U.S. v. Davis

• Citation: 533 F.2d 921
• Decision Date: 17 June 1976
• Docket Number: No. 75-1494,75-1494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sammie Lee DAVIS and Jasper Edward Baccus, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 921

533 F.2d 921

UNITED STATES of America, Plaintiff-Appellee, v. Sammie Lee DAVIS and Jasper Edward Baccus, Defendants-Appellants.

No. 75-1494.

United States Court of Appeals Fifth Circuit.

June 17, 1976.

William Stephen Swayze, Jr., Dallas, Tex. (Court appointed), for Sammie Lee Davis.

Brian A. Eberstein, Dallas, Tex., for Jasper Baccus.

Frank D. McCown, U. S. Atty., Fort Worth, Tex., William F. Sanderson, Jr., Judith A. Shepherd, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

Appellants, Sammie Lee Davis and Jasper Edward Baccus, were charged in a single count indictment, returned on September 5, 1974, of conspiring, in violation of Title 18, U.S.C., Section 371, the general conspiracy statute, to knowingly and wilfully make and cause to be made false, fictitious and fraudulent statements and representations as to material facts in a matter within the jurisdiction of the United States Department of Labor, Manpower Administration, in violation of Title 18, U.S.C., Section 1001. ¹ The indictment alleged that the conspiracy existed from May 20, 1969, to May 1, 1970, and that Davis and Baccus committed eight specific overt acts in furtherance of the conspiracy, only two of which were alleged to have occurred after August 13, 1969. Both appellants were found by a jury to be guilty as charged. This appeal from the judgment of conviction and sentence of each to five years confinement timely followed.

The defendants below moved for dismissal of the indictment prior to trial, and for judgments of acquittal both at the close of the government's case and at the close of all the evidence, asserting that the indictment failed to allege an offense within the five year general statute of limitations, Title 18, U.S.C., Section 3282. The district court denied each of the motions, as well as motions to strike overt acts 7 and 8 ² from the indictment.

Whether prosecution of the offense was barred by the five year statute of limitations is the primary issue on appeal. Davis and Baccus contend that the offense charged in the indictment occurred prior to September 5, 1969, and that the prosecution commenced by the September 5, 1974 indictment was not within the five year limitation of § 3282. The government counters that the prosecution was commenced within the statute of limitations, since the government proved overt acts in furtherance of the conspiracy continuing as late as April 30, 1970. We conclude that the convictions are due to be reversed.

I. THE FACTUAL SETTING

On May 20, 1969, appellant Davis, then Pastor of the Fellowship Baptist Church, met with Harvey George Davisson to discuss the possibility of entering into a contract with the Manpower Administration of the Department of Labor for training Dallas, Texas area hard-core unemployed to work in the dry cleaning business. At that time Davisson was the president of Behavioral Sciences Research Laboratories (B.S.R.L.) which was organized to formulate and implement educational programs to be utilized in conjunction with vocational training. At the May 20 meeting Davis represented to Davisson that he had prior experience in the formation and operation of "consortiums" ³ to train unemployed persons pursuant to Labor Department contracts and that he owned facilities for the training of persons in the dry cleaning trade. As a result of the meeting Davis, on behalf of Fellowship, Inc., and Davisson, on behalf of B.S.R.L., entered into an "Agreement of Association" to seek a contract with the Labor Department for the training of hard-core unemployed. In response to a request by Davisson, Davis recommended appellant Baccus, represented by Davis as owning a chain of dry cleaning stores, to be president of the consortium.

On June 25, 1969, the appellants and Davisson entered into an agreement to form the "Dallas Dry Cleaning Consortium" (Consortium) and to submit a contract proposal to the Department of Labor for the training of 450 hard-core unemployed to be skilled dry-cleaning employees. The Consortium Agreement provided that the Consortium would act as the prime contractor under the contract and that Fellowship, Inc. would locate and assist in screening individuals to participate in the program, establish a skills training program, and provide facilities for the training classes. B.S.R.L. was to establish a motivation program and a supervisory training program. As subcontractors Fellowship, Inc. and B.S.R.L. were to be paid by the Consortium for their services.

Appellant Baccus on behalf of Consortium submitted to the Department of Labor on July 16, 1969, a detailed proposal for the training of 450 persons at a maximum cost to the Department of $1,258,637. Under the terms of the proposal all trainees from the date of their entry into the program were to be employed by a participant in the Consortium. Pursuant to Labor Department requirements Baccus wrote to the Department on August 13, 1969, designating the 19 dry cleaning firms which had purportedly agreed to become members of the Consortium. Attached to this letter was a list showing the number of trainees each firm supposedly agreed to hire and train, and Consortium Agreements and Definitions of a Consortium purportedly signed by each of the 19 firms.

The Department of Labor accepted the contract proposal on September 8, 1969, thereby awarding J.O.B.S. MA-5 Contract Number 46-0-5013-001 to Consortium. The contract became effective on the date of acceptance and was to continue until March 7, 1971. During the interim between the letter of August 13, 1969, and the acceptance of the proposal by the Department on September 8, 1969, there were no communications between any member of Consortium and any officials of the Department of Labor concerning the proposed contract.

On September 22, 1969, Davisson, per Baccus' instructions, went to the Fellowship Baptist Church in anticipation of performing B.S.R.L.'s obligations under the contract. Davisson testified at trial that upon arriving at the church he was taken to a small unfurnished room and that no trainees were present. Shortly after he arrived Davisson attempted to speak with appellant Davis concerning the inadequate facilities, but Davis appeared unwilling to engage in conversation. Further, Davisson was told by someone that "he had better leave". That afternoon Davisson and two investors in B.S.R.L. met with the appellants and several other persons to discuss the problems encountered in the performance of the contract. Davisson testified that during this meeting the appellants told him that B.S.R.L. was to receive a disproportionate share of the monies paid out under the contract, and that they were displeased with B.S.R.L.'s plan to use taped lectures in the training sessions. Davisson further testified that one of the participants at this meeting told him "We are going to get you, Whitey", ⁴ and that he inferred from the tone of the meeting that if he and the B.S.R.L. investors "wanted to continue to be in good shape" B.S.R.L. should withdraw from the contract.

Following this meeting the appellants, Davisson, and the B.S.R.L. investors met with a contracting officer from the Department of Labor to discuss the conflicts which had arisen with regard to the services to be rendered by B.S.R.L. and those to be rendered by Fellowship, Inc., under the contract. The contracting officer testified that it was obvious to him that B.S.R.L. wanted to withdraw as a subcontractor from the contract. At the conclusion of this meeting the Labor Department contracting officer composed an agreement, signed by all parties, whereby Davisson's offer to withdraw B.S.R.L. from the contract was accepted "in the best interests of harmony and performance under the contract". Under this agreement Fellowship, Inc., agreed to assume B.S.R.L.'s obligations under the contract. The members of the Consortium, however, became dissatisfied with the performance of Fellowship, Inc., and at a meeting on April 2, 1970, voted to dismiss Davis and Fellowship as subcontractors under the contract.

A contracting officer of the Department of Labor wrote to appellant Baccus on April 20, 1970, informing him of the Department's intention to cancel the Consortium's contract in ten days unless the following conditions were complied with during that time:

(1) that all trainees be assigned to Consortium members' payrolls and paid their salaries, and that a list of all trainees and their employers be submitted to the Department;

(2) that time and attendance records and a payroll system be established;

(3) that a disbursement procedure for government funds be established;

(4) that a copy of the subcontract for supportive services as required under the contract be submitted to the Department.

In reply to the above letter Baccus wrote to the contracting officer on April 30, 1970. Baccus stated in his letter that the Consortium would comply with the second and third conditions in the Department's letter, but that it was unable to comply with the fourth condition because of Davis' non-performance of his duties as subcontractor. With regard to the first condition in the letter of April 20 Baccus asserted that although he had contacted all participants in the Consortium, they had refused to honor their agreements with the Consortium and to accept the number of trainees agreed upon. For this reason, according to Baccus, he was unable to submit a list of the number of trainees and the Consortium members to whom they were assigned. Upon receipt of Baccus' letter the contracting officer on behalf of the Department of Labor on May 1, 1974, cancelled the contract, and notified the Consortium of his action.

II. THE STATUTE OF LIMITATIONS

In Roberts v. United States, 5 Cir. 1969, 416 F.2d 1216, 1220, we stated the essential elements of...