Floyd v. Com.
| Decision Date | 22 November 1978 |
| Docket Number | No. 780435,780435 |
| Citation | 219 Va. 575,249 S.E.2d 171 |
| Parties | Gerald Gene FLOYD v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Billy J. Tisinger, Harrison & Johnston, Winchester, on brief, for appellant.
Marshall Coleman, Atty. Gen., Robert E. Bradenham, II, Asst. Atty. Gen., on brief, for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF, and COMPTON, JJ.
Gerald Gene Floyd was tried by a jury simultaneously upon eleven indictments charging conspiracy to commit grand larceny and eight indictments charging grand larceny. The jury, finding him guilty of seven of the conspiracy charges, and all eight of the grand larceny charges, fixed his punishment at confinement in jail for a total of twelve months and payment of fines in the aggregate amount of $3,000. Overruling Floyd's motions to set aside the verdicts as being contrary to the law and the evidence, the trial court entered judgments on the verdicts. On appeal the questions are limited to the sufficiency of the evidence, viewed, of course, in the light most favorable to the Commonwealth, and the admissibility of certain evidence.
In January, 1974, Floyd became Division Engineer for the Alexandria Division of the Southern Railway System. At that time, Robert M. Gibson was working for the Southern as Track Supervisor on the branch line running between Manassas and Harrisonburg. Under the supervision of the Division Engineer, it was Gibson's responsibility to maintain the Southern's tracks along the branch line. Gibson had a "timbering and surfacing (T & S) gang" of the Southern scheduled to retimber and resurface a portion of the track later in the year, but in accordance with general company practice, the services of an independent contractor were required to perform certain preliminary work before the T & S crew arrived. Floyd asked Gibson to recommend a contractor for this preliminary work, and Gibson reported that Benny Cooper, who operated a construction business, had expressed interest in doing contract work for the Southern. Gibson then arranged a meeting at Cooper's house in Woodstock attended by Floyd, Gibson, Cooper, and Cooper's wife, Judy, in February or March, 1974.
Gibson, who testified as a witness for the Commonwealth, said that at this meeting there was a discussion of the work to be done and the necessity for Cooper to invest money to buy equipment and employ laborers if he undertook contract work for the railway. Floyd told Cooper that he "could become a millionaire" as a railroad contractor. Gibson testified that neither he, nor Cooper, nor Floyd worked out a scheme to defraud the railroad at that meeting, and that he did not know of any subsequent meeting where such a scheme was developed. There was uncontradicted evidence, however, that Floyd and Cooper had frequent telephone conversations, as many as seventeen in a period of two weeks. Apparently, Cooper agreed at some point to perform contract work for the Southern, as the evidence showed that he began such work in the spring of 1974.
Gibson testified that Floyd directed him to order certain tools which Cooper needed to get started. The necessary requisition was approved by Floyd, and the tools were delivered to the Southern in two shipments, paid for by the Southern, and turned over to Cooper by Gibson. There was evidence that company policy prohibited even the loaning or leasing of tools to contractors. This alleged conversion of company property was the subject of Indictments 489 and 490 charging grand larceny.
Soon after Cooper started working for the Railway, Gibson began to prepare false invoices for Cooper to submit in order to build up a "credit account" of payment for work that would be performed at a later date. According to Gibson, Floyd understood and encouraged this action. As Cooper occasionally mentioned to Gibson, none of these fictitious invoices was ever rejected by Floyd. Cooper told Gibson, "The more I make, the more you make". Approximately $30,000 had been accumulated in Cooper's account in late August, 1974, but Cooper told Gibson at that time that the credit had been paid off by work performed elsewhere.
Subsequently, Cooper submitted the low bid on a contract for work on Southern tracks in Floyd's territory near Richmond. An item of $14,665 for ditching work was deleted, however, because of budget constraints. R. F. Cothran, Engineer of Maintenance of Way, testified that he and Floyd decided that it was necessary that the ditching be accomplished, and he directed Floyd to submit a new requisition in the sum of $14,665 to be charged as "emergency ditching" and paid with funds from another source. The requisition, authorizing the work at the specified price, was issued to Cooper on September 27, 1974.
The evidence shows that Floyd "pre-billed" the ditching, I. e., billed as completed work ditching which had not been done, a practice which Floyd said was generally followed in order to have costs allocated to a current budget when funds were available, rather than to a subsequent budget. The pre-billing was accomplished through seven false invoices prepared at Floyd's direction and approved by him. Floyd also directed his clerk to prepare false back-up sheets and to sign thereon the name of L. L. Walters, the Assistant Track Supervisor in charge of the tracks in question, to substantiate that the work had been done. The false documents were given different dates to keep the amounts small, but there was evidence that they were all executed by Floyd and his clerk at one sitting. Walters testified that he was not aware of the pre-billing, that he had not authorized anyone to sign his name to the back-up sheets, and that the ditching work for which Cooper was paid had been performed not by Cooper but by two other contractors and Southern personnel.
The false invoices were as follows
October 5, 1974 $1,312.50
' 5, 1974 1,400.00
' 5, 1974 1,575.00
' 12, 1974 2,625.00
' 18, 1974 3,850.00
' 26, 1974 2,677.50
' 31, 1974 1,225.00
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Total $14,665.00
The seven conspiracy indictments (537-543, inclusive) under which Floyd was found guilty were based upon these seven invoices. However, the invoice of October 18, 1974, for $3,850 was the subject of Indictment 541 charging conspiracy to defraud the Southern of $3,580. The six indictments (586-591, inclusive) under which Floyd was charged and found guilty of grand larceny for the payments made to Cooper for work not performed did not include an indictment for money paid under the false invoice of October 5, 1974, for $1,312.50. Indictment 589 charged grand larceny for payment of the invoice of October 18, 1974, for $3,580, rather than the correct amount of $3,850. No explanation for these discrepancies is found in the record, nor has any been suggested by counsel.
Although Gibson admitted that he received money from Cooper for assisting in the submission of the false invoices and back-up sheets, there was no direct evidence that Floyd received similar payments. However, the Commonwealth introduced circumstantial evidence to show that Floyd benefited from his association with Cooper. It was shown that Cooper's wife ordered a rug that was installed in Floyd's residence, that Cooper paid $1,548.56 for the rug, and that he had never been reimbursed in whole or in part by Floyd. It was also shown that when Floyd was transferred to Knoxville, Tennessee, he stayed overnight in Cooper's home, borrowed $10,000 in cash from Cooper, and applied this sum, pending sale of his Virginia residence, on the purchase price of a house in his new territory. There was evidence that Floyd soon repaid this loan, at Cooper's direction, to Cooper's nephew. Floyd admitted that he had in a safe deposit box $13,000 in cash which he had not declared on a financial statement because he did not consider it an asset. He took the cash to Tennessee and applied it on the purchase price of his home there. There was also evidence that Cooper followed Floyd to Knoxville and continued to do contract work for the Southern under Floyd's supervision.
Floyd argues that the evidence is insufficient to establish that he entered into any agreement to defraud the Southern. We do not agree.
There can be no conspiracy without an agreement, See United States v. Perez, 489 F.2d 51 (5th Cir. 1973), Cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974), and the Commonwealth must prove beyond a reasonable doubt that an agreement existed. Reed v. Commonwealth, 213 Va. 593, 194 S.E.2d 746 (1973). Nevertheless, a conspiracy may be proved by circumstantial evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Harris v. United States, 283 F.2d 923, 926 (4th Cir. 1960); Harms v. United States, 272 F.2d 478, 482 (4th Cir. 1959). Indeed, from the very nature of the offense, it often may be established only by indirect and circumstantial evidence. Madsen v. United States, 165 F.2d 507, 511 (10th Cir. 1947).
In United States v. Harris, 433 F.2d 333 (4th Cir. 1970), the defendant had been convicted on a charge of conspiracy to make false bank entries. Edick, a co-conspirator and bank employee, illegally diverted credits to Harris's account and Harris...
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