572 F.2d 455 (5th Cir. 1978), 76-3715, United States v. Evans

Docket Nº:76-3715.
Citation:572 F.2d 455
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cecil Dwayne EVANS, Arnold Gene Tate, and Charles Edward Gent, Jr., Defendants-Appellants.
Case Date:May 04, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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572 F.2d 455 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cecil Dwayne EVANS, Arnold Gene Tate, and Charles Edward

Gent, Jr., Defendants-Appellants.

No. 76-3715.

United States Court of Appeals, Fifth Circuit

May 4, 1978

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Rehearing and Rehearing En Banc Denied June 16, 1978.

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Morris Jackson Hampton, Dallas, Tex., for Evans.

Jay J. Madrid, Dallas, Tex. (court-appointed), for Tate.

Kevin J. Clancy (court-appointed), David A. Donohue, Dallas, Tex. (Co-Counsel), for Gent.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, Robert C. Prather, Asst. U. S. Attys., Dallas, Tex., Nash W. Schott, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before THORNBERRY, Circuit Judge, and SKELTON, Senior Judge [*], and HILL, Circuit Judge.

JAMES C. HILL, Circuit Judge:

The six defendants in this case were charged in a complex sixteen count indictment. The trial lasted three weeks. On this appeal, three of the defendants, appellants, raise twenty-one separate points of error based on a transcript of over four thousand pages and a record of over one thousand one hundred pages. The exhibits entered into evidence were virtually too numerous to count. Faced with this extensive record and complex appeal, we shall begin at the beginning and go on till we come to the end; then affirm in part and reverse in part. 1

I. PROCEDURAL HISTORY

Collegiate Recovery and Credit Assistance Programs, Inc. ("CRCAP"), Cecil Dwayne Evans, Thomas Patrick Foley, III,

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Charles Edward Gent, Jr., Gene Allen Miller, and Arnold Gene Tate were named as defendants in a sixteen count indictment filed in the United States District Court for the Northern District of Texas on June 3, 1976. 2

Count one charged all the named defendants with having conspired to commit offenses in violation of Title 18, United States Code, Sections 201, 371, 641 by causing irregularities in the practices of the Office of Education, United States Department of Health, Education and Welfare and in the collection by CRCAP of delinquent student loans, which had been made pursuant to programs administered by the Office of Education. 3 The conspiracy was alleged to have continued from June 29, 1970, until the date of the return of the indictment.

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Counts two through seven charged CRCAP and its president, Tate, with misappropriation of student loan money, in violation of Title 18, United States Code, Section 641. Foley, Gent and Miller were charged in these counts as aiders and abettors in violation of Title 18, United States Code, Section 2. 4 Count eight alleged that Miller had accepted a bribe, aided and abetted by Tate and CRCAP, in violation of Title 18, United States Code, Sections 2, 201(c). Count nine charged Miller with the unlawful destruction of government records in violation of Title 18, United States Code, Section 2071(a). Counts ten and eleven charged, respectively, the payment by Tate and the acceptance by Evans of a two hundred dollar bribe in January of 1974, in violation of Title 18, United States Code, Sections 201(b), 201(c). Counts twelve and thirteen charged, respectively, the payment by Tate and the acceptance by Evans of a five hundred dollar bribe in October of 1973 in violation of Title 18, United States Code, Sections 201(f), 201(g). Counts fourteen and fifteen charged, respectively, the acceptance by Evans and the payment by Tate of unlawful compensation in violation of Title 18, United States Code, Sections 203(a), 203(b). 5 The sixteenth and final count of the indictment charged that Evans and Tate, aided and abetted by Gent and Foley, had traveled in interstate commerce to facilitate bribery and attempted bribery in violation of Title 18, United States Code, Sections 2, 1952. 6

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Prior to trial, the district court accepted a plea of nolo contendere by the corporate defendant, CRCAP; and, defendant Foley entered into a plea bargain to dispose of the charges against him. Defendant Miller proceeded to trial, but during the trial pleaded guilty to a lesser included offense comprehended within the bribery charge of count eight. Both Foley and Miller testified for the government. The remaining defendants, Evans, Gent and Tate, were convicted after a jury trial and have brought this appeal.

Appellant Evans was found not guilty of the alleged conspiracy of count one. 18 U.S.C.A. § 371. On count eleven, he was found not guilty of accepting a bribe under 18 U.S.C.A. § 201(c); but, he was found guilty of the lesser included offense of accepting a gratuity under 18 U.S.C.A. § 201(g). He was convicted on count thirteen for accepting an unlawful gratuity and on count fourteen for accepting unlawful compensation. 18 U.S.C.A. §§ 201(g), 203(a). On each of these three counts, Evans was sentenced to a term of two years imprisonment and a fine of five thousand dollars. Evans was also convicted, under count sixteen, of interstate travel to facilitate the violation of 18 U.S.C.A. § 201, Bribery of public officials and witnesses. 18 U.S.C.A. §§ 1952(a)(3), 1952(b)(2). On that count, he was sentenced to five years imprisonment and a five thousand dollar fine. He was also disqualified from ever holding any office of honor, trust or profit under the United States. All of Evans' sentences were made concurrent.

Appellant Tate was convicted of the conspiracy alleged in count one and sentenced to five years imprisonment and a five thousand dollar fine. 18 U.S.C.A. § 371. On each of counts two through seven, charging conversion of government property, he was convicted and sentenced to a ten year term of imprisonment and a ten thousand dollar fine. 18 U.S.C.A. § 641. He was convicted on count eight of aiding and abetting Miller in accepting a bribe and sentenced to ten years imprisonment and a ten thousand dollar fine. 18 U.S.C.A. § 201(c). Tate received the same sentence on his conviction under count ten for bribery of Evans. 18 U.S.C.A. § 201(b). On count twelve Tate was convicted of the payment of an unlawful gratuity to Evans and sentenced to two years imprisonment and a ten thousand dollar fine. 18 U.S.C.A. § 201(f). On count fifteen, charging payment of unlawful compensation to Evans, Tate was sentenced to two years imprisonment and a ten thousand dollar fine and, further, was disqualified from holding any office of honor, trust or profit under the United States. 18 U.S.C.A. § 203(b). On count sixteen, charging interstate travel in facilitation of bribery, 18 U.S.C.A. § 201, Tate was sentenced to a five year term of imprisonment and a fine of ten thousand dollars. 18 U.S.C.A. §§ 2, 1952(a)(3), 1952(b)(2). All of Tate's sentences were made concurrent.

Appellant Gent was convicted of the conspiracy charged in count one and sentenced to three years imprisonment and a fine of three thousand dollars. 18 U.S.C.A. § 371. He was acquitted of counts two through seven, charging conversion of government property. 18 U.S.C.A. § 641. On count sixteen, Gent was convicted and sentenced to three years imprisonment and a three thousand dollar fine for his interstate travel in aid of the bribery that violated 18 U.S.C.A. § 201. 18 U.S.C.A. §§ 2, 1952. Gent's sentences were imposed concurrently.

II. THE BASIC FACTS

The underlying facts, adduced at trial, depict long, complex and involved dealings. We detail this chronology to provide an evidentiary background for our decision. 7 From prior to June 29, 1970, until February 6, 1975, the corporate defendant, CRCAP, was a collection agency whose clients were the holders of delinquent student loan contracts. About fourteen per cent of the loans assigned to CRCAP involved non-

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government sources exclusively. The remainder of the loan accounts turned over to CRCAP for collection involved two federal student loan programs. About twelve percent of CRCAP's accounts involved Federally Insured Student Loans ("FISL") and about seventy-three per cent involved National Defense Student Loans, later called National Direct Student Loans ("NDSL"). CRCAP generally charged its clients a collection fee, by deducting a portion of the amount collected from each delinquent borrower before remitting collections to the educational institutions which employed the corporation's services.

The two federal loan programs are administered by the Office of Education, United States Department of Health, Education, and Welfare. FISL loans are extended primarily by commercial lenders, including banks, in accordance with government guidelines. 8 A loan which is approved by H.E.W. receives an insurance commitment from the government. If an insurance loan remains in total default for one hundred-twenty days, the lender may turn over the loan to the Office of Education, H.E.W. which pays the lender and undertakes to collect the loan from the student. In addition, the lender receives a "special allowance" from the government while the loan is outstanding. In many cases, the government also pays interest on the loan while the student is enrolled in school.

The NDSL program employs funds appropriated to H.E.W. by act of Congress. The monies are placed in a separate account, ninety per cent by H.E.W. and ten per cent by the educational institutions. Loans made with these funds must meet criteria established by Congress and H.E.W. As with the FISL loans, the government pays the interest while the borrower remains in school. The NDSL funds are a revolving fund; repaid loans are returned...

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