516 F.2d 458 (5th Cir. 1975), 74-2628, United States v. Parr
|Citation:||516 F.2d 458|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Archer PARR, Defendant-Appellant.|
|Case Date:||July 24, 1975|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
James R. Gillespie, San Antonio, Tex., Charles A. McNelis, Washington, D. C., for defendant-appellant.
William S. Sessions, U. S. Atty., John E. Clark, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before WISDOM and DYER, Circuit Judges and KRAFT [*], District Judge.
WISDOM, Circuit Judge:
Archer Parr appeals his conviction on six counts of an indictment charging him with knowingly making false material declarations before a federal grand jury, in violation of 18 U.S.C. § 1623. 1
Duval County lies in the arid southeast part of Texas. Since 1959, the County Judge there, who is also the chief administrative and budget officer for the county, has been Archer Parr. The record makes it clear that he and his uncle, George Parr, were powerful political figures in Texas, and certainly the most influential men in Duval County. Water is important and was in short supply in that part of the country in the early 1960's. In Duval County the water and sewer system of the City of Benavides was a shambles, the facilities in San Diego were inadequate, and several communities of this Spanish-speaking area were without water entirely. Some years earlier Benavides had defaulted on its municipal bonds, infecting every governmental unit in the area with an unfavorable bond rating. There did exist a non-functioning water district, the Jim Wells and Duval County Conservation & Reclamation District. Archer Parr, Fender, a bond dealer, and Gibson, an attorney and specialist in municipal bonds, put together a new political entity, the Duval County Conservation & Reclamation District (the District), to succeed the defunct entities, and to obtain a reasonably good credit rating for the District's bonds. 2 The group had to secure legislation amending the statute covering the geographic area; arrange for the District to buy the bonds floated by the City of Benavides; divest the District of its gas facilities; testify at state hearings and file pertinent documents; provide for elections in the various political subdivisions; elect a board of directors; let drilling contracts; prepare a budget, a bonded indebtedness schedule, and a tax collection schedule; set up books; and provide for an assessment of property. The record shows beyond dispute that Archer Parr assisted in all of these. Gibson's law firm was paid a $75,000 fee. An engineering firm was paid $56,000. Fender made a handsome profit by marketing the bonds after purchasing them at their face value of $2,500,000. George and Archer Parr were paid $210,000 by Fender for their City of Benavides bonds, which were barred in bankruptcy. 3 There is no record of any payment to Archer Parr for his services, although Gibson testified that he was entitled to "a substantial fee".
The District's first board of directors, set up in 1965, consisted of Chapa, Garza, Julio Benavides, and Tovar. Benavides and Tovar are dead. The record shows that Tovar really ran the District; the other directors were figureheads. All checks were signed by Chapa and Tovar. The board hired Leopoldo Sepulveda as the office manager. His duties included reconciling the books at the First State Bank of San Diego, where the records were kept, and preparing checks to pay bills in the ordinary course of business. Mrs. Ellis, Archer Parr's half sister, also worked in the office. George Parr was retained as the District's lawyer at $1,000 per month.
In May 1972 a federal grand jury began looking into the affairs of the District, apparently to discover if George Parr was enriching himself through the District without paying income taxes on the benefits. In the course of its investigation, the grand jury discovered a secret account, called the "Special Account" or the "Reserve Account", known only to the bank president Goldthorn, Tovar, Archer Parr, and George Parr. The record shows that every payment, not considering those to Archer Parr, was for an illegal purpose. For example, money flowed from this account for the improvement of George Parr's ranch, 4 the payment of a $57,850 promissory note made by Archer Parr's mother with the bank, and the drawing of a check for $2500 payable to Archer Parr's stepfather some 20 years after his death. 5 George Parr was indicted and convicted for income tax evasion. That conviction was affirmed. United States v. George Parr, 5 Cir. 1975, 509 F.2d 1381.
The grand jury foreman testified that the jury suspected that five payments to Archer Parr between 1966 and 1969 out of the Special Account, totalling $81,700, and denominated payments for legal fees, were really for the benefit of George Parr. This suspicion was based on the familial relationship between Archer and George Parr, the fact that they were once business partners, and their political association. Archer Parr appeared twice, asserted that these payments were legal fees, and disclosed in a letter between his grand jury appearances that he received a sixth payment of $39,800, out of the Operating Account on April 13, 1970, that was also a legal fee. In all Archer Parr received $121,500 from the District. 6
At Archer Parr's first appearance, he denied being employed by the District to
handle the legal work connected with its inception. He further stated that he had had nothing to do with the District for five or six years. He promised to provide any documentary evidence of his legal work and information of any payments he may have received from the District. By the time Archer Parr returned to the grand jury, it had decided to indict George Parr. Nonetheless, the grand jury questioned Archer Parr again about the purpose of the five payments out of the Special Account and about the sixth payment out of the Operating Account disclosed in Archer Parr's letter to the United States Attorney. Archer Parr also reported that he had no records, memoranda, calendars, briefs or other documents to substantiate his earlier statement that he was paid for legal services. The grand jury concluded that these payments were not for legal services, and indicted him on six counts of perjury. 7
Archer Parr was tried before a jury, found guilty, and sentenced to a total of 10 years in prison and fined $60,000. 8 We affirm.
THE SUFFICIENCY OF THE EVIDENCE
The principal issue in this appeal is the sufficiency of the evidence. This issue compels a close study of the record.
Archer Parr asks whether it is possible to prove beyond a reasonable doubt that someone did not do something. The gist of his argument is: "Absence of evidence of services legal and otherwise is not evidence that Parr did not in fact perform services legal and otherwise". The problem is complicated by the fact that the one person in the best position to know whether Archer Parr was being paid for his legal work, Jose Tovar, is dead. Archer Parr put it another way before the district court. He proved that he did some legal work, and that therefore he may be guilty of overcharging the District. This, he asserts, may be a crime, but it is not perjury. As is often the case, however, the outcome may turn on the way the issue is phrased. The real issue for the jury was whether the six payments in question were for legal services, not whether Archer Parr performed any legal services.
United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, 831 sets out the test for the sufficiency of the evidence as follows:
On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt.
The same test . . . should apply whether the evidence is direct or circumstantial
(W)e must accept as established all reasonable inferences that tend to support
the action of the jury, and any conflicts in the evidence must be resolved in favor of the jury verdict. 9
We must keep in mind that our review does not turn on whether this Court thinks the evidence is sufficient, but whether a reasonable jury could so conclude beyond a reasonable doubt. See 2 C. Wright, Federal Practice & Procedure § 467 at 259. Issues of credibility, the weight of evidence, and conflicts in evidence are, of course, matters for the jury. See 4 Jones on Evidence §§ 29:9-13 (6th ed. 1972). Furthermore, a jury may believe only part of a story, and disbelieve another part. United States v. Edwards, 5 Cir. 1974, 488 F.2d 1154, 1158. The standard of proof is the same in a § 1623 perjury case as any other criminal case. Indeed Congress made it clear that § 1623, 10 enacted as part of the Organized Crime Control Act of 1970, was intended to facilitate perjury convictions. H. R. No. 91-1549, 1970 U.S.Code Cong. & Admin.News, pp. 4008, 4024. See United States v. Lardieri, 3 Cir. 1974, 506 F.2d 319, 323.
The defendant actually bolstered the government's case, filled in the gaps, and resolved whatever doubts arguably appear in the prosecution's case-in-chief. 11 The grand jury's questions, the government's case, and the defendant's cross-examination all relate to the absence of legal services from 1967 to 1970. In his own defense, Archer Parr testified that the payments were not intended to compensate him for any work done during those years. Rather, he explained that they were installment payments on money owed him by the District, under a contract made with Tovar, for his efforts in organizing the District around...
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