U.S. v. Bottom

• Decision Date: 02 March 1981
• Docket Number: No. 80-7314,80-7314
• Citation: 638 F.2d 781
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry BOTTOM, Dave Davis and Elam Bracy Hamilton, Defendants-Appellants. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 781

638 F.2d 781

UNITED STATES of America, Plaintiff-Appellee, v. Terry BOTTOM, Dave Davis and Elam Bracy Hamilton,

Defendants-Appellants.

No. 80-7314.

United States Court of Appeals, Fifth Circuit.

Unit B

March 2, 1981.

L. Drew Redden, Birmingham, Ala., James Alexander, Athens, Ala., for defendants-appellants.

J. R. Brooks, U. S. Atty., Herbert H. Henry, III, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before SIMPSON, RONEY and THOMAS A. CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

A jury found defendants, Bottom and Hamilton, guilty under two counts of mail fraud pursuant to 18 U.S.C. § 1341 and found defendant Davis guilty under one count. The trial judge instructed "not guilty" verdicts as to the remaining counts of the fourteen count indictment. From the ensuing judgment and sentences, the defendants appeal their convictions to this court. We affirm.

The appellants, county commissioners of Limestone County, Alabama, were responsible for the maintenance of county roads in their districts, separate geographical areas of the county. Each carried out the full-time job of county commissioner from a tool shed which served as an office, storage room and garage. The scheme in which these commissioners participated involved a jobber, Baldwin, doing business as the Lisco Co., who sold corrugated metal pipe which he bought from his sole supplier, Tri-State Drainage Products Company (Tri-State). Baldwin would take orders from Limestone County and then call them in to Tri-State which would ship the pipe to the commissioner at his tool shed office. Upon delivery of the pipe, the Tri-State truck driver would leave a copy of the delivery ticket, which stated the quantity and provided a description of the pipe delivered, with the commissioner and return the other copies of the signed delivery ticket to Tri-State where several copies were filed and one was sent to Baldwin at the Lisco Company as a bill accompanying an invoice. Upon receiving the Tri-State invoice with copies of the signed delivery tickets, Baldwin would send a Lisco invoice to Limestone County. He would not send copies of the Tri-State delivery tickets with his invoice, but would instead prepare Lisco "dray tickets", which matched in quantity and description the items reflected on the Lisco invoice. Thus, the only Tri-State delivery tickets Limestone County ever received were the copies which were left with the commissioner actually receiving and signing for the delivery at his tool shed office.

There were two types of illegal invoices charged in this scheme, "padded" invoices and "bogus" invoices. Padded invoices were made out for more pipe than was delivered. The commissioner received half of the amount of the pad in cash. Bogus invoices were invoices as to which nothing was delivered but an amount was billed; the commissioner received half of the amount billed in cash.

Limestone County usually paid its vendors such as Baldwin by the tenth of the month. The invoices were submitted to the commissioners for formal approval at their regular meeting occurring on the third Monday of the month. The commissioners would each initial a copy of the check paying an invoice. The check copy was stapled to the invoice with any other supporting documents. Because of the county's practice of paying vendors by the tenth of each month, the commissioners' initialing of the check copies occurred after the check had been issued and mailed to the vendor. The checks reflecting amounts for padded or bogus invoices were mailed to Baldwin in this manner.

The defendants went to trial before a jury on their pleas of not guilty on February 11, 1980. Their trial continued through February 20, 1980 when, because the jury failed to reach a unanimous decision, a mistrial was ordered by the court. The second jury trial began on March 10, 1980. The defendants moved for judgment of acquittal at the close of the government's case, at the conclusion of all the evidence and after the jury's verdict was received. After deliberating for eight hours, 9:00 A.M. to 5:00 P.M., on March 19, the foreman of the jury on March 20 at approximately 9:45 A.M. sent a message to the judge stating that the jury was deadlocked and could not resolve the matter. The trial court then, on its own volition, gave an "Allen" charge to the jury. After the charge, the jury began deliberations again at 9:56 A.M.; and at 1:40 P.M., the jury returned its verdict finding Hamilton and Bottom guilty under counts seven and eleven and Davis guilty under count seven. The court then stated that consistent with the jury's verdict he was going to instruct that a verdict of not guilty be entered on all counts but seven and eleven. The defendants' motions for judgments of acquittal and for new trial were denied on April 15, 1980.

The following issues are before us on appeal:

1. Did the trial court err in overruling defendants' motion for judgment of acquittal because the variance of the government's proof of the scheme from the scheme charged in the indictment was so great as to render the proof insufficient to support the verdict?

2. Did the trial court err in overruling defendants' motion for judgment of acquittal because the jury verdicts were inconsistent?

3. Did the trial court err in overruling defendants' motion for judgment of acquittal because the scheme reached fruition prior to the claimed operative mailings so as to render the evidence insufficient to prove a material element of the alleged offense?

4. Under the totality of the circumstances, including the prior mistrial because of a deadlocked jury, was the trial court's giving of the "Allen" charge reversible error?

In considering the first issue, as to whether there is sufficient evidence to support the verdict in light of the variance between the government's proof of the scheme at trial and the scheme as charged in the indictment, we note that our standard of review on a motion for judgment of acquittal is whether viewing the evidence most favorably to the Government, a reasonable-minded jury could find the admissible evidence sufficient to support the jury's verdict of guilty. All reasonable inferences and credibility choices must be made in favor of the jury verdict. United States v. Maner, 611 F.2d 107, 108-09 (5th Cir. 1980). See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Baker, 633 F.2d 696 (5th Cir. 1980). It is also the law that in considering a variance between the indictment and the proof, the true inquiry is not whether there has been a variance in proof, but whether there has been such a variance as to "affect the substantial rights" of the accused. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935).

Each count of the indictment charged the defendants with participating with Baldwin in the devising of a scheme to defraud Limestone County, Alabama. This scheme is alleged to consist of the defendants' placing of orders for metal culvert with Baldwin which resulted in his preparing false invoices on which the quantity of culvert shipped to Limestone County was increased to a quantity greater than was actually delivered. The defendants are also charged in each count with approving the invoices which they knew were false and of dividing with Baldwin the net amount paid by Limestone County for pipe ordered on the invoice but not delivered. In addition, every count of the indictment charges the defendants with agreeing with Baldwin to prepare and submit for their approval for payment totally false invoices, that is invoices which reflected a quantity of pipe ordered when in fact no pipe was delivered, and of dividing equally with Baldwin the amount paid on the false invoices.

Counts seven and eleven, with which we are concerned here, reallege the first paragraph of count one, paraphrased in the immediately preceding paragraph, and then charge that in December 1977 and May 1978 checks, numbers 1913 and 2366, were drawn on the account of Limestone County, Alabama, for $5,520.50 and $6,361.56 respectively and were mailed to Baldwin in violation of 18 U.S.C. § 1341. These two checks were for amounts paid on totally false or bogus invoices. Simply stated, the indictment charges the defendants with agreeing with Baldwin to a scheme to make false, either padded or bogus, invoices from which Baldwin received money from Limestone County which he then divided equally with the commissioners.

The record, however, shows a different chronology than the indictment charges. The record reflects that Baldwin met with the defendants in December 1977 and May 1978 and that they agreed that each commissioner would tell Baldwin the amount of pipe to be billed or invoiced ¹ but not to be delivered. After the amounts and description of the pipe had been agreed on, Baldwin computed the value of the pipe to be billed and paid the respective commissioner fifty percent of the billing price up-front before any other step in the scheme occurred. ² After the money was paid to the commissioners, the check was issued and mailed and then the invoice was submitted to the commissioner for approval by initialing. ³

Based on the evidence pertaining solely to the totally bogus invoices, there is no material variance from the scheme charged in the indictment and proved at trial. The chronology as proved was not exactly the same as is set out in the indictment, but the indictment and the proof "substantially" correspond and any variance was not of such character as to mislead the defendants at trial or to deprive the defendants of their right to be protected against another prosecution for the same offense. The proof was sufficient to support the verdict at trial.

The second issue questions the consistency of the verdicts. Rigid consistency of the verdict is not necessary in a...