765 F.2d 1376 (9th Cir. 1985), 84-3082, United States v. Lane

Docket Nº:84-3082.
Citation:765 F.2d 1376
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas A. LANE, Defendant-Appellant.
Case Date:July 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1376

765 F.2d 1376 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas A. LANE, Defendant-Appellant.

No. 84-3082.

United States Court of Appeals, Ninth Circuit

July 16, 1985

Argued and Submitted April 1, 1985.

Page 1377

[Copyrighted Material Omitted]

Page 1378

Robert L. Zimmerman, Lorraine D. Gallinger, Asst. U.S. Attys., Billings, Mont., for plaintiff-appellee.

Charles F. Moses, Stephen C. Moses, Billings, Mont., for defendant-appellant.

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

Before WRIGHT, KENNEDY, and ANDERSON, Circuit Judges.

KENNEDY, Circuit Judge:

Thomas Lane appeals his conviction for conspiracy to defraud the United States by dishonest administration of a program under Title IV(A) and Title XX of the Social Security Act, 42 U.S.C. Secs. 601-619, 1397, in violation of 18 U.S.C. Sec. 371 (1982). We affirm.

Social Security Act Title IV(A) and Title XX funds are distributed to states to train state employees providing community services. During the period covered in the indictment, the State of Montana contracted with the University of Montana to administer its Title IV(A) and Title XX funds. Morton Arkava, Chairman of the University's Social Services Department, established the budget for Montana's training program, contracted with consultants to provide training workshops for the program, purchased instructional manuals for the workshops, and otherwise authorized the expenditure of Montana's grant funds.

In Idaho, the Department of Health and Welfare and certain certified state universities administered Title IV(A) and Title XX funds. Ronald Paulsen, Chief of the Department's Bureau of Training, was responsible for establishing the budget for Idaho's training program and authorizing the expenditure of Idaho's grant funds. In mid-1977, Arkava and Paulsen began hiring each other as outside consultants and purchasing instructional manuals from each other for the training programs with the understanding that they would maintain an equal gross dollar volume: for every dollar of work Arkava sent to Paulsen, one was returned by Paulsen to Arkava. Each prepared his bills for consulting services and instructional manuals by fabricating expenditures and costs to reach predetermined dollar amounts. Some of the instructional manuals for which the states were billed had been plagiarized.

The competitive bidding requirement at the Idaho Department of Health and Welfare made it increasingly difficult for Paulsen to award a large number of contracts to Arkava without raising suspicion. The two asked Thomas Lane, Chairman of the Department of Sociology, Anthropology, and Social Work at Idaho State University, to participate in their dollar-for-dollar scheme. As Project Director for the Title IV(A) and Title XX funds administered by the University, Lane could funnel more Idaho grant money to Arkava simply by authorizing contracts for his services. In return, Arkava would authorize contracts, equal in amount on a gross dollar basis, for Lane's services.

After a jury trial, Lane was convicted of conspiracy to defraud the United States Government and sentenced to five years probation with a condition that he make restitution to the government, half in cash, half in community services.

Page 1379

Lane's first contention on appeal is that the trial court's refusal to grant a continuance for more than four days violated his due process rights and his right to effective assistance of counsel. The denial of a motion for a continuance will not be reversed absent a clear abuse of discretion. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983); United States v. Clevenger, 733 F.2d 1356, 1359 (9th Cir.1984). To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense. United States v. Mitchell, 744 F.2d 701, 704-05 (9th Cir.1984); United States v. Maybusher, 735 F.2d 366, 369 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985); Clevenger, 733 F.2d at 1360.

Lane claims the 66-day pretrial period was inadequate because the case was complicated and his counsel's own schedule prevented him from adequately preparing for trial. With the four-day continuance, however, Lane's defense counsel had adequate time prior to trial to review the statements of the government's witnesses. See United States v. Jones, 612 F.2d 453, 455 (9th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). Further, Lane has not specified which witnesses his defense attorney would have interviewed, which documents and exhibits he was unable to examine, or what defenses he might have explored. See Mitchell, 744 F.2d at 705. As Lane has failed to demonstrate actual prejudice, the conviction may not be reversed on this ground.

Count 1 of the indictment charged that Lane, Arkava, Paulsen, and other named persons had violated 18 U.S.C. Sec. 371, which, in pertinent part, broadly prohibits conspiracies to "defraud the United States, or any agency thereof in any manner or for any purpose." Specifically, Count 1 charged Lane with participating in a conspiracy to defraud the United States of its right to have the grant program under Title IV(A) and Title XX of the Social Security Act administered honestly and fairly. Count 1 also alleged that one objective of the conspiracy was to present the United States with false claims for money. The indictment described the means used by the conspirators to defraud the United States: presenting claims for conducting training workshops and writing curricula knowing that a portion of the amount claimed and received was not for the services or materials provided, and receiving kickbacks for authorizing the purchase of instructional material....

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