of balanced and adequate supplies of agricultural commodities * * * and of facilitating the orderly distribution" of such commodities. 15 U.S.C. § 714. The Supreme Court has described it as "an administrative device established by Congress for the purpose of carrying out federal farm programs with public funds". Rainwater v. United States, 356 U.S. 590, 592, 78 S.Ct. 946, 948, 2 L.Ed. 2d 996 (1958).

One function of CCC is to extend farmers price support loans secured by agricultural commodities which then may be stored on the farmer's premises. 7 U.S.C. § 1441. Corn loans mature July 31 of the year following production. The farmer has the option to repay his loan in cash, or to continue the corn's storage on his farm, or to satisfy the loan by delivering the collateralized corn to CCC. When the market price is lower than the amount of the loan the last is the course usually pursued.

CCC makes contracts with private warehousemen for the storage of delivered crops and ordinarily permits the farmer to choose the warehouse to which he will make delivery. However, if storage space is not available in the farmer's trade area, he is directed to deliver either to a CCC bin site or to a private warehouse outside the trade area; in the latter case he is entitled to receive a transportation allowance.

Defendant Jacobs entered into written agreements with CCC for the storage of grain in his elevators at Durant and Wilton Junction, respectively. Each of these contracts is a CCC form entitled "Uniform Grain Storage Agreement". It recites that CCC desires that the warehouseman's facilities be made available for grain owned by or in the possession of CCC or of a farmer "as of the date of deposit in the warehouse". It provides that "All the grain accepted by the warehouseman shall be received, stored (if in storable condition) up to the capacity made available by him * * *"; that the term "receiving" means "Receiving and unloading all of the grain from cars * * * trucks * * * and elevating into, bulking, cutting in, or piling in the warehouse"; that, unless otherwise agreed in writing, "All the grain accepted by the warehouseman for storage shall be deemed to be commingled with other grain and the responsibility of the warehouseman with respect thereto shall be as if stored commingled"; that "In the case of grain stored commingled, the warehouseman at all times shall maintain in the warehouse indicated on the warehouse receipt(s) and in which the grain was originally deposited for storage a stock of grain of the quality, class and grade, and fairly representative of the quality which he is obligated to deliver against the warehouse receipt(s) representing grain stored subject to the terms of this agreement"; and that the period during which warehouse charges are payable by CCC "shall begin with the date each lot of the grain is deposited in the warehouse or the date storage charges begin as recorded on the warehouse receipt * * * whichever is later". A schedule attached to the agreement sets forth the rates at which CCC will pay the warehouseman for "receiving" (less for identity preserved than for commingling), "loading out", and "storing, insuring, conditioning, and all other charges". The receiving and loading out charges are expressed in cents per bushel and the others in thousandths of a cent per day.

The local CCC representative is the Agricultural Stabilization & Conservation Service (ASCS) Committee in the county. When a farmer wishes to turn in his corn the procedure usually begins with a transmission by the Committee to the farmer of a Commodity Delivery Notice (Form CCC Grain-50) in seven copies. Section 1 of this notice instructs the farmer "to deliver to the storage point indicated, by the date shown, the commodity described herein". Section 2 is completed and executed by both the farmer and the warehouseman following delivery of the corn. In essence, it is a statement and certification of grade and quality but the warehouseman also certifies that he "will issue acceptable warehouse receipt(s) for the commodity accepted for local storage". The warehouseman then executes and issues a Warehouse Receipt for Bulk Grain which states that he "has received for storage" from CCC on the date "deposited" bulk grain of stated quality and quantity and that such grain "is stored in the warehouse of the above named warehouseman, located at * * *." When the warehouse receipt is delivered, the Committee executes Section 5 of the delivery notice certifying delivery and approval. The Committee retains a copy of the delivery notice and forwards two copies, together with the warehouse receipt, by mail to the ASCS area office at Evanston, Illinois. Evanston prepares and sends the warehouseman its "Invoice for Warehouse Charges" (Form CSS 641-3) setting forth its understanding as to the status of deliveries and amounts owed the warehouseman for storage and receiving charges. The warehouseman returns the invoice after correction and certification that "the services for which payment is claimed have been performed in conformity with the provisions of my storage warehousing agreement with the" CCC. The invoice is then processed for payment.

In 1962 Jacobs departed from this described procedure in one respect. It is this deviation which has led to his criminal prosecution.

At that time the market price of corn was under the support price which had governed the amount of corn loans. As a result many farmers chose to satisfy their loans by the release of their corn to CCC. This resulted in a shortage of available warehousing space in Muscatine. A number of farmers who had requested permission to deliver to Muscatine warehouses acquiesced in the suggestion that their corn be delivered, instead, to the defendant's facilities in Wilton Junction and Durant. These points were approximately ten and fifteen miles, respectively, north and northeast of Muscatine.

The defendant, at the same time and on his own account, was purchasing corn from farmers and selling substantial amounts to McKee Feed & Grain Co. at Muscatine. His truckers, instead of taking the CCC corn to the Wilton Junction and Durant elevators, carried it directly from the farms to McKee. The defendant then issued CCC warehouse receipts on his Wilton Junction and Durant elevators.

Each count of the indictment is premised on a documentary exhibit by which the government claims that Jacobs falsely stated either that he received and placed in storage specific corn which in fact had been delivered to McKee without passing through the defendant's warehouse, or that he was entitled to compensation for having done so. The subjects of Counts I, II and III are warehouse receipts. Those of Counts IV and V are commodity delivery notices. Those of Counts VI, VII and VIII are invoices for warehouse charges.

The defense raises several issues. We pass immediately to the one we regard as the most important, namely, the sufficiency of the evidence to support the conviction.

Section 714m(a) obviously embraces a number of requirements: (1) There must be a statement; (2) it must be false; (3) the defendant must know it to be false; and (4) the defendant must make it either for the purpose of influencing action of CCC or for the purpose of obtaining a thing of value under an act applicable to CCC.

The statements here are those embraced in the eight count documents. We note that it is conceded that the corn which was covered by these CCC transactions was fungible. We also note that at all times Jacobs possessed free corn in his warehouses of sufficient quantity and quality to cover the CCC corn designated for delivery there, and that he was able to and did fulfill all his warehouse obligations. The facts of such cases as Marteney v. United States, 218 F.2d 258, 262 (10 Cir. 1954), cert. denied 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745, therefore stand in contrast. Here no excess corn ever went into the grain market.

We further note that the count transactions did not cause CCC to incur any expense which it would not have incurred if the CCC corn had first been taken in at the defendant's warehouses and then had been immediately removed from those warehouses and delivered to McKee. Jacobs could have followed this roundabout course and, had he done so,...