472 F.2d 207 (8th Cir. 1973), 71-1733, United States v. Bass

Docket Nº:71-1733, 71-1734.
Citation:472 F.2d 207
Party Name:The UNITED STATES, Appellee, v. Harry C. BASS, Jr., Appellant. The UNITED STATES, Appellee, v. SELB MANUFACTURING CO., Appellant.
Case Date:January 11, 1973
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 207

472 F.2d 207 (8th Cir. 1973)

The UNITED STATES, Appellee,

v.

Harry C. BASS, Jr., Appellant.

The UNITED STATES, Appellee,

v.

SELB MANUFACTURING CO., Appellant.

Nos. 71-1733, 71-1734.

United States Court of Appeals, Eighth Circuit.

January 11, 1973

Submitted Sept. 11, 1972.

Rehearing and Rehearing En Banc Denied Feb. 21, 1973.

Page 208

[Copyrighted Material Omitted]

Page 209

Robert V. Light, Little Rock, Ark., for appellants.

Sidney H. McCollum, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before BRIGHT and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge. [*]

STEPHENSON, Circuit Judge.

This appeal from a jury conviction charges trial court error in (1) denying discovery of documents and other evidence; (2) overruling a motion to dismiss the substantive charge because of failure to state a violation of Title 18 U.S.C. § 1001; (3) overruling the motion for judgment of acquittal on the same Count because of insufficiency of the evidence; (4) admitting certain evidence; (5) denying a motion for mistrial based on the alleged misconduct of the prosecuting attorney during closing arguments; and (6) assuming advocacy in the charge to the jury. We discuss the alleged errors seriatum. We affirm the conviction of both defendants.

Count I charged the defendant Harry C. Bass, Jr., and his solely owned corporation, defendant Selb Manufacturing Company (sub-contractor) and six other individual defendants, 1 with conspiring to defraud the United States by fraudulent statements and representations for the purpose of passing off on General Dynamics (general contractor), and ultimately the Air Force, unacceptable component parts for the F-111 aircraft as acceptable parts in violation of Title 18 U.S.C. § 371. Selb held a sub-contract with General Dynamics to manufacture pursuant to purchase orders certain component parts. Count XVI charged Bass and three other individual defendants with making false and fraudulent representations to the Air Force by fraudulent misapplication of serial numbers on aircraft parts and falsely representing that the aircraft parts met required specifications when they knew the parts were unacceptable.

In the fall of 1966, Selb and its affiliates, all owned by Bass, obtained a subcontract with General Dynamics to manufacture pursuant to purchase orders certain airplane parts to be included in the F-111 aircraft which General Dynamics was to build for the United States Air Force. Several purchase orders bearing dates between October 1966 and March 1967, and amendments thereto, were issued and executed. By the fall of 1967 Selb was behind in its delivery of parts and was experiencing difficulty in machining parts to blue print tolerances. The Government contends that it was at this time that there began a scheme and plan to defraud General Dynamics and ultimately the Air Force by sending them parts which were deficient and did not meet specifications without informing them of such deficiencies and in fact falsely representing that the parts were good and acceptable. The indictment in substance charged that the named defendants and other co-conspirators conspired to defraud the Government (1) by sending in deficient parts without indicating the parts were defective on Suppliers Inspection Rejection Reports (SIRs) as required by the

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contract; (2) by removing serial numbers from defective parts and replacing them with serial numbers of good or acceptable parts; and (3) that in furtherance of the scheme officers and employees of Selb gave to employees of General Dynamics certain gratuities for the purpose of influencing and inducing favorable action as to the acceptance or rejection of parts. The trial extended over a two-week period. Some 28 witnesses testified and over 100 exhibits were received in evidence.

Discovery

Grand Jury Testimony. Timely motions were filed in behalf of both defendants pursuant to Rules 6(e) and 16, Fed.R.Crim.Proc. for permission to inspect and copy the testimony of all witnesses who appeared before the grand jury, and, in the alternative, such permission with respect to the testimony of the officials and employees of General Dynamics, such testimony of Selb's officers and employees and such testimony of the witnesses the Government intended to call at trial. The Government resisted upon the grounds that no particularized need was shown, and further indicated it would (and it did) furnish copies of transcripts of the testimony of each witness it called to testify at the trial. The trial court denied defendants' motions upon the ground there was no showing of a substantial or particularized need for the testimony requested, with the reservation that if during the course of the trial a particularized need developed, upon renewed motion, the court would in all probability grant the motion. 2

We are satisfied that the trial court's ruling was correct. Dennis v. United States, 384 U.S. 855, 868-875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). It was in accord with the rule well established in this Circuit. National Dairy Products Corp. v. United States, 384 F.2d 457 (CA8 1967); United States v. Cole, 449 F.2d 194, 198 (CA8 1971); United States v. Harflinger, 436 F.2d 928, 935 (CA8 1970).

Pretrial Conferences...

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