602 F.2d 231 (9th Cir. 1979), 79-1074, United States v. Milton

Docket Nº:79-1074.
Citation:602 F.2d 231
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee MILTON, Defendant-Appellant.
Case Date:August 15, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 231

602 F.2d 231 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Lee MILTON, Defendant-Appellant.

No. 79-1074.

United States Court of Appeals, Ninth Circuit

August 15, 1979

Page 232

Rogers S. Wilson, Jr. (argued), Puget Sound Legal Assistance Foundation, Tacoma, Wash., for defendant-appellant.

Peter Robinson, Sp. Asst. U. S. Atty. (argued), Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE and ANDERSON, Circuit Judges, and MURRAY, [*] District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Milton was convicted on three counts of presenting false claims to a department of the United States in violation of 18 U.S.C. § 287. 1 On appeal, 2 Milton argues that the district court erred in failing to instruct the jury that an intent to defraud was an essential element of the crime. We disagree and affirm his conviction.

I. FACTS

Milton was the executive director of the Portland Progress House, a halfway house for federal prisoners. He was employed by the Progress House Association with the Rev. Leo Brown as his supervisor.

The Progress House entered into a contract with the Bureau of Prisons under which the Progress House was paid $25.00 per day by the U.S. Marshal's Office for each prisoner who resided in their facility. However, the Progress House was authorized to collect $15.00 per day rent from each resident prisoner. If this had been done, then the Progress House would have been required to deduct the amount of any rent received from the prisoners from the amount which was billed to the government.

At trial, it was shown that Milton had submitted claims for the full $25.00 per day without making the appropriate deductions for the amounts which had been collected from the prisoners.

Milton's defense was based on his denial of having any knowledge of the requirement that he was supposed to offset the rent collected from his claims to the government. He admitted that he had covered up his receipt of the extra money from his superior, Rev. Brown, but claimed that he did not conceal anything from the government. The government offered substantial evidence to show that Milton was aware of the requirement. Four witnesses refuted Milton's contention about lack of knowledge: the Rev. Brown, the U.S. Marshal, Milton's secretary, and the accountant for the Progress House.

II. QUESTION PRESENTED

The only issue raised on appeal is whether the charged offense, 18 U.S.C. § 287, requires proof of intent to defraud. If it is an element of the crime, then failure to instruct the jury would be error. 3

III. ANALYSIS

In support of this argument Milton principally relies upon United States v. Mead, 426 F.2d 118 (9th Cir. 1970), and United States v. National Wholesalers, 236 F.2d 944 (9th Cir. 1956), Cert. denied, 353 U.S. 930, 77 S.Ct. 719, 1 L.Ed.2d 724, where this court held that an intent to defraud was an element under the civil false claims statute (31

Page 233

U.S.C. § 231). After examining these cases, we find that they neither require nor justify reading a new element into the criminal false claims statute (18 U.S.C. § 287). 4

The Devitt and Blackmar instruction defining false, fictitious, and fraudulent is consistent with the approach we take in the present case. It provides that:

"A statement is 'false' or 'fictitious', if untrue when made, and then known to be untrue by the person making it or causing it to be made. A statement or representation is...

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