U.S. v. Fowler, 83-4713

• Decision Date: 20 June 1984
• Docket Number: No. 83-4713,83-4713
• Citation: 735 F.2d 823
• Parties: 15 Fed. R. Evid. Serv. 1853 UNITED STATES of America, Plaintiff-Appellee v. Andrew J. FOWLER, and Edgar E. Fowler, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 823

735 F.2d 823

15 Fed. R. Evid. Serv. 1853

UNITED STATES of America, Plaintiff-Appellee v. Andrew J. FOWLER, and Edgar E. Fowler, Defendants-Appellants.

No. 83-4713.

United States Court of Appeals, Fifth Circuit.

June 20, 1984.

J. Michael Small, Kathrine S. Williamson, Alexandria, La., for defendants-appellants.

Joseph S. Cage, Jr., U.S. Atty., D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before GEE, RANDALL, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Andrew J. (A.J.) Fowler and his brother, Edgar E., were charged in a federal grand jury indictment with conspiracy to defraud the United States (Count I) and mail fraud (Counts II and III) in violation of 18 U.S.C. Secs. 371, 1341, and 1342. ¹ A jury convicted Edgar of conspiracy, but acquitted him on the two substantive counts. A.J. was convicted on all three counts. The Fowlers appeal their convictions on the grounds that: (1) the evidence was insufficient to convict them; (2) the district court erred in refusing to give certain of their requested jury instructions; (3) the district court erred in making certain evidentiary rulings; and (4) the district court erred in denying their Supplemental Motion for New Trial based on newly discovered evidence. We conclude that the evidence was sufficient to sustain appellants' convictions for conspiracy to defraud the United States. While we also hold that the evidence was sufficient to convict A.J. Fowler of mail fraud, we conclude that the trial court erred in refusing to give the substance of A.J.'s requested jury instruction that good faith is a defense to the charge of mail fraud. Accordingly, we affirm the conspiracy convictions, but reverse A.J.'s conviction for mail fraud and remand for a new trial.

I. Facts

A.J. Fowler was an independent businessman who bid on contracts for refuse disposal and grounds maintenance at federal facilities across the nation. His brother Edgar worked for him as the supervisor of the "grass job" at Fort Hood in Killeen, Texas. On September 1, 1981, the Procurement Division of the United States Army at Fort Bliss, Texas, advertised a contract solicitation for the collection and disposal of refuse. The date for opening bids was February 19, 1982, at 10:30 a.m. Under defense acquisition regulations, all bids had to have been received prior to bid opening. In the event a bid was received after bid opening, it was ineligible unless it was postmarked five days prior to the bid opening date. In this instance, eligible late bids had to have been postmarked prior to February 14, 1982.

On February 12, 1982, A.J. mailed his original bid from Bunkie, Louisiana, in a certified letter numbered P-208-073-776 (776). This bid was received at Fort Bliss prior to the bid opening date, which was February 19, 1982. On February 13, 1982, A.J. mailed an envelope to Edgar in Pineville, Louisiana, lightly addressed in pencil and bearing certified mail number P-208-073-777 (777). Because of prior irregularities noted by other procurement officers and the United States Postal Service concerning A.J.'s previous bidding activities, a "mail cover" was placed on mail addressed to Edgar. ² United States Postal Investigators therefore intercepted envelope "777" and marked it with an invisible substance so that it could be identified if it subsequently reentered the mails. The envelope was then returned to the Pineville post office and delivered to Edgar's residence. On February 16, A.J. retrieved envelope "777" and erased the addresses, leaving the stamps and the February 13 postmark.

On February 19, the bid opening date, A.J. called the Fort Bliss Procurement Office and made inquiry concerning the lowest bid received. On February 22, A.J. advised a procurement officer that he had mailed an amended bid in an envelope with certified mail number "776" or "778". A.J. had in fact readdressed, in ink, envelope "777" which had been retrieved from Edgar's residence and had replaced the certified mail number "777" with "778". When "778" was received at Fort Bliss, a postal inspector signed for it and personally delivered it to the contracting supervisor, where it was opened in the presence of two postal inspectors. The envelope was then returned to the postal service for inspection. Upon examination by shortwave light, postal investigators discovered that envelope "778" was the same envelope (formerly envelope "777") that had been previously delivered to Edgar. On the basis of the bid contained in "778", A.J. was awarded the disposal contract.

II. Sufficiency of the Evidence

In examining the appellants' attack on the sufficiency of the evidence, we must decide whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). In doing so, we must view the evidence and the inferences that may be drawn from it in the light most favorable to the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

A. Conspiracy

Appellants contend that the government failed to prove the existence of a conspiracy between them to defraud the United States. ³ In support of this argument, they assert that the evidence proved that A.J., and A.J. alone, prepared the bid sheets, addressed the envelopes containing the bids, altered envelope "777", and caused the mailings of the bid and amended bid. In order to prove a conspiracy, it is incumbent upon the government to show an agreement by two or more persons to combine their efforts for an illegal purpose and an overt act by one in furtherance of the agreement. United States v. Lyons, 703 F.2d 815, 822 (5th Cir.1983); United States v. Shaddix, 693 F.2d 1135, 1139 (5th Cir.1982); United States v. Reynolds, 511 F.2d 603, 607 (5th Cir.1975). Moreover, it must be proved beyond a reasonable doubt that the defendant knew of the essential nature of the conspiracy and intended to join or associate with the objective of the conspiracy. United States v. Montemayor, 703 F.2d 109, 115 (5th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983); United States v. Pozos, 697 F.2d 1238, 1241 (5th Cir.1983); United States v. Jordan, 627 F.2d 683, 686 (5th Cir.1980). It is not necessary, however, to prove that the defendant was intimately familiar with every single detail of the conspiratorial plan. United States v. Fernandez-Roque, 703 F.2d 808, 814-15 (5th Cir.1983).

In the instant case, the record reveals no direct evidence that Edgar and A.J. knowingly or willingly joined in the scheme charged in the indictment. It is well settled, however, that a conspiratorial agreement may be established through circumstantial evidence. United States v. Rogers, 719 F.2d 767, 769 (5th Cir.1983). The evidence, viewed most favorably to the prosecution, showed that A.J. had a grounds maintenance contract with the United States Army at Fort Hood, Texas, and that Edgar was not only A.J.'s brother, but also worked for A.J. as the supervisor of the grass cutting job under that contract. A.J. mailed envelope "777" from Bunkie, Louisiana, to Edgar's home address in Pineville, Louisiana, on February 13, 1982. On February 16, postal carrier James delivered envelope "777" to Edgar, who signed a receipt for it. The same envelope, containing A.J.'s amended bid on the refuse disposal contract, now bearing certified mail number "778" and postmarked February 13, 1982, was delivered to the procurement office at Fort Bliss on February 25. From this evidence the jury could reasonably infer that Edgar returned, conveyed, or delivered envelope "777" to A.J. for its reuse for an illegal purpose. Contrary to the argument urged by Edgar, it was not necessary that the government prove the means by which envelope "777" was returned to A.J. Nor was it necessary to prove that Edgar actually participated in the preparation of the bids, the alteration of envelope "777", or the actual depositing of the bids into the mail stream. Proof of an overt act by one of the conspirators, in this case A.J., was all that was required. See Lyons, 703 F.2d at 822. Edgar also suggests that his conviction was premised solely on the fact that he and A.J. are brothers. Indeed, mere close association with a conspirator will not support an inference of participation in a conspiracy. Id. In this case, however, Edgar's personal contact with envelope "777" plus the appellants' close employment relationship, gives rise to the inference that Edgar was well aware of the essential nature of the scheme. Taken as a whole, the jury could have reasonably concluded that the evidence showed guilt beyond a reasonable doubt.

B. Mail Fraud

The mail fraud statute, 18 U.S.C. Sec. 1341, provides in pertinent part:

Whoever, having devised ... any scheme or artifice to defraud ... for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon ... any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

A.J. contends that there was insufficient evidence to convict him of mail fraud because the government failed to prove that he contemplated some actual harm would result to the United States from his action or that harm actually resulted from his actions. In fact, he insists that submission of the amended bid actually saved the government money. The indictment charged that the purpose of the scheme was:

[T]o defraud the United States of and concerning its...