718 F.2d 1505 (10th Cir. 1983), 82-2309, United States v. Neal

Docket Nº:82-2309.
Citation:718 F.2d 1505
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Herb NEAL, Defendant-Appellant.
Case Date:September 30, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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718 F.2d 1505 (10th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Herb NEAL, Defendant-Appellant.

No. 82-2309.

United States Court of Appeals, Tenth Circuit

September 30, 1983

Rehearing Denied Feb. 17, 1984.

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Gene Stipe, Oklahoma City, Okl. (Robert K. McCune, Oklahoma City, Okl., with him on brief) of Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, Oklahoma City, Okl., for defendant-appellant.

Susie Pritchett, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., Oklahoma City, Okl., also on brief), for plaintiff-appellee.

Before HOLLOWAY, McWILLIAMS and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a direct appeal by the defendant-appellant Herb Neal from his convictions on thirty-three counts of a thirty-four count indictment charging him with mail fraud and aiding and abetting mail fraud, in violation of 18 U.S.C. Sec. 1341 and 18 U.S.C. Sec. 2. 1 Neal was sentenced to terms of five years' imprisonment on each of his convictions, Count II to run consecutively to Count I and Counts III through XXII and XXIV through XXXIV to run concurrently to Count I. He was also fined $1,000.00 for each of the first two counts.

Viewing all the evidence, direct and circumstantial, together with all reasonable

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inferences therefrom, in the light most favorable to the Government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show the following:

I

Background

This case is one of many that arose from an extensive investigation by the F.B.I., the I.R.S., and the United States Attorneys for Oklahoma into payment to numerous county commissioners of kickbacks, by suppliers of equipment or materials purchased by the counties for road and bridge building and maintenance. During the period covered by the indictment Neal worked as a salesman for three companies in Ponca City, Oklahoma, that supplied such materials. All thirty-four counts were premised on allegations that Neal and others devised a scheme to defraud various counties and the citizens thereof "by depriving them of their right to have county business conducted openly, honestly, impartially, and free from corruption and undue influence by their elected County Commissioner and to use the ... mails in furtherance of the scheme." (I R. 93). Cf. United States v. Mandel, 591 F.2d 1347, 1362 (4th Cir.), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (bribery of public official satisfies fraud element of the mail fraud statute); United States v. Gann, 718 F.2d 1502, 1503 n. 2 (10th Cir.).

Seven different county commissioners testified at trial that they had received kickbacks from Neal. 2 (E.g., V R. 248-50; VI R. 322-24, 409, 483, 547-48, and 573). Some stated that they had received kickbacks on every purchase from Neal while others testified that the kickbacks were only occasional. Moreover, some commissioners testified that not all suppliers gave kickbacks but they always tried to do business with suppliers like Neal who did give kickbacks. (E.g., V R. 325). The payments generally approximated 10% of the purchase price. Some commissioners further testified that they had accepted "50-50 splits" from Neal, also known as "split" or "blue-sky" deals, in which the commissioner would order materials or supplies from Neal, the county clerk would issue a warrant, i.e., check, to Neal as payment for the goods, the goods would not be delivered, and the commissioner and Neal would split the amount of the warrant between themselves.

Oftentimes the kickback was agreed to before a purchase was consummated, but generally the agreement was tacit that a kickback would be forthcoming. The kickback payment generally occurred after the county clerk had mailed the warrant to Neal and the material or supplies were delivered. Furthermore, the kickbacks were paid in cash and in a surreptitious manner with no one present but Neal and the commissioner, frequently while the parties were alone in Neal's car. In addition, six county clerks testified that warrants in payment for materials or supplies were always mailed unless the supplier was local and personally picked up the warrant. (V R. 43, 50, 110, and 183). With respect to the counts on which these convictions resulted, mailing of the warrants was proved.

In his defense, Neal offered the testimony of several county commissioners to the effect that he never offered or paid them kickbacks, and that of several character witnesses who testified that Neal had a good reputation in his community. Neal also took the stand and testified that he had never paid a kickback, that the Government's witnesses were lying, and that some of the Government's witnesses had told him that they were simply going to tell the F.B.I. whatever they wanted to hear.

For reversal, Neal asserts that the trial court erred (1) in denying his motion for judgment of acquittal or in the alternative for a new trial because the evidence was

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insufficient to prove that the mails were used in furtherance of a scheme or artifice to defraud; (2) in overruling his motion in limine regarding evidence of...

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