McClanahan v. United States, 15515.

• Decision Date: 16 April 1956
• Docket Number: No. 15515.,15515.
• Citation: 230 F.2d 919
• Parties: R. I. McCLANAHAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

230 F.2d 919 (1956)

R. I. McCLANAHAN, Appellant, v. UNITED STATES of America, Appellee.

No. 15515.

United States Court of Appeals Fifth Circuit.

March 16, 1956.

Rehearing Denied April 16, 1956.

COPYRIGHT MATERIAL OMITTED

David Bland, Joseph W. Cash, Houston, Tex., for appellant.

Malcolm R. Wilkey, U. S. Atty., John C. Snodgrass, Asst. U. S. Atty., C. Anthony Friloux, Jr., Asst. U. S. Atty., Houston, Tex., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant, R. I. McClanahan, was an electrical inspector employed by the City of Houston, Texas. He made the acquaintance of C. L. Fitzhenry, a real estate broker and building contractor. Appellant provided funds for the purchase of dwellings from veterans who had rights to home loan guaranties by the Veterans Administration. These veterans, all of whom were without any intention of occupying the property acquired and simultaneously sold by them, were located by Benjamin Skinner. Skinner was brought into the picture by Fitzhenry. Skinner received $50 for each veteran he procured. The veteran, brought to Fitzhenry, would fill out the forms for procuring an insured V. A. Loan and a contract for the purchase of a specific property. The receipt of a down payment was acknowledged, but was not made by the veteran. The property, the subject matter of the transaction, was never seen by the veteran. In completing the loan application form, each of the veterans was required to state as the purpose of the loan that he was acquiring a home. Each veteran and his wife were required to make an affidavit that they would occupy the property as their homestead. None of the six veterans in the transactions involved in this appeal saw the property and none of them had any real intention of occupying it. Upon the transfer of title to the veteran and the closing of the loan he would convey the property to the appellant, receive between four and five hundred dollars, and go his way. When the title to a dwelling was in appellant's name he provided the funds with which to pay the veteran. Fitzhenry then found purchasers for the equity above the V. A. guaranteed loan at prices at or in excess of a thousand dollars. Appellant was reimbursed for his outlay in the venture, and the remainder was divided between Fitzhenry and appellant.

Fitzhenry and appellant were charged in a thirty-one count indictment. Also named in the indictment as a defendant was Charles H. Baldridge, as to whom the indictment was dismissed on motion of the United States Attorney. The first thirty counts related to ten separate transactions, each of which formed the basis of three counts of the indictment. Of these groups the first count charged that the defendants "did knowingly and wilfully cause to be made a false, fictitious and fraudulent statement and representation" in inducing a named veteran to make the false statement in the loan application. 18 U.S.C.A. § 1001, § 2. The second of each group of three counts charged that McClanahan and Fitzhenry "did knowingly and wilfully, by a scheme, trick and device, conceal and cover up and caused to be concealed and covered up a material fact" that the named veteran did not intend to occupy the premises as described as his home. 18 U.S.C.A. § 1001. The third of the series of counts charged that Fitzhenry and McClanahan "did knowingly and wilfully cause to be made a false, fictitious and fraudulent statement and representation" in causing the veteran and his wife to make the affidavit of intent to occupy the property as a homestead. 18 U.S.C.A. § 1001, § 2. Each of the counts recites that had the Veterans Administration known that the veteran did not intend to occupy the premises as a home the V. A. loan guaranty would not have been issued. The thirty-first count charged the appellant, Fitzhenry, and Baldridge with conspiracy to do what the prior counts charged had been done and set forth thirty-three alleged overt acts. 18 U.S.C.A. § 371. Fitzhenry was convicted on all counts. The appellant, R. I. McClanahan, was found guilty on the substantive counts involving six transactions, eighteen counts, and on the conspiracy count. He was given a suspended sentence of twenty-seven months and a fine of $1,500.00. A motion of the appellant for a new trial and in arrest of judgment was denied. Before us the appellant urges that the only evidence that tied him to any illegal transactions was the "unsupported, contradictory, vague, equivocal and sometimes incredible" testimony of Skinner, an acknowledged accomplice of Fitzhenry; that the charges to the jury were erroneous, particularly with respect to criminal intent; that Government counsel made prejudicial insinuations of undisclosed knowledge of facts adverse to appellant; and that the jury argument of Government counsel was improper.

The court properly charged that Skinner and the veterans would be, in effect, if not principals, accomplices whose testimony should be received with caution and scrutinized with care. It was Skinner's testimony that his initial contact with Fitzhenry was in the fall or early spring of 1950 or 1951 when he inquired if he could buy another home with a V. A. loan guaranty, he having already exercised his privilege of purchasing a dwelling with a V. A. guaranty. He quoted Fitzhenry as saying it would be all right if he were to get a veteran to buy the house for him and buy the house from the veteran. Skinner found a veteran, Joel W. Jackson, and a house was purchased which had been built by McClanahan under the supervision of Fitzhenry but with title in the developer, Oak Meadows Corporation. Fitzhenry then proposed to Skinner, so Skinner testified, that each of them would put up part of the necessary funds and they would get veterans to use their V. A. loan guaranty rights in acquiring residential properties and split the profits, but instead he went to work for Fitzhenry securing veterans for a flat rate of fifty dollars. Skinner told of an occasion when he, Fitzhenry and the appellant were together discussing the availability of veterans, where they were most available and where they, the three of them, could get them the easiest. Skinner quoted appellant as telling him that he, Skinner, had better luck at Sinclair Rubber (among whose employees most of the veterans secured by Skinner were found), than appellant had with those contacted by him because, appellant is quoted as saying, the men that worked uptown were wiser than the guys that worked at Sinclair. Skinner testified regarding a transaction where the veteran was K. P. Bradshaw who wanted cash. McClanahan provided Skinner, so Skinner said, with a cashier's check for $400.00 payable to Skinner which he cashed. On two occasions, Skinner related, the appellant gave him a personal check or cash with which to pay the veteran. The testimony was plausible and there is no reason for rejecting or disregarding it.

A conviction may rest upon the uncorroborated testimony of an accomplice. Todorow v. United States, 9 Cir., 1949, 173 F.2d 439. The conviction here is not wholly dependent upon Skinner's testimony. The appellant took the stand. His testimony was in some respects equivocal and in others contradictory. In telling of the deal with Jackson the appellant stated that he didn't know Jackson but he then (at the trial) understood that Skinner was the eventual or first owner of the house. He went on to say, "I have never known or met or heard of Mr. Skinner". He later testified:

"Well, I had seen Mr. Skinner around this addition and see him talking to Fitzhenry, and everywhere I saw Skinner every time I saw him talking to anybody he always had some kind of a deal, he was always promoting something, trying to sell a house or do this or do that. I mean, he mentioned several times he had these various houses or so forth lined up, I mean, at first I wasn\'t interested in it because Mr. Fitzhenry and I had planned to go ahead with this building.

"But at some time in there, well, he did come up with one and he talked to Fitzhenry about it or talked to me about it and if he talked to me I sent it back to Fitzhenry or told him to talk to Fitzhenry because I wasn\'t interested. Actually at that time I didn\'t want to fool with houses. I didn\'t know anything about the value of houses and property and so forth."

On cross-examination he was asked if Government counsel had misunderstood him to say that he had never known, met or heard of Mr. Skinner until the indictment. He responded "You did misunderstand me. I said I never knew or heard of Mr. Skinner until he came to us with these houses and so forth". It was established that each of the veterans involved in the substantive counts conveyed to the appellant. Without further extending our review of the facts, we deem it enough to say that the evidence shows that the appellant, with Fitzhenry, and through Fitzhenry and Skinner, knowingly and wilfully caused the false statements and representations to be made in the applications and affidavits involved in the six transactions from which stem the convictions on the substantive counts, and knowingly and wilfully, by trick, scheme and device caused to be concealed and covered up the material fact that the veterans did not intend to occupy the property ostensibly purchased by them.

The appellant takes up, one by one, the overt acts listed in the conspiracy count of the indictment, and argues that no one of them is sufficient to support a conviction of the conspiracy charge. The evidence cannot be divided into small segments and each particle weighed separately. All must go into the scales together. The appellant stresses the fact that Skinner was unable to testify that there was an arrangement between Fitzhenry and the appellant. "The existence of the agreement or joint assent of the minds need not be proved directly, but may be inferred by the jury from other facts proved." 11 Am.Jur. 570, Conspiracy, § 38. The...