Johnson v. United States
| Decision Date | 21 April 1969 |
| Docket Number | No. 19296.,19296. |
| Citation | 410 F.2d 38 |
| Parties | Paul O. JOHNSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
COPYRIGHT MATERIAL OMITTED
Horace S. Haseltine, of Lincoln, Haseltine, Forehand & Springer, Springfield, Mo., for appellant. Carl E. Yates, Springfield, Mo., and A. L. Shortridge, Joplin, Mo., were on the brief with Horace S. Haseltine, Springfield, Mo.
Bruce C. Houdek, Special Asst. U. S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U. S. Atty., was on the brief with Bruce C. Houdek, Kansas City, Mo.
Before BLACKMUN, MEHAFFY and HEANEY, Circuit Judges.
The defendant was convicted on two counts of a four-count indictment:1 (1) filing a false claim on October 8, 1963, against the United States in violation of 18 U.S.C. § 2872 (), and (2) making false statements on October 8, 1963, to a department or agency of the United States in violation of 18 U.S.C. § 1001 ().3
The defendant received similar sentences on each count, imprisonment for sixty days and a fine of $10,000, the sentences to be served concurrently and the total fine to be limited to $10,000.
The defendant's request for a judgment of acquittal notwithstanding the jury verdict or, in the alternative, a new trial, was denied by the trial judge, Elmo B. Hunter. United States v. Johnson, 284 F.Supp. 273 (W.Mo.1968).
The defendant gives four principal reasons why his conviction should be reversed on this appeal: (1) The trial court should have required the government to elect between Counts III and IV. The conviction on both counts subjected the defendant to double jeopardy. (2) The indictment failed to allege facts constituting an offense under §§ 287 or 1001. The evidence to convict on either charge was insufficient. (3) The trial court deprived the defendant of an opportunity to assert a permissible defense — that of substantial performance. (4) Sections 287 and 1001 are unconstitutionally indefinite and vague as applied to the defendant's actions. Thus, his conviction is violative of the due process clause of the Constitution of the United States.
There is no showing that the defendant was prejudiced by being required to stand trial on both counts. Wangrow v. United States, 399 F.2d 106, 112 (8th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968). As the sentences on Counts III and IV are concurrent, it is unnecessary for us to consider the merits of the defendant's contention that conviction on both counts subjected him to double jeopardy. Chavez v. United States, 387 F.2d 937, 939 (9th Cir. 1967).4
In view of the concurrency of the sentences, we limit our review to those facts and issues relating to the defendant's conviction under Count III. In summarizing the facts, we view the evidence in the light most favorable to the government.
Count III of the indictment charged that on October 8, 1963, the defendant presented to the Agricultural Stabilization and Conservation County Committee of Greene County, Missouri, a claim for $4,317.20 pursuant to the Soil Bank Conservation Reserve Program, knowing that the claim was false, fictitious and fraudulent and that he was not entitled to that sum because: (1) he had lost control of ninety acres of reserved land, (2) he had destroyed approved cover on reserved land by constructing roads, sewers, water lines, gas lines and houses, and (3) he had caused a crop of hay to be harvested from the reserved land, all in violation of § 287.
The defendant and his wife were the owners of 450 acres of land in Springfield, Missouri. On December 11, 1959, they entered into a soil bank contract with the Greene County Agriculture and Stabilization Committee.5 The contract covered the period January 1, 1960, through December 31, 1969. By the terms of the contract, 282 acres were designated as a conservation reserve. This acreage was divided between four fields: A, B, C and D. The contract required that the owners establish and maintain protective vegetative cover of the reserve. It also provided: that no crop could be harvested from the conservation reserve during the contract term; that loss of control of all or part of the land by sale, or otherwise, terminated the contract with respect to the acreage over which the control was lost; that the owners were to report promptly to the Greene County ASC the sale of any land in the reserve; and, that the owners should not "file a claim for a payment to which he knows he is not entitled."
At the time the contract was signed, an acreage reporter for the County ASC checked the fields for acreage, cover, previous land use and eligibility. The reporter told the defendant that if he developed any part of the reserve area, the developed portion would be ineligible for benefits. He was also told that before he undertook development of any part of the reserve, he should discuss the matter with the county committee.
In April, 1960, the defendant was told by the County ASC Manager that a sale of a part of the reserve to a development corporation, of which the defendant was a stockholder, would terminate the contract as to the portion sold.
In July, 1961, an employee of the Greene County ASC conducted a compliance check. This check indicated that a tennis court and a tent had been placed on Field B, and that a number of homes had been built on Field C. The county committee subsequently confirmed the employee's findings. The committee then contacted the defendant and informed him that he was required to make application to take the land out of the contract before development was undertaken. The committee, nevertheless, permitted the contract to be modified and reduced the 1961 payments accordingly.
In 1962, the defendant's land was again inspected. The inspection disclosed that additional homes had been built on the reserve, that a street had been laid out in Field C and that Field B was being used for a park and playground. The defendant was again warned that no construction was to be started without the land being first taken out of the contract. The committee, nonetheless, permitted modification of the contract by eliminating Field B from the reserve, reducing the acreage in Field C and reducing payments. Two hundred and fifty-one acres of land remained in the reserve after the 1961 and 1962 modifications.
In November of 1961, the defendant and his wife executed a deed of trust covering thirty-nine acres of land in Fields C and D. This deed of trust and an accompanying promissory note were transferred to Rex Kreider and wife. The next year, the promissory note was cancelled and the property conveyed by the deed of trust was released from the lien. A warranty deed was then recorded which purported to convey the thirty-nine acres to Southern Heights Lumber Company of which Kreider was an officer. The defendant and Kreider claimed that this transaction was a security agreement, an assertion apparently accepted by the jury.6
In June of 1963, the defendant entered into a contract for sale with Kenneth Cantrell for thirty-three acres of Field C. In July, 1963, the defendant entered into a similar contract with Ezra and Henry Gibson for fifty-seven acres of the same field.
On October 8, 1963, the defendant went to the Greene County ASC office to obtain his soil bank check for 1963. The members of the committee, having heard rumors that the defendant had sold land in the conservation reserve, asked him if he had sold any of the land, and the defendant replied, "No." The defendant stated that he had contracted to sell 105 acres for development, but that the contract would not take effect until 1964. The defendant was again informed that he could not break cover, dig, build streets, lay sewer lines or do similar work until after the first of the year; and that if he did, he would have to refund any money drawn.
The defendant did not inform the committee that he was then installing sewers and gas and water laterals on Fields C and D, or that he intended to continue to do so during the remaining months of the year.
The defendant then signed the Application and Annual Payment Statement shown here, and was given a certified check for $4,317.20.
After signing the application, the defendant was again warned by an ASC employee not to break or destroy any of the cover, or put any streets or sewers on the land until after the first of the year.
Installation of gas, water laterals and sewers on Fields C and D, and construction of homes and streets on Field C continued during the remainder of the year.
On November 21, 1963, the defendant conveyed the fifty-seven acres of land to the Gibsons.7
An employee of the defendant harvested hay from Field A, two-thirds of which he took home and one-third of which was placed in the defendant's barn.
We turn to a discussion of the defendant's contentions relating to Count III. In so doing, we note that they were given thoughtful consideration by Judge Hunter and were properly decided by him. We, therefore, will not reconsider them in as much detail here.
The heart of the defendant's argument is that his submission of the application for payment did not constitute submitting a false claim within the meaning of § 287. He argues that his submission amounted to nothing more than a statement that according to his understanding of the contract between him and the government, he was entitled to receive a payment of $4,317.20. He contends that the trial court's decision establishes, for the first time, a rule that a mere declaration that a person has complied with his contract will support a criminal fraud charge. He cites United States v. Diogo, 320 F.2d 898 (2d Cir. 1963); United States v. Outer Harbor Dock & Wharf Company, 124 F.Supp. 337 (S.D.Cal.1954); and 23 Am.Jur., Fraud and Deceit, § 27, in...
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