U.S. v. Hicks, 79-1859

• Decision Date: 18 April 1980
• Docket Number: No. 79-1859,79-1859
• Citation: 619 F.2d 752
• Parties: UNITED STATES of America, Appellee, v. Orville N. HICKS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 752

619 F.2d 752

UNITED STATES of America, Appellee, v. Orville N. HICKS, Appellant.

No. 79-1859.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 11, 1980.

Decided April 18, 1980.

David R. Gienapp, Arneson, Issenhuth & Gienapp, Madison, S. D., for appellant.

Herbert A. Becker, Sp. Asst. U.S. Atty., Fargo, N. D. (argued), on brief are Terry Pechota, U.S. Atty., Sioux Falls, S. D., on brief, for appellee.

Before LAY, Chief Judge, and BRIGHT and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

For a number of years, including 1976, 1977 and 1978, Orville N. Hicks, hereinafter at times called defendant, was the Superintendent of the Lower Brule Indian Agency in Lower Brule, South Dakota. As Superintendent he administered in cooperation with the Indians certain federal programs involving expenditures of federal funds, including a drought relief program that was operative in 1977 and 1978. In connection with that program the defendant submitted various written financial statements and vouchers to his agency, the Bureau of Indian Affairs (BIA), which is, of course, an agency of the United States.

In March, 1979 the federal grand jury for the District of South Dakota returned an indictment charging the defendant with embezzlement of government funds and property in violation of 18 U.S.C. § 641, and with having willfully made false statements to the BIA in violation of 18 U.S.C. § 1001. The embezzlement counts were Counts I, V and VI. The false statement counts were Counts II, III and IV. The first four counts were related to each other. Counts V and VI bore no relation to the earlier counts.

The defendant pleaded not guilty to all counts and was tried to a jury with District Judge Donald J. Porter presiding.

Mr. Hicks was found not guilty on all three of the embezzlement counts but was found guilty on the three false statement counts, Counts II, III and IV.

Having been convicted, the defendant was sentenced on Count II to imprisonment for two years, but with only sixty days to be served in a jail type of institution; the remainder of the term was to be spent on probation. Defendant received the same sentence on Count III and Count IV with the stipulation that the sentences on all three counts were to run concurrently.

The defendant was also fined $5,000.00 on each count but with the stipulation that the fines were concurrent. That is, the defendant could satisfy all three fines by paying one of them.

The defendant duly prosecuted this appeal.

For reversal the defendant contends that the trial court erred in denying his motion or motions for judgment of acquittal, which contention raises the question of the sufficiency of the evidence to sustain the verdicts on the false statement counts.

It is also contended that the trial court erred in instructing the jury that the allegedly false statements contained in the documents submitted to BIA were material as a matter of law, and that the trial court erred in its answer to a certain question propounded by the jury in the course of its deliberations.

Insofar as pertinent to this case, § 1001 provides:

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.

Another statute that we should mention is the familiar "aiding and abetting" statute, 18 U.S.C. § 2. That statute provides in substance that a person is guilty of an offense not only if he commits it directly and personally but also if he knowingly "aids, abets, counsels, commands, induces or procures its commission . . . ." 18 U.S.C. § 2(a).

I.

In order to convict the defendant on the false statement counts it was necessary for the government to prove by the evidence and beyond a reasonable doubt that the documents in question related to a matter within the jurisdiction of a department or agency of the United States, which they unquestionably did; that the respective documents contained false, fictitious or fraudulent statements or representations; that those false statements were material; that the defendant prepared and submitted the documents to the BIA, or that he was so involved in the preparation and submission of the documents as to bring 18 U.S.C. § 2(a) into play; that the defendant knew that the documents contained or when completed would contain false, fraudulent, or fictitious statements; and that in his dealings with the BIA based on the documents under consideration he acted "willfully," as that term is now generally understood in the field of federal criminal law. See in that connection the definition of "willfully" that appears as § 14.06 of E. Devitt & C. Blackmar, Federal Jury Practice and Instructions (3d ed. 1977); see also the cases cited following that section.

While it was necessary for the government to prove, among other things, that the alleged false statements or representations were material, it was not necessary for the government to show that its agency actually relied on the documents here involved, or that the government actually suffered financial loss as a result of the alleged conduct of the defendant. See United States v. Jones, 464 F.2d 1118, 1121-22 (8th Cir. 1972), cert. denied, 409 U.S. 1111, 93 S.Ct. 920, 34 L.Ed.2d 692 (1973); United States v. Godel, 361 F.2d 21, 24 (4th Cir.), cert. denied, 385 U.S. 838, 87 S.Ct. 87, 17 L.Ed.2d 72 (1966).

In passing on the sufficiency of the evidence to sustain the conviction we must view the whole body of the evidence in the light most favorable to the government and give to the government the benefit of all inferences in its favor reasonably to be drawn from the evidence. United States v. Berry, 599 F.2d 267, 268 (8th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979), and cases cited.

Where in a federal criminal prosecution it is necessary for the government to prove the existence of a particular state of mind or intent on the part of the defendant, the requirement may be met by circumstantial evidence, and as a matter of fact it frequently cannot be met in any other way. See United States v. Arnold, 543 F.2d 1224, 1225-26 (8th Cir. 1976), cert. denied, 429 U.S. 1051, 97 S.Ct. 765, 50 L.Ed.2d 768 (1977); United States v. Wisdom, 534 F.2d 1306, 1308 (8th Cir. 1976); United States v. Diggs, 527 F.2d 509, 512 (8th Cir. 1975).

II.

Count I of the indictment charged that on or about June 19, 1978 the defendant embezzled, stole and converted to his own use the sum of $4,240.00 which was money of the United States and had come into the possession of the defendant in his capacity as Superintendent of the Lower Brule Agency, BIA, in violation of 18 U.S.C. § 641. The defendant was found not guilty on that count, but we mention it here because it is related to Counts II, III and IV, which charged violations of 18 U.S.C. § 1001, and on which counts the defendant was found guilty. ¹

Count II charged that on or about October 20, 1977 the defendant willfully and knowingly made and used, and aided and abetted the making and using of a statement that was materially false and was in connection with a matter within the jurisdiction of BIA. Specifically, the charge was that on the occasion in question the defendant knowingly and willfully altered and aided and abetted in the alteration of an "estimate" that had been submitted by a business concern identified as "Hickey Drilling" so that the "estimate" after alteration resembled an "invoice."

Count III charged in substance that on or about December 1, 1977 the defendant, with requisite knowledge and intent, submitted to BIA a purported purchase order and amendment thereto, and in that connection falsely stated that the items mentioned in the purchase order "had been inspected, accepted and received by him and conformed to contract, all in violation of 18 U.S.C. § 1001."

And Count IV charged that at or about the same time the defendant, with the requisite knowledge and intent, submitted to BIA a false, fictitious and fraudulent document that purported to be a statement from "Kersting Ditching" showing a total of $1240.80 due for "pipeline construction."

The documents referred to in Counts II, III and IV of the indictment were in fact submitted to the BIA and resulted ultimately in the issuance of two government checks in favor of the defendant. One of those checks was in the sum of $3,000.00; the other was in the sum of $1240.00. Those two checks make up the sum of $4,240.00 mentioned in Count I of the indictment.

The evidence reflects that those checks were held for a time in a safe in the office of the Lower Brule Agency. Later they were deposited in an interest bearing savings account in the name of the defendant in a local bank.

There was evidence that while cosignatures were required before the defendant could withdraw the proceeds in question from the bank, it also appears that he was able to withdraw the funds without the cosignatures, and that he used the money for his own benefit. After an investigation had been commenced, the defendant repaid the money to the government with interest.

The fact of the repayment evidently influenced the jury in finding the defendant not guilty on Count I, but the fact that he was acquitted on that count did not necessarily entitle him to acquittals on the false statement counts.

III.

We turn now to the question of the sufficiency of the evidence to sustain the defendant's convictions on Counts II, III and IV.

As in many cases of this kind, the evidence can be viewed from either one of two standpoints, one favorable to the government, and the other favorable to the defendant. As has been seen, we are required to view the evidence in this case in...