U.S. v. Richerson

Citation833 F.2d 1147
Decision Date02 December 1987
Docket NumberNo. 86-3818,86-3818
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Patrick C. RICHERSON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert Glass, Glass & Reed, New Orleans, La., for defendant-appellant.

Lawrence Benson, Dennis Reich, Asst. U.S. Attys., John P. Volz, U.S. Atty., Jan Maselli, Peter G. Strasser, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, JOHNSON, and WILLIAMS, Circuit Judges:

GOLDBERG, Circuit Judge:

Found guilty of conspiracy to commit mail fraud in violation of 18 U.S.C. Sec. 371 and two counts of attempted willful tax evasion in violation of 26 U.S.C. Sec. 7201, Patrick C. Richerson appeals, asserting as grounds for reversal: (1) that, because the Government charged one conspiracy and proved, if any, three, there was a prejudicial variance between indictment and proof on the conspiracy count; (2) that the mail fraud instruction incorrectly stated the law as subsequently set forth in McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); and (3) that the instructions to the jury on the tax issue were prejudicially erroneous. Finding no merit in any of these contentions, we affirm the convictions.

A federal grand jury returned a ten count indictment against Richerson. Count One charged a conspiracy to commit mail fraud in violation of 18 U.S.C. Sec. 371. 1 Counts Two through Eight charged substantive mail fraud violations of 18 U.S.C. Sec. 1341. 2 Counts Nine and Ten charged attempted willful tax evasion in violation of 26 U.S.C. Sec. 7201 3 for the tax years 1980 and 1981.

At the close of the Government's case the district court entered a judgment of acquittal on two of the seven substantive mail fraud counts--Counts Three and Four. The jury acquitted Richerson on all of the remaining substantive mail fraud counts--Counts Two, and Five through Eight. The jury, however, convicted Richerson on the conspiracy count and both of the tax evasion counts--Counts One, Nine, and Ten. 4

I. FACTS

Viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the facts are as follows. Pool Offshore Company ("Pool Offshore"), an oil drilling contractor, operated twenty to thirty offshore rigs in the Gulf of Mexico during the oil drilling boom of the late 1970s and early 1980s. These rigs were each worth over one million dollars and rented for $1,000.00 per hour. Vendors were anxious to lock in large volumes of business supplying parts and services to the drilling contractors, like Pool Offshore. A group of Pool Offshore employees capitalized on the vendors' desire to lock in Pool Offshore's business by steering that business to those vendors willing to pay the largest bribes. These vendors then recouped at least some of the bribes through false invoices submitted to Pool Offshore. As a result, various Pool Offshore employees fraudulently obtained cash and personal items at Pool Offshore's expense.

A. Cast of Characters

Like any play of several acts, the facts that we consider involve a large cast of characters. We introduce the leading characters at the outset and the remainder as they appear.

Pool Offshore hired the defendant, Patrick C. Richerson, to serve as Drilling Superintendent in 1975. After several interim promotions, Richerson became Pool Offshore's vice-president of operations on January 1, 1979. Richerson resigned on August 31, 1981. From September 1981 through July 1983 Richerson operated his own drilling company. He also served as executive vice-president of Baytron, Inc. from September 1981 through December 1982. Richerson rejoined Pool Offshore as executive vice president from August 9, 1983 until September 4, 1984.

In 1979, Richerson hired Henry Billiot, Sr. as Pool Offshore's electronics expert. Billiot, the only qualified electrical man at Pool Offshore, had authority to make all of Pool Offshore's electronic equipment purchases. Although Billiot reported to Richerson, no one at Pool Offshore had enough technical electronic expertise to question Billiot's purchasing decisions. While employed at Pool Offshore, Richerson and Billiot became close personal friends.

Billiot's long time friend Ebdon Rodriguez owned Ace Electric Motor Services, Inc. ("Ace"), a Pool Offshore supplier. Rodriguez testified that Ace paid approximately $300,000.00 in kickbacks to Billiot during Billiot's tenure at Pool. Rodriguez received approximately $100,000.00 through his participation in the Pool Offshore kickback scheme. Rodriguez also paid kickbacks to Billiot at another company before Pool Offshore employed Billiot.

B. Fraudulent Transactions--One Play Act or Three?

In Richerson's indictment and at his trial the Government characterized the Pool Offshore fraud as one conspiracy. On appeal, Richerson contends that the evidence actually proved that he was involved in three separate conspiracies, if any. Richerson argues that the first of these three separate conspiracies was limited to obtaining personal assets through Henry Billiot, Sr., Henry Billiot, Jr., Ebdon Rodriguez, Ace Electric, Universal Electric, and Primary Electric. Richerson contends that the second, separate conspiracy was limited to the loan he received from Louisiana Offshore Air-conditioning & Electrical Services, Inc. ("LOAES"), through Leonard Cable. Richerson asserts that a third, separate conspiracy was limited to the stock that he acquired in Baytron, Inc., through James Edwards.

1. Personal Assets Obtained Through Billiot, Rodriguez, Ace, Universal, and Primary. According to Richerson the first conspiracy was limited to obtaining kickbacks of personal assets through Billiot, Ebdon Rodriguez, Ace, Universal Electric Company, Billiot's son, Henry Billiot, Jr., and Primary Electric Service and Supply Company.

At trial, Billiot testified that Richerson asked him for various things and that he obtained these things through electrical vendors. The vendors then recovered their costs by submitting false or inflated invoices to Pool Offshore. For example, Billiot had a vendor deliver an ice maker to Richerson and submit an inflated invoice to Pool to cover the cost. At trial Richerson contended that Billiot was simply an extravagant, eccentric, wealthy genius who, liking him, gave him expensive gifts. The jury, by convicting Richerson on three counts, apparently rejected this argument.

Billiot testified that Richerson asked him to get a Jeep that Richerson had seen while visiting Ace. To get this Jeep, 5 Billiot paid an Ace employee approximately $15,000.00 with a check drawn on Universal Electric Company ("Universal"). 6 Ace repaid Universal for this $15,000.00. Ace then submitted false invoices, with false charges to a particular drilling rig, to Pool Offshore to recover this $15,000.00. Billiot arranged for approval of the false invoices by the drilling superintendent of the rig charged. Billiot approved the false Ace invoices himself. Finally Billiot had Richerson approve the false Ace invoices. 7 Pool Offshore then paid the false Ace invoices.

Billiot arranged the purchase of a new Chevrolet Corvette that Richerson asked for. Billiot told his son, Henry Billiot, Jr., to submit a false Primary Electric Service and Supply Company ("Primary Electric") 8 invoice to Pool Offshore for $19,110.00 to cover the cost of the Corvette. Billiot testified that Richerson approved this invoice after being told that it would cover the Corvette. Pool Offshore then paid this Primary Electric invoice and Primary Electric wrote a check to Universal for $18,459.72. The next day Billiot signed a Universal check payable to a Chevrolet dealer for $18,459.72. With this Universal check, Billiot, Jr. purchased the Corvette, signing the registration papers and bill of sale in Richerson's name. 9

Richerson, Billiot, Rodriguez and Billiot, Jr. had two meetings to discuss cover up plans after Pool Offshore and its parent, Enserch Corporation began to investigate Billiot's electrical equipment purchases. At one meeting Rodriguez testified that Richerson said that he "would give money out of his freezer to pay for Henry for the Corvette that night." At the second meeting Richerson suggested paying someone to stop the investigation.

2. Loan Obtained Through LOAES and Cable. Richerson states that the second conspiracy involved Leonard Cable and his company, Louisiana Offshore Air Conditioning & Electrical Services, Inc. ("LOAES"). LOAES sold equipment to Pool Offshore. Between 1979 and 1985 LOAES received from Pool Offshore a total of $2,499,000.00, representing more than 80% of LOAES's gross revenues for the period. Leonard Cable loaned 10 Richerson $10,000.00 in cash. Cable made the "loan" as a favor to Pool Offshore, and as a favor to Richerson himself so that Pool Offshore would continue to buy from LOAES.

Cable attempted to recoup this $10,000.00 through a false invoice submitted to Pool Offshore for "Cat-Eye explosion proof lights" for rig 454. Billiot called Cable and said that he could not justify those lights on that rig. Billiot instructed Cable to void the invoice and to call someone else at Pool Offshore to tell them that the lights "had been returned." Billiot then assisted two of Cable's employees in rebilling the $10,000.00. Cable also acknowledged that some of his employees had given kickbacks totalling approximately $40,000.00 to Pool Offshore employees and recouped these kickbacks through false invoices.

3. The Stock Obtained Through Baytron, Inc. According to Richerson, the third conspiracy involved Baytron, Inc. and its founder James Edwards. Richerson purchased 350 shares, or 35% of the outstanding stock, of Baytron, Inc. between 1979 and 1981. 11 After Richerson left Pool Offshore on August 31, 1981, Baytron employed Richerson as an executive...

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