Apel v. United States

• Decision Date: 12 August 1957
• Docket Number: No. 15607.,15607.
• Parties: Melvin A. APEL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

247 F.2d 277 (1957)

Melvin A. APEL, Appellant, v. UNITED STATES of America, Appellee.

No. 15607.

United States Court of Appeals Eighth Circuit.

August 12, 1957.

COPYRIGHT MATERIAL OMITTED

Alfred A. Beardmore, Charles City, Iowa, for appellant.

Philip C. Lovrien, Asst. U. S. Atty., Sioux City, Iowa (F. E. Van Alstine, U. S. Atty., Sioux City, Iowa, with him on the brief), for appellee.

Before GARDNER, Chief Judge, JOHNSEN, Circuit Judge, and DONOVAN, District Judge.

JOHNSEN, Circuit Judge.

Appellant was convicted by a jury and fined $2500 by the court, for violation of 18 U.S.C. § 1001.

That section provides: "Whoever, in any matter within the jurisdiction of any department or agency of the United States, knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statements or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The indictment had charged in substance that appellant, in delivering to the Commodity Credit Corporation the corn mortgaged by him under two government price-support loans, for the purpose of satisfying such loans, had included, in his delivery under each loan, corn not covered by the mortgage, and had willfully and knowingly failed to disclose this fact to the agents and officials of the Commodity Credit Corporation, in order that he might receive payment for the excess at the government's settlement value.

The first contention made for reversal is that the evidence was insufficient as a basis for a conviction, and that the court therefore erred in denying appellant's motion for a directed verdict of acquittal. We think that the evidence legally entitled the question of appellant's guilt to be submitted to the jury, and that it amply sustains the verdict of conviction which the jury returned.

On such an appellate contention, we must treat all questions of conflict in the evidence and of credibility among the witnesses as having been resolved by the jury against the appellant and must also accord to the government the benefit of every favorable inference which it is reasonably possible to draw from any relevant facts and circumstances of which there is some substantial proof. Where it thus appears from the record that there exists probative substance on each salient element of the offense, from which reasonable minds could, either directly or inferentially arrive at the conclusions implicit in the jury's verdict of guilt, we cannot be asked to set aside the conviction as being unsustained legally by the evidence. McKenna v. United States, 8 Cir., 232 F.2d 431. See also Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720.

Here, as to the two mortgage loans involved, Nos. 1580A and 1653A, the record contains direct evidence that corn had been sealed under the first loan in the pledged amount of 2568 bushels and under the second in the pledged amount of 564 bushels, but that appellant, in satisfying the loans through delivery of the corn, had made delivery under the first loan of 3333.21 bushels and under the second of 963.57 bushels — excesses respectively of 765.21 bushels (almost 30%) and of 399.57 bushels (almost 71%). The elevator man, to whom delivery was made as Commodity Credit's agent, testified that he had received and credited the corn in accordance with the indication or statement made by appellant as to the seal or loan number to which each delivery was applicable.

There further was direct evidence entitling the jury to believe that the government sealer had correctly measured the dimensions of the cribs on the making of the loans, and that the deductions made by him in cubic content, for the factors of husks, ventilators, ties and bracing, was of such substantial accuracy, in relation to the particular corn, as to leave no room for reasonable likelihood that the amount of the excess delivered had in the case of either loan come from the sealed crib. Beyond the testimony of the sealer, it was shown, without objection, through the County Agricultural Stabilization and Conservation Office Manager, that his experience in the receiving of corn under such loans generally had demonstrated that the formula and rules used in arriving at the quantity of corn in a crib for sealing purposes were productive of practicably accurate results, and that, "when corn is shelled and delivered, the number of bushels delivered is usually very close to the number of bushels measured and sealed".

In this connection, it incidentally may be noted that, in the case of a third corn loan (not involved in the indictment charge), which appellant concurrently had and about which he introduced evidence for other purposes, there had been a variance, on his delivery of the corn, according to the government's records, of only 41 bushels from the computed quantity of 1161 bushels sealed, or a difference of less than 3½%.

Again, on appellant's attempt to prove that the cribs under the two loans involved had capacities greater, and so should be regarded as in fact having contained more, than the amounts of corn for which they were sealed, one of his witnesses testified to a capacity of 679 bushels for the crib which had been sealed for 564 bushels, if no deduction was made for studdings, ties and braces — but this asserted maximum capacity of 679 bushels, with no deduction for structural incidents or quantity of husks existing on the specific corn, still fell 40% short of being able to hold the 963.57 bushels which the government's elevator man testified that appellant had delivered as purportedly having come from the particular crib.

Furthermore, the government's evidence showed a number of other circumstances, which the jury could view as having a collateral or corroborative significance, in its appraisal of whether appellant had in fact included other corn in his deliveries under the two loans involved and had knowingly and willfully failed to disclose this fact, or whether, as he claimed, he was simply an innocent victim of circumstances, from improper computations having been made by the government's agent of the quantities of corn which were being sealed, and from erroneous crediting having been engaged in by the elevator man, in the case of loan No. 1653A, of some of the corn that belonged to the uninvolved third loan referred to above, of which he was at the same time making delivery.

One of these circumstances was that the deliveries, which the government claimed that appellant had indicated were being made under the two loans involved, included a substantial quantity of corn that was below sealable grade, and that the quantity of such low-grade corn was more than equal to the excess amount of corn which the government claimed existed in the loan deliveries. It also was shown that appellant had a crib of low-grade corn, adjacent to the crib under loan No. 1653A, on which his application for a loan had been rejected, at the time the two loans here involved were made, because of the unsealable grade of the corn, but which crib he had engaged in shelling about the same time as the corn under loan No. 1653A. And relatedly, it was additionally shown that on one occasion when the government's agent had gone out to make a routine check of the status of the sealed cribs during the loan period, he found appellant's hired men removing corn from the crib under loan No. 1653A, for which act appellant made the explanation that he had forgotten that it was this crib, and thought it was the adjacent crib (of low-grade corn), which was under seal.

Enough has been said to indicate, we think, that the trial court was not required to direct the jury to acquit appellant as a matter of law, on his claim of error on the part of the government's sealer in measuring the cribs and computing their corn contents and of mistake or misunderstanding on the part of the government's elevator man in having credited an excess of 399.57 bushels to loan No. 1653A instead of to the third loan that he had (as to which he was under no indictment curb), and in relation to the testimony which he produced as to his good character. We do not deem it necessary, in demonstrating that the verdict rested on substantial evidence, to set out the details of appellant's evidence, which the jury apparently did not accept. His personal testimony, that he had told the elevator man that the 399.57 bushels referred to were being delivered and should be credited under his third loan, instead of on loan No. 1653A, gave rise merely to a conflict with that of the elevator man and a resulting question of credibility, which it was for the jury to resolve.

Also, in its determination of the matter of appellant's guilt generally involving his knowledge and willfulness, the jury was at liberty to find significance in the facts (1) that the explanation attempted to be made by him of the 30% excess of corn which admittedly was delivered by him under loan No. 1580A was simply that the crib had a greater capacity than the quantity of corn for which it was sealed and so necessarily involved a mistake, and (2) that a shifting by the jury of the excess of 399.57 bushels from loan No. 1653A to the third loan would mean that appellant, a large-scale farmer, with previous experience in price-support loans, had, without protest, allowed the government to take a...