U.S. v. Blecker

Citation657 F.2d 629
Decision Date27 August 1981
Docket Number80-5015,Nos. 80-5014,s. 80-5014
Parties29 Cont.Cas.Fed. (CCH) 81,838 UNITED STATES of America, Appellee, v. Herbert G. BLECKER, Appellant. UNITED STATES of America, Appellee, v. ICARUS CORPORATION, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Jacob A. Stein, Washington, D. C., Plato Cacheris, Alexandria, Va. (Robert F. Muse, Washington, D. C., on brief), for appellants.

Frank J. Marine, Dept. of Justice, Washington, D. C. (Justin W. Williams, U. S. Atty., Alexandria, Va., William S. Lynch, Dept. of Justice, Washington, D. C., on brief), for appellee.

Before HALL and PHILLIPS, Circuit Judges, and G. Ross ANDERSON, Jr., United States District Judge, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

Icarus Corporation (Icarus) and its president, Herbert Blecker, challenge the convictions of each on six counts of presenting false claims to an agency of the United States in violation of 18 U.S.C. § 287 and Icarus' conviction on two counts of mail fraud in violation of 18 U.S.C. § 1341. Icarus and Blecker contend that venue was improper in the United States District Court for the Eastern District of Virginia. They further argue that there was insufficient evidence to support the convictions for either submitting false claims or mail fraud and that remarks made by the prosecutor in his summation to the jury effectively deprived them of a fair trial. We find all the contentions of the defendants to be without merit and accordingly affirm their convictions.

I

Briefly stated, the government alleged in its indictment of Icarus and Blecker that the defendants submitted invoices for fees based on false resumes to the Computer Sciences Corporation (CSC) knowing that CSC, in turn, would present the claims to the General Services Administration (GSA) for payment. Icarus was also charged with mail fraud in causing these invoices to be mailed to a CSC office in California.

The evidence presented at trial tended to show that, in March 1972, CSC was awarded a multimillion dollar contract by the GSA to provide federal agencies with computer and data processing services. Under the terms of this National Teleprocessing System (NTS) contract, CSC provided all the normal supply requirements for computer services for most of the federal government. CSC was authorized to subcontract for consulting services that, under Schedule J of the NTS contract, were to be paid for at rates based upon the consultants' education and experience.

In 1973, CSC subcontracted for consulting services from Icarus. At this time Blecker was told by a CSC official that rates were set according to very specific requirements for education and experience and was given a copy of the NTS contract. Blecker then instructed a number of his employees to embellish their resumes with additional schooling and experience and had the resumes of other employees enhanced without their knowledge. These false resumes were then taken from Icarus' office in Maryland to an official at CSC's Rosslyn, Virginia office for use in computing consultant fees.

In order to receive compensation for services performed under the NTS contract, Icarus was required to prepare and submit invoices to CSC on a monthly basis. At its Rosslyn office, CSC employees checked the rates billed on the Icarus invoices with the resumes of Icarus employees to determine whether Icarus had billed the approved rate for those employees. CSC employees then made the necessary computations and prepared a billing sheet. Information from the billing sheet was transmitted via computer from the CSC office in Rosslyn to the CSC accounting office in El Segundo, California. There, CSC employees prepared a bill for the GSA from the information contained in the Icarus invoices and billing sheets. The bills were then mailed back to the CSC offices in Rosslyn, from which they were hand delivered to the GSA office in Washington, D.C. CSC employees also mailed the Icarus invoices from its Rosslyn office to its California office, where CSC employees used the invoices to prepare a check payable to the order of Icarus. These mailings were the subject of the mail fraud charges.

Throughout the presentation of their defense to the false claims charges, Icarus and Blecker attempted to introduce evidence that the Government got its money's worth from the services billed by Icarus. The court, however, excluded as irrelevant any testimony about the value of the services performed by Icarus, and it instructed the jury to this effect. The court also refused to give an instruction that the jury should consider whether the "puffing" of resumes engaged in by Icarus was a common business practice for which it should not be held criminally liable.

During the course of his closing argument, the prosecutor urged the jury not to allow the defendants to cheat, lie, scheme and defraud and to show the defendants "that crime does not pay." He also remarked at one point that, while Icarus paid its employees at one rate, "(w)e had to pay more." When the defendants objected to this statement, the court took the precaution of instructing the jurors that they were not to feel they had a personal stake in the outcome of the case. The case was subsequently submitted to the jury, and it returned verdicts of guilty against Icarus and Blecker on the false claims counts and against Icarus on the mail fraud counts.

II

The defendants contend at the outset that their conviction on the false claims counts in the Eastern District of Virginia was unlawful because that court lacked venue to try those charges. The sixth amendment unequivocally mandates trial in the "State and district wherein the crime shall have been committed," and proof of venue is therefore an essential part of the government's case without which there can be no conviction, United States v. Jones, 174 F.2d 746, 748 (7th Cir. 1949). When, as in the present case, however, the statute defining the substantive offense "does not indicate where Congress considered the place of committing the crime to be, the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946) (citations omitted). In determining the act or acts constituting the crime, we have commonly focused on the verbs employed in the statute defining the offense. See, e. g., United States v. Walden, 464 F.2d 1015, 1018 (4th Cir. 1972); Newton v. United States, 162 F.2d 795, 796 (4th Cir. 1947). Finally, both the courts, see, e. g., United States v. Johnson, 337 F.2d 180, 194 & 194 n.22 (4th Cir. 1964), and Congress, 18 U.S.C. § 3237, have recognized that, when the crime is composed of distinct parts or is begun in one district and completed in another, venue may be proper in more than one district.

Applying these well-settled principles to the facts of this case, we must look first to the language of the false claims statute itself. That statute provides that any person who "makes or presents" a false claim to any agency of the United States is guilty of a crime. Thus, venue lies to prosecute a violator of this statute in either the district in which the claims were made or prepared, see, e. g., United States v. Herberman, 583 F.2d 222, 227 (5th Cir. 1978), or the one in which they were presented to the government, see, e. g., United States v. Valenti, 207 F.2d 242, 245 (3d Cir. 1953). Venue in the present case was therefore unquestionably appropriate in the District of Maryland in which the false claims were prepared or in the District of Columbia in which they ultimately came to rest with the GSA.

The defendants argue, however, that venue could not possibly lie in the Eastern District of Virginia, which the claims only "passed through." In support of their position, the defendants rely heavily on Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), and Reass v. United States, 99 F.2d 752 (4th Cir. 1938). The courts in both these cases restricted venue solely to the district in which a false statement was actually submitted to or filed with a governmental agency. Travis, 364 U.S. at 635-37, 81 S.Ct. at 361-62 (venue restricted to District of Columbia in which union official required to file affidavit with NLRB declaring that he was not a communist pursuant to 29 U.S.C. § 159(h)); Reass, 99 F.2d at 753-55 (venue restricted to Eastern District of Pennsylvania in which defendant hand delivered false statement for purpose of influencing action of Federal Home Loan Bank in violation of 12 U.S.C. § 1441(a)). However, the courts have narrowly construed Travis to apply only in the context of the unique statutory language dealt with in that case, see, e. g., United States v. Natelli, 527 F.2d 311, 326 (2d Cir. 1975), and in Reass we expressly refused to pass on the question "whether the offense would have been cognizable in West Virginia, if the defendant had entrusted the application to the mails in Wheeling for delivery to the bank in Pittsburgh," Reass, 99 F.2d at 755.

Neither the Travis nor the Reass court dealt with the clearly distinct context with which we are confronted in the present case, in which the false claim was submitted to an intermediary in one district who paid the claim and then transmitted a claim for reimbursement based on that payment, as a matter of course, to a government agency in another district. Presented with a similar factual situation, the Second Circuit has implied that venue is proper in either the district in which the false claim is submitted to the intermediary or the district in which the intermediary transmits the false claim to the agency. United States v. Candella, 487 F.2d 1223, 1227-28 (2d Cir. 1973). We are persuaded to the same result.

The last act taken by the defendants in committing the crime of submitting false claims to the...

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