U.S. v. Richmond

• Decision Date: 28 February 1983
• Docket Number: Nos. 82-1257,s. 82-1257
• Citation: 700 F.2d 1183
• Parties: 30 Cont.Cas.Fed. (CCH) 70,859 UNITED STATES of America, Appellee, v. Lloyde W. RICHMOND, Jr., Appellant. UNITED STATES of America, Appellee, v. Rodney J. RICHMOND and Elwood P. Richmond, Appellants. UNITED STATES of America, Appellee, v. RICHMOND ENGINEERING, INCORPORATED, Appellant. to 82-1259.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1183

700 F.2d 1183

30 Cont.Cas.Fed. (CCH) 70,859

UNITED STATES of America, Appellee, v. Lloyde W. RICHMOND, Jr., Appellant.

UNITED STATES of America, Appellee, v. Rodney J. RICHMOND and Elwood P. Richmond, Appellants.

UNITED STATES of America, Appellee, v. RICHMOND ENGINEERING, INCORPORATED, Appellant.

Nos. 82-1257 to 82-1259.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 16, 1982.

Decided Feb. 28, 1983.

Ralph F. Carter, Degnan, McElroy, Lamb, Camrud, Maddock, & Olson, Ltd., Grand Forks, N.D., for Richmond Engineering, Inc. and Lloyde Richmond, Sr.

Robert Vogel, Grand Forks, N.D., for Rodney J. Richmond and Elwood P. Richmond.

Bruce E. Bohlman, Murray, Olson, Larivee, Bohlman & Engen, Ltd., Grand Forks, N.D., for Lloyde Richmond, Jr.

Rodney S. Webb, U.S. Atty., Lynn E. Crooks, Asst. U.S. Atty., Fargo, N.D., for appellee.

Before ROSS, McMILLIAN and ARNOLD, Circuit Judges.

ROSS, Circuit Judge.

Appellants, Lloyde W. Richmond, Jr., Rodney J. Richmond, Elwood P. Richmond and Richmond Engineering, Inc., were indicted on ten counts of making false statements in violation of 18 U.S.C. Sec. 1001 (1976). ¹ In addition, all individual appellants were indicted on one count of conspiracy to commit the violations charged in counts 1 through 10. See 18 U.S.C. Sec. 371 (1976). Counts 1 through 9 involved false statements made in invoices submitted to various governmental bodies; count ten essentially involved concealing material facts in construction plans and specifications submitted to a federal agency for funding. On December 19, 1981, after a nineteen day trial, a jury found all appellants guilty on six counts of making false statements (counts 1 through 6) and found all individual appellants guilty on the conspiracy count relating to those substantive counts. Only appellants Lloyde Richmond, Jr. and Richmond Engineering, Inc. were found guilty on count ten. ² The district court ³ entered judgments of conviction in accordance with the jury verdict on February 8, 1982.

Appellants have raised numerous issues on appeal including challenges to the jury instructions, evidentiary rulings, and the sufficiency of the evidence. For the reasons set forth herein we reverse the convictions of all appellants on the count eleven conspiracy charge, and reverse the convictions of appellants Rodney Richmond and Lloyde Richmond, Jr. on the false statements counts 1 through 6. The remaining judgments of conviction are affirmed.

I. General Background

The individual appellants, along with their father, Lloyde Richmond, Sr., are the principle owners, officers and management employees of Richmond Engineering, Inc., a construction engineering consulting firm in Grand Forks, North Dakota. In addition to providing services to private clients, the firm has represented several cities and counties in North Dakota. Lloyde Richmond, Sr. is the president of the corporation and has been primarily responsible for the billing of accounts. He is also a registered engineer and has served as the city engineer in cities like Grafton, North Dakota, or as a consulting engineer in various counties. Lloyde Richmond, Jr., a registered engineer, is the secretary of the corporation and has primarily worked as the chief design engineer. Rodney Richmond, a registered engineer and vice-president of the corporation, has been primarily involved in the corporation as a field engineer responsible for field inspections. Elwood Richmond is the treasurer of the corporation and has been primarily involved with the office management functions of the corporation, including bookkeeping and the billing process.

Count ten, on which only Lloyde Richmond, Jr. was convicted, was based on events arising out of a flood in Grafton, North Dakota, in 1979. As a result of a flood, the city sought funding assistance from the Federal Emergency Management Agency (FEMA) to repair damage to streets. Apparently, during late 1979 and early 1980 a question existed as to exact areas that would be eligible for federal funds. Richmond Engineering, Inc. represented the city in its application for funding, and Lloyde Richmond, Jr. was primarily involved in the application process and preparing the plans, specifications, and bidding forms relating to the Grafton street repair project. Although the details surrounding count ten will be discussed in greater detail below, essentially the government's charge under 18 U.S.C. Sec. 1001 of "willful and knowing concealment" in relationship to this project was based on the fact that two sets of plans had been prepared by Richmond Engineering. One set of plans, upon which contractors' bids were based, contained repair work on areas that were ineligible for FEMA funding; another set of plans, which was submitted to FEMA in the city's application, did not contain the ineligible work areas.

Counts 1 through 6, on which all appellants were convicted, arose out of a federal investigation of Richmond Engineering which commenced in July 1980. Under Richmond's accounting system, invoices submitted to Richmond customers were generally prepared by Lloyde Richmond, Sr. from time summaries. These summaries were generally prepared by Elwood Richmond from the individual timecards submitted by Richmond's employees. Hours entered on timecards were used as a basis for employees' paychecks. In addition, hours worked on specific projects were extracted from the timecards and placed in the appropriate project time summaries.

The government audit revealed discrepancies between the hours entered on the individual timecards and the hours charged to specific project time summaries and eventually billed to customers. Among the discrepancies uncovered were: (1) hours entered on time summaries which were not supported by any timecards; (2) differences between the amount of time charged to projects on employee timecards and the amount of time charged on the project summary sheet; (3) hours entered on timecards for work on one project which were assigned to a different project on time summaries; (4) hours entered for one project on timecards being billed to two different projects on the summaries. According to the government's evidence, the discrepancies involving at least partially federally funded projects in counts 1 through 6 resulted in a total overcharge of $13,217.59.

II. Analysis

A. Jurisdiction of Federal Agency

Appellants maintain that their motions for directed verdicts of acquittal on counts 1, 3, 4, 5, and 6 should have been granted by the trial court because the government failed to prove that these counts involved false statements made in "any matter within the jurisdiction of any department or agency of the United States" as required in 18 U.S.C. Sec. 1001. Appellants note that all invoices were submitted to counties or cities and that the facts show that in the projects covered by these counts federal funds were not used to reimburse the counties for engineering fees (counts 1, 4, 5, and 6) or all federal funds had been expended prior to the time Richmond submitted its bill for payment (count 3). Apparently, appellants would have us hold that in order to be within agency jurisdiction for purposes of the false statements statute the false statements be must made directly to a federal agency and federal funds actually have to be used to pay the appellants. This is not the law.

"[T]he term 'jurisdiction' should not be given a narrow or technical meaning for purposes of Sec. 1001." Bryson v. United States, 396 U.S. 64, 71, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969) (citations omitted). In order to fall within agency jurisdiction, it is not necessary that the false statement in a particular matter be presented directly to an agency of the United States. See, e.g., United States v. Bass, 472 F.2d 207, 212 (8th Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973); Ebeling v. United States, 248 F.2d 429, 434 (8th Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957); United States v. Stanford 89 F.2d 285, 297 (7th Cir.1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979). It is sufficient if such a statement is made in some intended relationship to a matter that is within the jurisdiction of a federal agency. Ebeling v. United States, supra, 248 F.2d at 434; United States v. Hooper, 596 F.2d 219, 223 (7th Cir.1979). This court has construed agency jurisdiction as "the power to make final or binding determinations * * *, i.e., the power to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem * * *." Friedman v. United States, 374 F.2d 363, 367-68 (8th Cir.1967). See also United States v. Diaz, 690 F.2d 1352, 1357 (11th Cir.1982) (jurisdiction for purposes of section 1001 can be defined broadly as the power to act).

All federal-aid highway projects in counts 1, 3-6 involved Federal Highway Administration participation, with 50% or more of the costs of projects being paid by federal funds. Furthermore, the Administration had substantial supervisory authority over each project to insure that construction, safety and cost standards were met, and the failure to meet these standards in a project could result in the withdrawal of federal funding or other administrative action. See 23 U.S.C. Secs. 101-156, 103; 23 C.F.R. Secs. 1.37, 16.1-16.8 (1982); Record at VI, 156-58. See generally State Highway Commission v. Volpe, 479 F.2d 1099, 1112-14 (8th Cir.1973); Pennsylvania Department of Transportation v. United States, 643 F.2d 758, 762, 764 (Ct.Cl.), cert. denied, 454 U.S. 826, 102 S.Ct. 117, 70 L.Ed.2d 101 (1981). Because the statutory scheme of the Federal-Aid Highways Act clearly evidences the Administration's "power to make binding or final determinations" in matters relating to federal-aid highway projects, it cannot be seriously contended the agency jurisdiction for purposes of section 1001 was lacking.

B. Materiality

For essentially the...