U.S. v. Hixon, 92-5220

• Citation: 987 F.2d 1261
• Decision Date: 11 March 1993
• Docket Number: No. 92-5220,92-5220
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wesley E. HIXON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1261

987 F.2d 1261

UNITED STATES of America, Plaintiff-Appellee, v. Wesley E. HIXON, Defendant-Appellant.

No. 92-5220.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 7, 1992.

Decided March 11, 1993.

Gary Humble, Asst. U.S. Atty. (argued and briefed), Jerry G. Cunningham, U.S. Atty., Office of the U.S. Atty., Chattanooga, TN, for plaintiff-appellee.

William H. Ortwein (argued and briefed), Ortwein & Tidwell, Chattanooga, TN, for defendant-appellant.

Before: KENNEDY and BATCHELDER, Circuit Judges; and ENGEL, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Defendant Wesley E. Hixon appeals his jury conviction and sentence for making a false and material statement and representation on claims he submitted for continuing disability compensation. Defendant contends on appeal that the District Court erred in refusing to dismiss the indictment because it was duplicitous; that the defendant is not guilty as a matter of law; that the District Court erred in its instruction to the jury; and that the District Court erred in determining defendant's sentence. Finding the evidence insufficient to support the conviction, we reverse.

I.

In 1974, the defendant began working for the Tennessee Valley Authority (TVA). On February 21, 1989, in an accident occurring during the performance of his assigned duties, defendant sustained a strained right knee. As a result of this injury, defendant underwent four surgical procedures. He claimed he was unable to work because his job required him to walk on rough terrain. Between the time defendant was injured and the time he returned to work in October of 1990, defendant was considered partially or totally disabled.

On July 12, 1989, defendant submitted a Form CA-8 to the TVA which was then forwarded to the Department of Labor (DOL), Office of Workers' Compensation Programs (OWCP). The CA-8 is a form completed by a federal employee informing the OWCP that he has lost pay as a result of a work-related injury and is claiming compensation benefits. This form is used for short-term disabilities and covered the period July 1 through July 15, 1989. Defendant submitted an additional CA-8 form, dated July 28, 1989, claiming compensation as a result of pay loss from July 16 through July 31, 1989. To determine the amount of compensation that should be paid (or if compensation should be paid at all), the CA-8 form requires the applicant to list any salaried or self-employment he has engaged in during the period for which disability compensation is sought. ¹ On both forms, the defendant wrote that this information was "not applicable."

Thereafter, it was determined that defendant was entitled to regular benefits which he received every four weeks. In connection with these benefits, the DOL sent the defendant a Form CA-1032. The cover letter accompanying this form explains that the purpose of the form is to obtain information to be used to determine the claimant's qualifications for continued benefits "or to determine whether an adjustment in benefits may be warranted." To achieve this purpose, the form contains the following questions:

Part A. Employment History

1. Employment other than Self-Employment. Under this heading, you must report all employment, other then self-employment, for which you received salary, wages, sales commissions, piecework, or other payment....

a) Were you employed by an employer during the time period covered by this form?

....

2. Self-Employment. Earnings from self-employment (such as farming, sales, service, operating a store, business, etc.) must be reported. Report any such enterprise in which you worked, and from which you received revenue, even if it operated at a loss or if profits were reinvested. You must show as "rate of pay" what it would have cost you to have hired someone to perform the work you did.

a) Were you self-employed during any time covered by this form?

Defendant filled out two of these forms, one dated November 15, 1989 and the other dated April 27, 1990. On these two forms, defendant answered "No" to both questions.

In March of 1991, the TVA Office of Inspector General, fraud division, received three phone calls regarding defendant. Thereafter, an agent, Duane Broome, began an investigation to determine whether defendant was misusing or abusing the worker's compensation program. In March, Agent Broome saw the defendant, with several of his associates, working a booth at the Dixie Deer Classic, an outdoor show where booking or travel agents display their wares in an effort to persuade potential customers to use their services. TVA agents observed the defendant carrying and setting up a portable booth with various stuffed animal heads used for wall mounts. They also saw him carrying his work table, supplies, brochures, and paraphernalia to promote his business. Subsequent investigation of defendant's business records revealed that defendant had worked numerous other shows and took several (business and) hunting trips for Woods and Water Outdoor Consultants while on disability.

Agent Broome discovered that Woods and Water Outdoor Consultants was a Georgia (Subchapter S) corporation that provided, planned, and booked fishing, hunting and outdoor vacations. Defendant was the sole stockholder (100% owner) of the corporation, as well as the President, Treasurer, registered agent, and sole member of the Board of Directors. Defendant did not receive a salary from the corporation, but allegedly earned income on commissions received from those who utilized his "travel agent type" services. ²

In August, 1991, Agents Broome and Derryberry went to defendant's home to interview him. In front of the house was a large red trailer bearing the name "Woods and Water Outdoor Consultants." Defendant explained to the agents that Woods and Water was a business he had started six years previously. However, defendant initially told the agents the company was his wife's business, that she attended all the shows, and that his personal involvement was nothing more than staying home and answering the phone and taking one business related trip in a year's time.

Agent Broome then confronted defendant with the information he had gathered during the course of his investigation, e.g., he had read the company brochures and paperwork and the wife's name appeared nowhere; he had attended and videotaped several shows, but never saw the defendant's wife. According to Agent Broome's testimony, defendant "looked at me with a blank stare, looked back out the window and looked back at me and he said you got me." Defendant then told the agents "I've been employed since day one." Finally, defendant broke down, cried, and asked what he had to do to get this behind him as quickly as possible. On August 30, 1991, defendant's employment at TVA was terminated due to his failure to report his activities to OWCP.

On October 10, 1991, a superseding indictment was filed charging defendant with four (4) counts of knowingly and willfully making a false material statement and representation and knowingly and willfully concealing by scheme, trick, and device a material fact; "that is, the defendant submitted 'Claims for Continuing Compensation on Account of Disability' and annual disclosure statements falsely indicating that he was not self-employed and concealing his self-employment and ownership of Woods and Water Outdoor Consultants, Inc.," in violation of 18 U.S.C. § 1001. ³ On November 6, 1991, the jury found defendant guilty on all four counts. Defendant was sentenced to a term of ten (10) months incarceration on each count, to be served concurrently, and was ordered to make restitution of $20,089.64. This appeal followed.

II.

The defendant argues that the District Court erred in failing to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(2) for duplicity. A duplicitous indictment charges two or more separate and distinct crimes in a single count. United States v. Duncan, 850 F.2d 1104, 1108-09 n. 4 (6th Cir.1988), appeal after remand, 881 F.2d 1077, cert. denied sub. nom., 493 U.S. 1025, 110 S.Ct. 732, 107 L.Ed.2d 751 (1990). The indictment in this case charges violations of 18 U.S.C. § 1001, which provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or 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.

Defendant contends that because the indictment charges defendant in the conjunctive and does not follow the exact wording of the statute (i.e., it alleges the defendant made a false statement and concealed by scheme, etc., a material fact), the indictment improperly charges two separate offenses in one count and should be dismissed for duplicity.

We agree with the Ninth Circuit "that Congress, in enumerating several different types of fraudulent conduct in Section 1001, did not create separate and distinct offenses." United States v. Uco Oil Co., 546 F.2d 833, 838 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). The court went on to hold that "once it is determined that the statute defines but a single offense, it becomes proper to charge the different means, denounced disjunctively in the statute, conjunctively in each count of the indictment." Id. (citing United States v. Alsop, 479 F.2d 65, 66 (9th Cir.1973)). The Eleventh Circuit reached a similar result, finding that:

[w]here a penal statute [such as 18 U.S.C. § 1001] prescribes several alternative ways in which the statute may be violated and each is subject to the same punishment, however, the indictment may charge any or all of the acts conjunctively, in...