Stevens v. United States

• Decision Date: 21 July 1953
• Docket Number: No. 11748.,11748.
• Citation: 206 F.2d 64
• Parties: STEVENS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

206 F.2d 64 (1953)

STEVENS et al. v. UNITED STATES.

No. 11748.

United States Court of Appeals Sixth Circuit.

July 21, 1953.

Dick L. Lansden and Carmack Cochran, Nashville, Tenn., for appellants.

James M. Swiggart, Asst. U. S. Atty., Nashville, Tenn. (A. O. Denning, U. S. Atty., and James M. Swiggart, Asst. U. S. Atty., Nashville, Tenn., on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellants were found guilty under a 2-count indictment charging them with having knowingly made a false statement in a matter within the jurisdiction of an agency of the United States. § 1001, Title 18 U.S. Code. Appellant Southern Automotive Trade School was fined the sum of $5,000 on each count. Appellant Carl R. Stevens received a sentence of a year and a day under each of the two counts, to run concurrently, and was fined the sum of $1,000 under each of the two counts. This appeal followed.

Appellant Stevens was a stockholder and officer of the co-appellant Southern Automotive Trade School, a corporation engaged in the business of furnishing vocational training for veterans. The School furnished instruction in two courses (1) Automotive Mechanics and (2) Body and Fender Repair. On June 2, 1949, a cost analysis was submitted to the Veterans Administration showing the cost of furnishing teaching for each of the two courses for the purpose of obtaining a contract for furnishing such vocational training. The first count of the indictment charges that the appellants on or about June 2, 1949 did knowingly make a false statement in a matter within the jurisdiction of an agency of the United States, in that they "did file a cost data statement for the Auto Mechanics course with the Regional Office of the Veterans Administration, Nashville, Tennessee, for the purpose of securing a contract to train veterans, wherein they stated that the books of the School showed a cost of Teaching and Related Personnel Salaries in the amount of $67,370.65, whereas, the books only showed an expense of $49,519.20 for Teaching and Related Personnel Salaries. The statement further showed a cost of Rent in the amount of $9,271.00, whereas, the books showed only $3,180.00 as Rent expense. The cost statement further showed an Advertising expense of $2,432.17, whereas, the books showed only $878.24 as Advertising expense. The cost data statement further showed Administrative expenses in the amount of $14,557.46, whereas, the books showed only $10,686.54 as Administrative expense. And the cost data statement further showed Consumable Instructional Supplies in the amount of $26,262.52, whereas, the books showed only $17,853.41 expended for Consumable Instructional Supplies, the defendants then and there well knowing said cost data statement to be false and fraudulent." The second count was similarly worded but dealt with the cost data statement for the Body and Fender Repair course.

Appellants contend that under the wording of the indictment it was not sufficient for the Government to prove that they made a false statement to the Regional Office of the Veterans Administration with respect to the cost of furnishing teaching, but that it was necessary to show that the cost data statements differed from what was shown to be the cost by the books of the school, it being immaterial whether such cost entries on the books were correct or false.

We agree with this contention. Since the indictment does not restrict itself to the allegation that the appellants did knowingly make a false statement, but proceeded to state in detail what constituted the alleged falsity, the Government was required to prove the falsity as specifically alleged. The specific allegations were in the nature of a bill of particulars, which no doubt the Government would have been required to furnish if it had not voluntarily done so in the indictment itself. Under such circumstances, the Government must prove the acts particularly charged. Braatelien v. United States, 8 Cir., 147 F.2d 888; Bryan v. United States, 5 Cir., 175 F.2d 223, affirmed 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335, rehearing denied 338 U.S. 957, 70 S.Ct. 491, 94 L.Ed. 590; Land v. United States, 4 Cir., 177 F.2d 346; United States v. McKay, D.C.E.D.Mich., 45 F.Supp. 1001.

We believe, however, that the District Judge was in error in charging the jury that it was necessary for the Government to prove under each count of the indictment that the appellants made all of the alleged false statements and that the jury could not find them guilty of making some of the statements and not guilty of making others. The indictment charged that the statement was false in five different respects. If the Government's evidence proved that it was false in only one of the respects charged, it was nevertheless a false statement, and such proof would have sustained a verdict of guilty. United States v. Mascuch, 2 Cir., 111 F.2d 602; Todorow v. United States, 9 Cir., 173 F.2d 439, 445. See Warszower v. United States, 312 U.S. 342, 345, 61 S.Ct. 603, 85 L.Ed. 876. Such error, being favorable to the appellants, can not be relied upon for reversal, but the correct rule should be applied by this Court in determining whether or not the verdict is supported by the evidence.

Nor was it necessary for the Government to prove that the alleged discrepancy between the cost data statement and the books of the School was in...