Gevinson v. United States

• Decision Date: 10 May 1966
• Docket Number: No. 21890.,21890.
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Daniel GEVINSON, Appellant, v. UNITED STATES of America, Appellee.

358 F.2d 761 (1966)

Daniel GEVINSON, Appellant, v. UNITED STATES of America, Appellee.

No. 21890.

United States Court of Appeals Fifth Circuit.

April 1, 1966.

Rehearing Denied May 10, 1966.

Charles W. Tessmer, Emmett Colvin, Jr., Dallas, Tex., J. Edwin Smith, Houston, Tex., J. Alex Blakeley, Dallas, Tex., for appellant.

B. H. Timmins, Jr., Asst. U. S. Atty., Dallas, Tex., Paul C. Summitt, Atty., Dept. of Justice, Washington, D. C., Melvin M. Diggs, U. S. Atty., Fred M. Vinson, Jr., Asst. Atty. Gen., Beatrice Rosenberg, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before JONES,^* Senior Judge, and GEWIN and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge:

Appellant was charged in a single-count indictment with having violated 18 U.S.C.A. § 1010¹ by willfully and knowingly causing false statements to be made to the Federal Housing Administration for the purpose of influencing its action. The indictment alleged that the false statements consisted of written representations to an agent of the FHA that stated prices for the elevator, electrical, and mechanical subcontracting construction phases of a proposed housing project were the lowest subcontract prices obtainable when, in fact and as appellant knew, such prices were not the lowest prices obtainable. This appeal is from the judgment of conviction entered on a jury verdict of guilty. Appellant was sentenced to imprisonment for a period of two years and fined $5,000. We affirm.

There are sixteen assignments of error. They may be categorized as claims that the indictment was insufficient; the evidence was insufficient; there were errors and omissions in the jury charge; and the court committed error in denying certain pretrial discovery.

Appellant was the sponsor of a building project in Dallas, Texas known as Turtle Creek Towers North Apartments. He had a two year option on the land on which the apartments were to be built. He sought an FHA insurance commitment. His application for such insurance on the project was rejected by the Dallas office of FHA in June 1960. He refiled and the application was again rejected in August, 1960. Washington counsel was retained and the rejection by the Dallas office was reversed. The target date for obtaining the FHA commitment was October 1961. The option on the land was soon to expire. The FHA sent a team of specialists to Dallas in September 1961 for the purpose of completing the processing of the application. A cost estimate of the project was required preliminary to the FHA commitment.

Sixty days was normally required to make a study of the type being made but the team was working under pressure of an October deadline. Appellant was anxious to cooperate so as to expedite the commitment. One of his associates, Mr. Folse, inquired of Mr. Martin of the FHA group whether appellant's subcontract bids would help them in expediting the question of the cost of the project. Mr. Martin told him that he would take the lowest or substantially lowest bids as one source of data in connection with the cost estimate of the project. This associate, who was on appellant's payroll, then submitted various bids and estimates totaling $8,882,242.38 to Mr. Martin. Included were bids for the mechanical,² electrical and elevator phases of the project. The entire submission was represented as the lowest bids, subcontract proposals and estimates available on the date of submission, October 5, 1961. The covering letter, on the stationery of Mr. Folse, added:

"These prices represent the lowest prices obtainable at this date in all cases and are gathered from the files delivered under separate cover."

The three bids in question were firm in nature as distinguished from mere tentative proposals or estimates.

The facts were that appellant had other bids in hand from the same mechanical, electrical and elevator subcontractors totaling some $800,000 less on the date the higher bids were submitted to FHA by Mr. Folse. Appellant's position on the trial was that Folse acted without his knowledge and without authority, and also that the lower bids in his possession related to a different scope of work. We proceed to a consideration of the errors assigned.

There is no fatal defect in the indictment. Materiality, while not alleged in haec verba, is alleged in substance and this is sufficient. Bins v. United States, 5 Cir., 1964, 331 F.2d 390. The same is true as to the contention that the jurisdiction of FHA is not alleged. A reading of the indictment makes it plain that it meets the requirements of Rule 7(c), F.R.Crim.P. It tracks the pertinent language of the statute, and apprises appellant of what he must be prepared to meet. It includes all of the essential elements of the offense and no more is required under this statute. It is adequate for the purpose of framing a plea of former jeopardy and otherwise fully meets the standards required by the authorities. See Yeloushan v. United States, 5 Cir., 1964, 339 F.2d 533. Cf. United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; United States v. Nasser, 7 Cir., 1962, 301 F.2d 243; Brilliant v. United States, 8 Cir., 1962, 297 F.2d 385.

The gravamen of the offense under the applicable portion of 18 U.S.C.A. § 1010 is the uttering of a false statement with the intent to influence FHA. The indictment³ sets out the detail of the alleged false statement, that the false statement was willfully and knowingly made and passed for the purpose of influencing the action of FHA. Anything else by way of notice could be obtained by a bill of particulars and appellant took full advantage of this remedy. The criteria laid down in Russell v. United States, 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L. Ed.2d 240, a contempt of Congress prosecution, were in no way violated.

I.

With regard to the sufficiency of the evidence to support the verdict, we must take the view most favorable to the government. Glasser v. United States, 1942, 315 U.S. 60, 61 S.Ct. 457, 86 L.Ed. 680; Strauss v. United States, 5 Cir., 1963, 311 F.2d 926. The evidence adduced on the trial, stated most favorably to the government, shows that appellant was the sponsor of the project. Folse, the employee in question who dealt with the FHA specialist group, worked closely with appellant. He was told by appellant to offer assistance to the group and to suggest that bids theretofore obtained by appellant would be made available to the specialist group for consideration by them in making a project cost estimate. Folse then submitted bids, handed to him by appellant, under a covering letter signed by Folse. The letter was prepared by Folse and appellant on Folse's stationery. They were submitted to Mr. Martin of the FHA group. The three bids which form the subject matter of the indictment were in each instance only one of two bids from the same bidder in the possession of appellant. Folse knew only of the bids which he submitted to FHA. He did not know that appellant had lower bids in his possession.

The elevator bid submitted to FHA was in the amount of $298,600. It was dated September 11, 1961. This was very near the figure which a cost estimator in the employ of appellant had obtained from the elevator company (Otis) in June of the same year. This earlier figure was submitted by Otis for "budget purposes only" and as a suggestion based on what Otis described as "brief specifications." On October 5, 1961 appellant had in his possession a firm bid from Otis based on the plans and specifications underlying the project in the amount of $205,168. It was in the form of a submission to Otis and appellant accepted this bid in writing in his office as president of Turtle Creek Towers Apartment North, Inc. on September 30, 1961. Otis accepted it on October 5, 1961. This bid was not disclosed to the FHA group.

Appellant obtained a bid from the mechanical subcontractor on September 20, 1961 in the amount of $1,639,340⁴ after stating to the subcontractor that he wanted a high estimate for the mechanical work on the project by the next day. The president of this subcontractor testified that it was a "guesstimate" based on past experience and a preliminary review of the mechanical drawings. It too was near the estimate of appellant's cost estimator. The mechanical subcontractor was later invited to and did submit a firm bid on the work based on the plans and specifications of the project. The "guesstimate" was not accepted but it was presented by Folse to the FHA group as a bid. The firm bid on the project by this subcontractor in the amount of $999,000 was submitted by letter dated September 26, 1961 and was accepted by appellant in his capacity as corporation president on the same day. This bid was not made known to the FHA group.

On September 25, 1961 appellant obtained two bids on the project from the same electrical subcontractor. One was in the amount of $548,000 which the contractor testified was made at the request of appellant so that he might make a proper financial arrangement. The other bid was in the amount of $415,000. The bids are verbatim except for prices. They refer to the same plans and specifications. There is some confusion in the testimony as to just what these bids were to have included but appellant was satisfied to accept the lower of the bids by a longhand letter dated November 2, 1961. This lower bid was not made available to the FHA group.

All three of these low bids were in appellant's possession when he sent Folse to the FHA group with the higher bids. Of course, Folse's testimony that appellant sent him was vigorously disputed but this was a fact issue to be resolved by the jury.

Appellant also contends that the low bids were made in contemplation of a different scope of work. The project included a two-story commercial structure adjacent to the main apartment house. This structure was to house a restaurant, supermarket, floral shop, beauty parlor, drugstore and the like. There was a special...