Glover v. United States, 9921.

• Decision Date: 23 March 1942
• Docket Number: No. 9921.,9921.
• Citation: 125 F.2d 291
• Parties: GLOVER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

125 F.2d 291 (1942)

GLOVER v. UNITED STATES.

No. 9921.

Circuit Court of Appeals, Fifth Circuit.

January 23, 1942.

Rehearing Denied March 23, 1942.

W. Paul Carpenter and A. Walton Nall, both of Atlanta, Ga., and Roy V. Harris, of Augusta, Ga., for appellant.

Lawrence S. Camp, U. S. Atty., and J. Ellis Mundy and James T. Manning, Asst. U. S. Attys., all of Atlanta, Ga., for appellee.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

The appellant, J. G. Glover, was convicted and sentenced on eighteen counts of an indictment charging the use of the mails to defraud. The principal question for decision involves the sufficiency of the evidence to make out a case for the jury.

During the years 1937 to 1940, as supervisor of state forces for the highway board of Georgia, appellant's duties were to supervise and manage the state convicts who were used to build and repair the highways of Georgia, and to locate, construct, maintain, and manage the prison camps erected near various road projects throughout the state. The indictment charged that Glover, in the performance of his duties, devised or intended to devise a scheme to defraud the highway department, the state, and its taxpayers of large sums of money by purchasing, in his own name, lands adjacent to or near the camp sites selected by him, and by having erected thereon, by the use of state labor and money, elaborate and expensive houses and improvements ostensibly for the use of the camp wardens but actually for his own personal use and benefit; that he manipulated the deals in a manner designed to deprive the state of property lawfully belonging to it, and concealed his illicit dealings from the state highway board; and that he caused the mails to be used in execution of his said fraudulent scheme.

Many of the salient facts are not in dispute. Appellant admits that he occupied a position of trust and confidence; that his duties and responsibilities were those alleged in the indictment; that he located each of the three camp sites in question, and purchased land in his own name adjoining the camps or near to them; that houses and other improvements were erected upon his property by the use of state funds, equipment, materials, and labor; that two of the three houses were more elaborate in design and more expensive in construction than the average of the houses built for wardens; and that the disbursements of state funds in payment of the obligations incurred in the construction of the improvements were made, almost without exception, by checks transmitted through the mails in accordance with established practice.

While much of the remaining evidence is conflicting, and although appellant's explanation of the admitted facts might, if believed, exonerate him completely, there is sufficient credible evidence in the record to justify the submission of the case to the jury and to support the verdict. The two expensive houses were built on appellant's property in Dade and Dawson Counties. James Finley, who was employed by the state highway board as a special investigator, testified that he made a tour of inspection, in the summer of 1940, to six of the convict camps operated by the State of Georgia, including that in Dawson County. At three of these camps a house had been built by the state for the warden, and the house in Dawson County erected on appellant's land was, Finley testified, much more expensive and elaborate than the other two.

B. D. Purcell, the Principal of Schools in East Point, Fulton County, Georgia, was likewise employed as an investigator by the Board. He visited four other camps, including that in Dade County at which the warden's house was located on appellant's property. His testimony disclosed that houses were built and furnished to the warden at two of these camps, and that the house erected on appellant's property was considerably more elaborate and valuable than the other.

The house in Dawson County occupied an elevated site connected with the highway by a ramp built by labor from the camp. It was a six-room house with a screened sleeping porch, a front porch, a rock and cement foundation, concrete steps and basement, a paved driveway, and a garage with a concrete floor. The entire six acres owned by appellant was inclosed by a wire fence constructed and paid for by the state. The house was completed in May, 1940. Mr. Patten, a member of the state highway board, testified that the Board expected to complete the Dawson County projects by December 31, 1942, two years and seven months subsequent to the completion of the house. The warden who occupied this house was a bachelor.

The house in Dade County was erected on a bluff above a new scenic highway more than a mile and a half from the camp. It, too, was a six-room house with a composition roof and a cemented rock foundation. The walls were storm-sheeted, the sleeping porch was screened, the basement had a concrete floor, and the steps were of cemented rock. This house was completed on July 1, 1940, approximately three years prior to the date the state highway board expected the Dade County projects to be completed. Though both of the wardens testified that it was agreed between them and appellant that these houses were to be removable at the will of the state highway board, there was nothing in writing to evidence the agreement, the members of the Board were not informed that the houses were being constructed upon appellant's property, the design of their construction was predominantly for permanency rather than removability, and the salvage therefrom upon removal admittedly would be of little value. Other permanent improvements of an immovable nature were also made upon the properties.

The facts surrounding the construction of the third house are somewhat different. In this instance the land was bought with state funds in appellant's name under express instructions from the appellant. We consider it unnecessary to set forth the evidence adduced by the government in greater detail. In our opinion it is sufficient to support the verdict of the jury.

This is true whether or not, under the circumstances of each transaction, the State at all times had the right to remove the houses at will. Whether appellant's statements in conversation with the wardens, to the effect that the houses were removable by the Board, would be considered a binding agreement between Glover and the Board which would create an easement in favor of the Board under the real property law of Georgia, is wholly immaterial. The scheme to defraud is not required to be reasonable, practical, or successful, and the damage calculated to result therefrom may be great or small.¹ The statute, 18 U.S.C.A. § 338, was violated if the mails were caused to be used in furtherance of a scheme, either devised or intended to be devised, to defraud or to obtain property by deceptive means.² The facts show that appellant's property was materially enhanced in value, and that state funds were wrongfully diverted into personal channels. That this result was brought about by the intentional scheming of the defendant, as charged in the indictment, was an inference that was reasonably deduced from the evidence.

The indictment charged that the procedure followed by the appellant in building these houses violated the established plan, rule, and practice of the state highway department. This allegation was surplusage, and the failure of the proof to substantiate it had no effect upon the validity of the conviction.³ The denial of appellant's motion for a directed verdict of not guilty was proper.

Other assignments of error involve the refusal of the court below to give several requested instructions to the jury relating to the effect, under Georgia law, of verbal agreements for the removal of realty from the land of another. As we have indicated, the refusal of the court to give these instructions was not error, for the reason that these instructions were directed toward the success of the scheme, not to its existence. Whether or not the property laws of Georgia would have prevented the successful culmination of the scheme, the formulation and attempted execution thereof by the use of the mails, with the intent to defraud, constituted a commission of every essential step in the crime charged.⁴

The lower court's denial of the motion for a new trial, on the ground of newly discovered evidence, was not an abuse of discretion. If newly discovered, this evidence was useful only to bolster other evidence which, if resolved against the defendant by the jury, could not have been prejudicial to him. Since it was immaterial, except in so far as it may have been indicative of the intent of the accused, whether the State actually retained the right to remove these houses, it is also immaterial that it, in fact, has been permitted to remove them. The record presents no reversible error, and the judgment appealed from is affirmed.

HUTCHESON, Circuit Judge (dissenting).

With deference, the undisputed evidence not only does not support, it completely negatives the statement of the majority opinion, "The facts show that appellant's property was materially enhanced in value and that state funds were wrongfully diverted to personal channels." Since however, what is in question here, is not the success or failure of a fraudulent scheme but whether one was devised and the mails were used in connection with it, and whether defendant has been fairly tried and fairly convicted, no useful purpose will be served in setting out here the evidence on this point. It will be sufficient to show, as I think I can, in discussing the grounds on which the majority opinion for affirmance is rested, that it was immaterial "whether or not under the circumstances of each transaction, the state at all times had the right to remove the house at will", that this was greatly material, indeed of the essence of the charge, and that under the facts,...