U.S. v. Gibson

• Decision Date: 01 August 1989
• Docket Number: No. 88-5944,88-5944
• Citation: 881 F.2d 318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry GIBSON, d/b/a Reid & Gibson Texaco, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 318

881 F.2d 318

UNITED STATES of America, Plaintiff-Appellee, v. Larry GIBSON, d/b/a Reid & Gibson Texaco, Defendant-Appellant.

No. 88-5944.

United States Court of Appeals Sixth Circuit.

Argued March 30, 1989.

Decided Aug. 1, 1989.

Joseph M. Whittle, U.S. Atty., Terry Cushing, argued, David Grise, Asst. U.S. Atty., Louisville, Ky., for plaintiff-appellee.

Scott T. Wendelsdorf, argued, Ogden & Robertson, Louisville, Ky., for defendant-appellant.

Before: MERRITT and NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

Defendant Larry Gibson appeals from a conviction for conspiracy, in violation of 18 U.S.C. Sec. 371, to violate 18 U.S.C. Sec. 1001 by making a false statement in a matter within the jurisdiction of a federal agency. Citing Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the defendant argues that his conviction must be reversed because the United States was not the "target" of the conspiracy to make a false statement. He also argues that the false statement was not made in a matter within the jurisdiction of a federal agency, and he maintains that the statute requires the government to charge and prove the defendant's knowledge of federal involvement. We disagree, and we shall affirm the conviction.

I

Mr. Gibson and his business partner, John Reid, owned Reid & Gibson Texaco, a gas station in Morganfield, Kentucky. The Tennessee Valley Authority, an agency of the United States government, owned nearby land that the Peabody Coal Company mined for coal under a cost-plus contract. Reid & Gibson Texaco sold tires to Peabody for use on trailer-trucks used in the mining operation. There was no direct contract between Reid & Gibson Texaco and TVA, but the invoices submitted to Peabody did use purchase order numbers assigned by TVA.

TVA's contract with Peabody required Peabody to submit to TVA audits, required that Peabody's subcontractors agree to obey certain federal laws and regulations, and required advance TVA approval for any Peabody subcontacts exceeding $100,000. At TVA's instance, Reid & Gibson Texaco was required to sign a document agreeing to comply with a three page litany of federal requirements and to "file reports with the TVA Contracting Officer" if requested. The document was designated as an "addendum" to Peabody's purchase orders and was signed by Mr. Gibson's business partner, John Reid, on behalf of Reid & Gibson Texaco. It clearly identified Peabody as a TVA contractor and specifically called attention to the prohibition in 18 U.S.C. Sec. 1001 against making false statements in matters within the jurisdiction of a government agency.

At trial there was evidence that Reid and Gibson overcharged Peabody by at least $120,000 over a two and one-half year period. They charged Peabody for tires that were never delivered, inflated charges on invoices, and got Peabody employees to sign authorizations for charges in blank. Peabody employees received free tires, car washes, and other services from the gas station, and a few employees received such big-ticket items as a stove, a refrigerator, and a VCR. The total cost of the goods and services thus provided Peabody people was about $67,000. Peabody employees rarely, if ever, checked to see that the tires for which they were submitting charges to TVA were actually delivered to Peabody.

Messrs. Reid and Gibson were indicted by a federal grand jury on a charge of conspiracy to defraud the United States and commit an offense against the United States, i.e., to make false statements in a matter within the jurisdiction of a federal agency. Mr. Reid pleaded guilty. Mr. Gibson's case was tried to a jury. At the close of the government's case, Mr. Gibson moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. Citing Tanner, 483 U.S. 107, 107 S.Ct. 2739, the district court granted the motion with respect to the language in the indictment charging conspiracy to defraud the United States. The motion was denied as to the language charging conspiracy to violate 18 U.S.C. Sec. 1001. Mr. Gibson was convicted, sentenced to three years in prison, and ordered to pay restitution of about $62,000. This appeal followed.

II

18 U.S.C. Sec. 371 provides in pertinent part:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both." (Emphasis added.)

The indictment in this case charged one conspiracy with two objects: to defraud the United States and to commit an offense against the United States. The district court granted the defendant's motion for judgment of acquittal on the charge of conspiring to defraud the United States, relying on Tanner, supra. ¹ On appeal, Mr Gibson argues that Tanner requires acquittal on the charge of conspiracy to commit an offense against the United States as well.

Tanner defines the class of conspiracies that may be prosecuted as conspiracies to defraud the United States. Citing cases interpreting the word "defraud" as used in other federal criminal statutes, the Court held that only conspiracies of which the United States is the "target" are conspiracies "to defraud the United States" within the meaning of Sec. 371. 483 U.S. at 130, 107 S.Ct. at 2752-53. It was unclear to the Tanner Court whether the target of the conspiracy involved in that case was a private business or the United States, so the Court remanded the case with instructions to make such a determination. 483 U.S. at 132, 107 S.Ct. at 2753-54. The Court noted that a conspiracy could be directed at the United States as a target and yet be effected through a third-party such as a private business. Id.

Tanner does not discuss the second class of conspiracies criminalized by Sec. 371, conspiracies "to commit any offense against the United States." It has long been established that the words "offense against the United States" encompass all offenses against the laws of the United States, not just offenses directed at the United States as target or victim. Thomas v. United States, 156 F. 897 (8th Cir.1907); Radin v. United States, 189 F. 568 (2d Cir.1911). The precursor of Sec. 371, the Act of March 2, 1867, ch. 169, Sec. 30, 14 Stat. 471, 484, expressly prohibited conspiracies "to commit any offense against the laws of the United States." The words "the laws of" were deleted as superfluous in 1873 by a revision commission that had no authority to make substantive changes in the law. Thomas, 156 F. at 899. The federal conspiracy statute's prohibition against conspiracies to commit any offense against the United States has historically been interpreted "as a broad and comprehensive provision denouncing conspiracies to commit offenses created by any of the statutes of the United States." Id. at 901 (emphasis supplied). We do not believe the Tanner decision was intended to redefine the words "offense against the United States."

In United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), the Supreme Court held "that where knowledge of the facts giving rise to federal jurisdiction is not necessary for conviction of a substantive offense ... such knowledge is equally irrelevant to questions of responsibility for conspiracy to commit that offense." 420 U.S. at 696, 95 S.Ct. at 1269. As we shall see in the next section of this opinion, knowledge of the facts giving rise to federal jurisdiction is not necessary for conviction of violating Sec. 1001. Tanner did not purport to upset Feola, and if, as Feola suggests, the prosecution need not prove for Sec. 1001 purposes that the defendant had knowledge of federal involvement, it is difficult to see how the prosecution can be required to prove that the government was the intended "target" of the conspiracy.

We recognize that our resolution of this issue differs from that of the Court of Appeals for the Eleventh Circuit in United States v. Hope, 861 F.2d 1574 (11th Cir.1988). Like the defendants in the present case, the defendants in Hope had been charged in a one-count indictment with conspiracy to do two things: defraud the United States and violate 18 U.S.C. Sec. 1001. Without extensive discussion, the court held that the language charging conspiracy to violate Sec. 1001 failed to state an offense because it failed to charge that the United States was the "target" of that conspiracy. We think this question should be decided the other way.

III

Mr. Gibson also argues that what he was allegedly conspiring to do did not violate Sec. 1001, and thus could not rise to the dignity of an offense against the United States. 18 U.S.C. Sec. 1001 provides, in pertinent part "Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

Mr. Gibson argues that his statements were not made "in any matter within the jurisdiction of any department or agency of the United States", and that in any event the government should have been required to charge and prove that the defendant knew of the existence of "the jurisdiction of any department or agency of the United States." We examine these arguments in turn.

A

The Supreme Court has repeatedly held that "the term 'jurisdiction' should not be given a narrow or technical meaning for the purposes of Sec. 1001." Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969); see also United States v. Rodgers, 466 U.S. 475, 479-82, 104...