U.S. v. Conlon, 80-2230

• Decision Date: 13 August 1981
• Docket Number: No. 80-2230,80-2230
• Parties: UNITED STATES of America v. James A. CONLON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 235

661 F.2d 235

213 U.S.App.D.C. 14

UNITED STATES of America v. James A. CONLON, Appellant.

No. 80-2230.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 19, 1981.

Decided Aug. 13, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 78-00380).

James R. Stoner, Washington, D. C., with whom William M. Hoiles, Washington, D. C., was on the brief, for appellant.

G. Allen Carver, Jr., Washington, D. C., with whom Robert J. Erickson, Washington, D. C., was on the brief, Attys., Dept. of Justice, for appellee.

Before WILKEY and MIKVA, Circuit Judges and GORDON, ^* Senior District Judge for the Western District of Kentucky.

Opinion for the Court filed by Senior District Judge JAMES F. GORDON.

JAMES F. GORDON, Senior District Judge:

This appeal follows appellant-defendant's trial and conviction of a violation of Title 18 U.S.C. § 208(a). ¹

A civil servant of long tenure, appellant was at the time in focus Director of the Bureau of Engraving and Printing. Among his official duties was concern for the security of our national paper currency against counterfeiting coupled with the obtaining of funding necessary for the acquisition of modern equipment to achieve such security. In December, 1976, the Chairman of the private concern, American Bank Note Company (ABN), invited appellant to inspect an ABN currency security system (SSS). Being impressed with SSS, appellant subsequently officially participated in a substantial manner in the decision-making process concerning the procurement from ABN of the SSS for our currency. It was during that same period that appellant ran afoul of the statute under which he is charged, for the jury found to its satisfaction that appellant negotiated for and consummated an agreement of employment with ABN, to become effective upon his government retirement. Such is a conflict of interest in violation of 18 U.S.C. § 208(a).

Appellant grounds his appeal upon assertions of insufficient evidence to support the verdict, erroneous trial court jury instruction rulings resulting in impermissible amendment of the indictment rendering the same duplicitous, and prosecutorial misconduct. As we are wholly unpersuaded by appellant's contentions, his conviction is affirmed.

As to sufficiency of the evidence. Without a detailed dissection by us of each of the instances specifically shown by the government's proof, a fair review of the transcript establishes adequately that from December, 1976, through June, 1977, there was ample occasion when appellant, acting officially, could have reasonably been believed by the jury to have been participating personally and substantially with regard to the SSS as charged, while at the same time having an arrangement for prospective employment with ABN Company. This is true even if it now be conceded, for purposes of that examination, as appellant would claim, that employment negotiations had not occurred until on or after June 10, 1977, inasmuch as on three dates thereafter ² it was shown that he exercised conduct susceptible of belief as being "substantial participation" as to the SSS adoption. Only one such believable occurrence is all that is necessary for the jury to convict. It must be remembered that at this juncture the evidence is viewed most favorably to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Harris, 140 U.S.App.D.C. 270, 284, 435 F.2d 74, 88 (1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971). We are obliged to reach the conclusion that the evidence was " 'capable of or sufficient to persuade the jury to reach a verdict of guilt by the requisite standard.' " United States v. Harris, supra, at n. 41, quoting from Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967). So much as to sufficiency of the evidence.

As to the instructions. Relying upon this court's pronouncement in Levine v. United States, 104 U.S.App.D.C. 281, 261 F.2d 747 (1958), appellant offered and was denied by the Trial Court a theory of defense instruction. This refusal, it is claimed, constitutes reversible error. We disagree, for an examination of the instructions given reflects no review by the Trial Court of the facts relied upon by the government nor did they lend undue weight to the government's theory. Thus, no narrative of defendant's claimed facts was required to even any imbalance. United States v. Mathis, 175 U.S.App.D.C. 341, 343, 535 F.2d 1303, 1305 (1976) (per curiam ). Nor did there exist the required "involved theory involving 'law' or fact, or both," which would have mandated the case rule instruction. Laughlin v. United States, 154 U.S.App.D.C. 196, 207, 474 F.2d 444, 455 (1972), cert. denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402 (1973). This is not a case, as the Trial Judge stated, where there was a risk that the jury might convict although believing appellant's testimony.

Turning our attention further to the instructions given we find, by way of background, the indictment charged that during the period from December, 1976, through June, 1977, the appellant violated the statute in question. Subsequently, in an amended Bill of Particulars the government specified eight dates within the time frame charged as the dates on which appellant "substantially participated" as to the SSS and described those acts. Thus, when the Trial Judge gave his charge he stated the following:

In order to find the defendant guilty of that charge under that statute, you must find that the government has proven beyond a reasonable doubt that on one or more of the following dates the defendant was, simultaneously, three things: (a) an officer or employee of the Executive Branch of the United States; (b) knowingly participated personally and substantially, in a proposal of the American Bank Note Company for a system to protect U.S. currency, knowing that American Bank Note Company had a financial interest in that proposal; and (c) was, on any one of those dates, negotiating for employment with ABN, or had an arrangement for prospective employment with the company: December 7, 1976; December 22, 1976; April 21, 1977; May 10, 1977; May 17, 1977; June 15, 1977; June 21, 1977; or June 24, 1977.

Counsel for appellant argues that such instruction amended the indictment. The gravamen of such argument is predicated upon the contention that the grand jury could not have, in the course of its deliberations, considered an isolated act as constituting an act of substantial participation. Instead, they submit that the challenged instruction broadened and altered the nature of the offense charged in the indictment. Thus, it is claimed that the instruction effectively allowed the jury to convict appellant on a single act of substantial participation, as opposed to requiring that the jury find that his conduct over the entire period amounted to substantial participation.

It is well established that a criminal defendant "can only be tried upon an indictment as found by ... (a) grand jury, and especially upon all its language found in the charging...