U.S. v. Bennett, 81-1662

• Decision Date: 30 March 1983
• Docket Number: No. 81-1662,81-1662
• Citation: 702 F.2d 833
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alva Dotson BENNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 833

702 F.2d 833

UNITED STATES of America, Plaintiff-Appellee, v. Alva Dotson BENNETT, Defendant-Appellant.

No. 81-1662.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 12, 1982.

Decided March 30, 1983.

Donald B. Marks, Marks & Brooklier, Beverly Hills, Cal., for defendant-appellant.

Henry H. Rossbacher, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT, WALLACE, and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

Appellant, Alva Dotson Bennett, was indicted with accomplices and tried on one count of conspiracy, 18 U.S.C. Sec. 371, forty-nine counts of making false statements to the United States Department of Labor, 18 U.S.C. Sec. 1001, seven counts of theft and embezzlement of CETA funds, 18 U.S.C. Sec. 665(a), and two counts of filing false income tax returns, 26 U.S.C. Sec. 7206(1). We affirm his convictions.

Bennett was secretary-treasurer of Teamsters Union Local 911. The criminal charges were for participating in a scheme to defraud the Government of funds appropriated under CETA. The first part of the fraud was to bill the CETA program for work purportedly done by defendant's collaborators and codefendants. The money so generated was kicked back to Bennett. The second part of this scheme involved salaries of four teamster employees. Bennett misrepresented facts in order to collect salaries for four employees for work in fact not performed.

The kickbacks to Bennett included a series of payments by a company which administered the program. Bennett did not report these payments on his tax return. Also included in the unreported income was a check he received from a codefendant. That payment was unrelated to the CETA fraud scheme.

Bennett's first contention is that charging him both with infractions of 18 U.S.C. Sec. 665(a) and 18 U.S.C. Sec. 1001 violates the double jeopardy clause. We reject that claim.

The double jeopardy clause is not violated where separate charges are based on statutes, each of which requires proof of a fact the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Dixon v. Dupnik, 688 F.2d 682, 684 (9th Cir.1982). The Blockburger test is met "notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975). The two statutes involved here, 18 U.S.C. Sec. 665(a) and 18 U.S.C. Sec. 1001, do meet the Blockburger test for separate charges. The statutory elements of 18 U.S.C. Sec. 665(a) not required to be proved under Sec. 1001 include, for example, the requirement that the defendant be connected with an agency receiving financial assistance under CETA. The statutory elements of 18 U.S.C. Sec. 1001 not part of Sec. 665(a) include an affirmative act of falsifying or concealing a material fact; the making of a false, fictitious, or fraudulent statement or representation; or the making or use of a false writing or document.

The defendant also contends that it was reversible error to join the fraud and tax evasion counts. Since the codefendants pleaded guilty and defendant was tried alone, the controlling joinder rule is Fed.R.Crim.P. 8(a), which sanctions the joinder of all offenses that are of "the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Rule 8(a) is clearly met here. The tax evasion counts were offenses of the same character, and they were occasioned mostly by the necessity of concealing the illegal proceeds of the offenses charged in the remaining counts.

Appellant argues that the indictment was multiplicitous in that it charged him for the same offense in several separate counts. Counts 2-45 charged the appellant with submitting certain misleading invoices. Counts 46-50 charged him with submitting close-out reports that are summations of these misleading invoices. In United States v. UCO Oil Co., 546 F.2d 833, 839 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977), we held that each false document made or submitted may be charged as a separate violation of 18 U.S.C. Sec. 1001. The counts charged separate offenses under this rule, and they are not multiplicitous.

The district court properly denied the defendant's motion for discovery of grand jury transcripts. To obtain disclosure, the defense must show "a particularized need" for the grand jury materials requested. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). The...