U.S. v. Greene, s. 87-5532

• Decision Date: 23 November 1987
• Docket Number: Nos. 87-5532,s. 87-5532
• Citation: 834 F.2d 86
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Henry V. GREENE, III, a/k/a Hank Greene, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Henry V. GREENE, III, a/k/a Hank Greene, Defendant-Appellant. (L), 87-5533.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 86

834 F.2d 86

UNITED STATES of America, Plaintiff-Appellant, v. Henry V. GREENE, III, a/k/a Hank Greene, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Henry V. GREENE, III, a/k/a Hank Greene, Defendant-Appellant.

Nos. 87-5532(L), 87-5533.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 9, 1987.

Decided Nov. 23, 1987.

Jerry Wayne Miller, Asst. U.S. Atty. (Charles R. Brewer and Thomas J. Ashcraft, U.S. Attys., Asheville, N.C., on brief), for plaintiff-appellant.

Erwin N. Griswold and George Taylor Manning (Adrian Wager-Zito, Jones, Day, Reavis & Pogue, Washington, D.C., Robert B. Long, Jr., Long, Parker, Payne & Warren, P.A., and Ronald W. Howell, P.A., Asheville, N.C., on brief), for defendant-appellee.

Before MURNAGHAN, CHAPMAN and WILKINSON, Circuit Judges.

CHAPMAN, Circuit Judge:

Henry V. Greene, III was the general manager of Stencel Aero Engineering Corporation (Stencel) a manufacturer of ejection seats for military aircraft. He, together with Stencel and various officers of Stencel, was indicted for conspiracy to submit false claims to the Department of Defense (DOD), and for making false statements and claims to DOD. The other defendants either pled guilty or were convicted in a separate trial. Greene was tried and convicted of all counts, but he was successful in obtaining a new trial on the ground that certain exhibits, which had not been admitted into evidence, inadvertently went into the jury room during its deliberations. Pursuant to 18 U.S.C. Sec. 3731 ¹ the government appeals the order granting a new trial. In addition to his motion for a new trial, Greene made a motion for judgment of acquittal under Fed.R.Crim.P. 29(c) ² upon the ground that the evidence against him was not sufficient to convict him, and that to require another trial would violate his right not to be placed in jeopardy twice for the same offense. The district judge denied this motion and Greene has cross-appealed.

Initially there was a question as to the appealability of the denial of the Rule 29(c) motion, but this issue was abandoned. We hold (1) that there was no error in the granting of the new trial to the defendant, (2) that our court has jurisdiction to consider the defendant's cross-appeal, and (3) that the district court did not err in denying the defendant's Rule 29(c) motion for acquittal.

I

Stencel Aero Engineering Corporation manufactured ejection seats for military aircraft and did a large part of its business with the United States Department of Defense. In the dealings between DOD and Stencel three different contracts were used: a fixed price contract, a cost-plus contract, and contracts not yet negotiated. Under cost-plus contracts and contracts not yet negotiated DOD paid Stencel approximately 290 percent of Stencel's labor costs and the Stencel employee timecards were the basic accounting "source documents" in determining labor costs. The indictment charged that appellant Greene and other officials and employees of Stencel conspired to overcharge DOD by increasing the number of hours actually worked on various contracts. This was done by destroying the original timecards and substituting inflated timecards and by transferring time between different contracts so as to overcharge DOD.

From 1976 to 1979 appellant Greene was controller of Stencel. In 1979 he became general manager of the corporation and he was replaced as controller by Jonathan Tweit. Greene trained Tweit in the duties and responsibilities of the controller. In 1980 Michael Hobbs was employed as president of Stencel. In 1981 Paul Allison was employed as vice president in charge of production. Jared Christensen was the corporation's contracting officer until his departure in 1981. Alma Ann Mercer was a computer operator for the company, and Laura Jean Rowe was a computer operator and data processing manager for the company. In 1984 John Gales was chief accountant for Stencel and upon learning that the original timecards were being discarded and were being replaced by other cards showing job numbers other than those shown on the original timecards, he contacted the auditors for DOD. Following an investigation, various officers and employees of Stencel were indicted.

II

Approximately thirty minutes into its deliberations, the jury requested that the exhibits be sent into the jury room. Hundreds of exhibits had been introduced during Greene's trial, and there were documents in the courtroom that had been exhibits used by the government in the trial of Tweit and Allison, but some of these had not been introduced at Greene's trial. There was confusion about the exhibits and 21 exhibits, not offered or admitted into evidence against Greene, went into the jury room. Six of these exhibits were claims of Stencel for payment and five were checks issued by DOD in payment of such claims. These 11 exhibits were viewed by the jury. The remaining ten exhibits were copies of contracts and were not viewed by the jury during its deliberations. The six unadmitted claims submitted by Stencel to DOD for payment totaled $969,029.85 and the five unadmitted treasury checks issued in payment of these claims totaled $736,553.85. The mistake of sending these documents into the jury room during deliberations was not discovered until after the verdict was returned finding Greene guilty of all counts. Thereafter, Greene made a motion for a new trial and the trial judge granted the motion and set aside the guilty verdict. The trial judge found that the 21 documents, which had not been admitted into evidence, were sent into the jury room through inadvertence and that eleven of these documents were viewed by the jury. The court found that the government had not overcome the presumption of prejudice nor met its burden of showing that the error in submitting the documents to the jury was harmless beyond a reasonable doubt. The court was impressed by the large sums of money evidenced by these checks and claims for payment and he felt that the jury would have been influenced adversely against the defendant by such documents.

The motion for a new trial was made under Fed.R.Crim.P. 33 which provides in part:

The court on motion of the defendant may grant a new trial to that defendant if required in the interest of justice.

Such a motion is committed to the sound discretion of the district judge and is reviewable only in case of abuse. Howell v. United States, 172 F.2d 213, 216 (4th Cir.1949) cert. denied, 337 U.S. 906, 69 S.Ct. 1048, 93 L.Ed. 1718 (1949). We can find no abuse of discretion by the trial judge. We clearly stated the law of this circuit in United States v. Barnes, 747 F.2d 246, 250-251 (4th Cir.1984), as follows:

If prejudicial evidence that was not introduced at trial comes before the jury, the defendant is entitled to a new trial. (Citations omitted). The general...