U.S. v. Cook, 78-5173

• Citation: 586 F.2d 572
• Decision Date: 20 December 1978
• Docket Number: No. 78-5173,78-5173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Owen G. COOK, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 572

586 F.2d 572

UNITED STATES of America, Plaintiff-Appellee, v. Owen G. COOK, Jr., Defendant-Appellant.

No. 78-5173.

United States Court of Appeals,

Fifth Circuit.

Dec. 20, 1978.

Jack Paul Leon, San Antonio, Tex., Morris Harrell, Daniel J. Riley, Marshall J. Doke, Jr., Dallas, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., Le Roy Morgan Jahn, W. Ray Jahn, Wayne F. Speck, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE and VANCE, Circuit Judges, and HUNTER, ^* District Judge.

EDWIN F. HUNTER, Jr., District Judge:

Owen Cook was convicted by a jury on five counts of submitting false and fictitious claims on government contracts in violation of 18 U.S.C. § 287. Cook was sentenced to consecutive terms of five years imprisonment under two counts of the indictment and fined a total of $25,000 on the remaining three counts. He appeals his conviction asserting numerous errors in the trial below.

On May 1, 1975 appellant Cook purchased Mikelco, Inc. from Carl Dunlap. The company, which was located in Bandera, Texas, was engaged in overhauling and repairing aerospace ground equipment for the United States Air Force under government contract. Cook renamed the company Mikelco of Bandera, Inc.

On May 12, May 29, June 12, June 24, and September 15, 1975, allegedly false invoices were submitted to the government pursuant to the contract. The scheme generally involved charging the government for ostensibly new parts that actually had been stolen from equipment previously sent for repair. The company also overbilled for legitimate parts and labor or created invoices from fictitious companies indicating purchases never actually made.

Appellant Cook raises five main issues on appeal. After careful consideration, finding no merit in any of the assignments of error, we AFFIRM.

I. SUFFICIENCY OF THE INDICTMENT

As his first ground for reversal, appellant argues that the indictment is insufficient because it fails to allege that he acted willfully. In United States v. Beasley, 550 F.2d 261 (5th Cir.), Cert. denied, 434 U.S. 938, 98 S.Ct. 427, 54 L.Ed.2d 297 (1977), the defendant therein advanced the same argument that willfulness is an essential to a false claim violation under 18 U.S.C. § 287. While not reaching the issue of whether willfulness is a necessary element because the concurrent sentence doctrine rendered the issue moot, this court did discount the same authority the appellant now offers to support his contention:

Appellants rely heavily upon United States v. Mekjian, 505 F.2d 1320 (5th Cir. 1975) and Johnson v. United States, 410 F.2d 38 (8th Cir. 1968), Cert. denied 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 72 (1969). These cases do not provide the comfort sought. Mekjian arose under 18 U.S.C. § 1001, where both willfully and knowingly are required by the words of the statute. In Johnson the court seems to be holding that when one is charged with knowingly making a false claim and evidence is adduced showing knowledge of the requirements of the contract with the governmental agency and the complete disregard for such, and thereafter the jury is properly charged regarding the necessity of the government proving that such claims were false, fictitious and fraudulent and made knowingly and intentionally, "willfulness" has been established.

Id. at 270, n. 12.

Appellant does correctly point out that 18 U.S.C. § 1001, a companion statute to 18 U.S.C. § 287, expressly requires willfulness. However, United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955), wherein an exhaustive analysis of the origin and history of changes in §§ 287 and 1001 is developed, indicates that section 1001 should not be employed to construe section 287's requirements. Additionally, Congress' inclusion of the term "willfully" in section 1001 while omitting the term in section 287 suggests an intent to exclude this state of mind from the essential elements of the latter offense. This judicial assessment of legislative intent is substantiated by the fact that the congressionally approved Form 10 of the Federal Rules of Criminal Procedure designed for section 287 indictments omits willfulness as an element of the offense. The indictment in the instant case in all pertinent respects substantially follows that form.

Alternatively, appellant Cook argues that even if willfulness is not required to validly charge the false claim offense, his being charged with "causing" the submission of the false claims activates 18 U.S.C. § 2 in which willfulness is an element. 18 U.S.C. § 2 is merely a codification of the law of principals. An individual can be convicted as an aider and abettor of an offense without being indicted in those terms, United States v. Young, 527 F.2d 1334 (5th Cir. 1976), and can be convicted as a principal even though the evidence establishes that he has only aided and abetted. United States v. Trollinger, 415 F.2d 527 (5th Cir. 1969). Persons accused only of causing another to do an illegal act need not be formally charged under § 2 and an indictment is sufficient if it alleges the criminal intent required for the substantive offense. Londos v. United States, 240 F.2d 1 (5th Cir.), Cert. denied, 353 U.S. 949, 77 S.Ct. 860, 1 L.Ed.2d 858 (1957). Since the court finds that willfulness is not an essential element of 18 U.S.C. § 287, appellant's first attack must fail.

II. VARIANCE BETWEEN THE INDICTMENT AND THE PROOF

Appellant alleges that there was a variance between the indictment and proof because the government at trial proved that the fraudulent claims were sent to the General Services Administration in Dallas where they were checked and certified before being forwarded to the United States Air Force for payment. On the other hand, the indictment charges that the claims were submitted for payment to the United States Air Force, an agency of the United States. The appellant therefore maintains that the government should have included "through GSA" in the indictment.

It is clear that not every variance is fatal to an indictment. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Lambert, 501 F.2d 943 (5th Cir. 1974). A variance between the allegation and proof to require reversal of a conviction must affect the substantial rights of the accused. Such rights are not affected where the defendant is adequately apprised of the charges against him so that he may prepare his defense without surprise at trial, and may protect himself against another prosecution for the same offense. Berger v. United States, supra, 295 U.S. at 82, 55 S.Ct. at 630.

Prejudice to the defendant and possibilities of double jeopardy are negligible here because the indictment listed five individual offenses, specifically identifying each claim by date, number and item. The technical variance encountered here is best relegated to the "immaterial" category.

III. SUFFICIENCY OF THE EVIDENCE

Cook next maintains that the evidence is insufficient to support a verdict of guilty. The standard for review is that "the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Vomero, 567 F.2d 1315, 1316 (5th Cir. 1978). In the instant case there is substantial evidence to support the verdict.

At trial defense counsel did not challenge the existence of the fraudulent scheme but attempted to prove that Cook had no personal knowledge of the false billing practices and never instructed anyone to bill in that manner. The evidence of Cook's participation is largely circumstantial. However, the standard for review of the sufficiency of evidence to support conviction is the same whether the evidence is direct or circumstantial. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Palacios, 556 F.2d 1359 (5th Cir. 1977); United States v. Warner, 441 F.2d 821 (5th Cir.), Cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).

Owen Cook visited the Bandera plant four or five times during May and once or twice a month thereafter until the plant closed down in early December. Cook also spoke regularly via telephone with Robert Bean, a previous owner, and Richard Weber, the material control manager, who actually performed most of the falsification at Bean's command.

The testimony of Richard Weber, the government's key witness, came closest to directly implicating Cook. Weber testified that during the routine phone calls he would get on the line after Bean and Cook had conversed. Cook would inquire, "what are we going to do this week, Richard?" Weber's response would always be a dollar figure, representing his estimate of "whatever we could spend that week on falsified invoices" the difference between amount actually spent on labor and parts and the higher figure submitted to the government as an inflated estimate of what the repairs would cost.

Weber also testified that he retained a stock of blank invoices from 19 or 20 supply companies, many of which were fictitious. One of these companies was Abtex Sales & Service of Abilene, Texas, either owned or officered by Cook. The five claims at issue in the government's case were each supported by invoices from Abtex which Weber testified he had totally invented. Weber further stated that on one occasion Cook handed him a brown envelope, commenting that he heard Weber "needed more of these." Weber indicated that the envelope contained blank Abtex invoices. There was also some evidence that Cook personally used the proceeds of Mikelco checks that paid for "purchases" from Abtex.

It is clear that appellant through this assignment of error, as evidenced by his brief, is merely attempting to argue the credibility of the witnesses...