U.S. v. Hooper, 78-1621

• Citation: 596 F.2d 219
• Decision Date: 04 April 1979
• Docket Number: No. 78-1621,78-1621
• Parties: 4 Fed. R. Evid. Serv. 1306 UNITED STATES of America, Plaintiff-Appellee, v. Raymond L. HOOPER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 219

596 F.2d 219

4 Fed. R. Evid. Serv. 1306

UNITED STATES of America, Plaintiff-Appellee, v. Raymond L. HOOPER, Defendant-Appellant.

No. 78-1621.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 3, 1979.

Decided April 4, 1979.

Michael F. Hupy, Milwaukee, Wis., for defendant-appellant.

Negatu Molla, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and EAST, Senior District Judge. ^*

EAST, Senior District Judge.

Raymond L. Hooper (Hooper) appeals the denial of his post-trial motions and judgment of conviction and sentence to custody entered by the District Court on May 3, 1978 following a jury trial for violation of 18 U.S.C. § 1001. ¹

We note jurisdiction under 28 U.S.C. § 1291, and affirm.

INDICTMENT AND CONVICTIONS:

Hooper was charged in a nine count indictment. Count 1 charged that Hooper, between July 16, 1974 and December 16, 1974, in violation of § 1001, willfully and knowingly misrepresented the signatures on certain stipend rosters as the signature of Diane Veasley in acknowledgment of the receipt of stipend payments, although Hooper knew that such signatures were false and fraudulent and that such stipends had not been paid to Diane Veasley. The substance of Counts 2 through 9 was identical to that of Count 1 but alleged different dates and false signatures of different persons.

The jury found Hooper guilty of Counts 1, 3 and 8 and not guilty on the remaining six counts.

The District Court sentenced Hooper to 90 days in custody on Count 1 and concurrent 90 days custody on each of Counts 3 and 8.

FACTS:

The evidence presented at trial showed that Hooper was the associate director of the Upward Bound Program (UBP) at the University of Wisconsin-Milwaukee (UW-M) and that one of his duties was to supervise stipend payments to students participating in the program. The UBP was created by Congress and administered and funded under the Department of Health, Education and Welfare (HEW). The funds received from HEW were maintained by the University in a separately designated account.

HEW and the controlling federal statutes and regulations set forth the amount and the frequency of stipend payments that were to be paid to students participating in the program. The stipend rosters were prepared and utilized by UW-M to provide internal control over stipend disbursals and to provide an "audit trail" to enable federal program auditors to determine how the federal funds were disbursed.

These stipend rosters were an integral part of the UBP. A list of students in the program eligible to receive stipends for the period was provided to the university cashier every two weeks. The cashier would then disburse ten dollars to Hooper from the Upward Bound account for each name listed. Students were to sign the rosters when they received their stipends. Hooper was to return ten dollars for every named student who had not signed the roster. In this manner, every stipend was accounted for. This stipend roster was thus utilized in drawing upon the Government-funded Upward Bound account.

The testimony showed that even though the stipend rosters were not prepared by HEW, they were part of UW-M's procedure for internal control of the UBP. Such a system of internal controls and accounting was mandated by the HEW Audit Guide. The testimony further showed that Hooper knew of the relationship between the UBP and HEW.

An audit of the UBP for the period when Hooper was in charge of disbursement of funds was conducted and it was concluded that $1,010.00 was unaccounted for. One of Hooper's superiors, Dr. Spaights, required that he pay said amount to UW-M. Neither Spaights nor Hooper's immediate supervisor, Clara New, accused Hooper of theft or intentional misconduct; the request for payment was based on mismanagement. Dr. Spaights threatened to fire Hooper if any intentional misconduct on his part were discovered, but he became satisfied that there was none, and Hooper remained employed at UW-M until he accepted another position.

Hooper admitted both in a statement given to the FBI and during trial that he, on occasion, signed the names of students on stipend rosters, but that on each and every occasion he either gave the student his stipend money or reasonably assumed he had received the same.

POST-TRIAL MOTIONS:

After trial, Hooper timely filed the following motions:

1. Motion for Judgment of Acquittal (Fed.R.Crim.P. 29, insufficient evidence to sustain the conviction);

2. Motion in Arrest of Judgment (Fed.R.Crim.P. 34, non-compliance with the Speedy Trial Act of 1974);

3. Motion for Judgment of Acquittal or a New Trial (Fed.R.Crim.P. 29 and 33, preindictment and pretrial delay denied due process; exculpatory evidence was withheld by the Government; and perjury of Government witnesses); and

4. Motion for New Trial (Fed.R.Crim.P. 33, accumulated errors by the District Court in receiving evidence of Hooper's voluntary payment of $1,010 to UW-M; implying Hooper's guilt to the jury during the Court's questioning of the appellant; commending a grand jury in the presence of some of the jurors in this case for returning an indictment in another case; improper statements of the U. S. Attorney; withholding of exculpatory evidence; and intentional false testimony of Government witnesses).

On May 3, 1978, the District Court denied each of these motions and entered the judgment of conviction and sentence.

ISSUES ON REVIEW:

Hooper asserts seven issues on appeal. We deem the following issues to be dispositive of the appeal: ²

1. Did the District Court err in denying Hooper's motion for a judgment of acquittal on the grounds that the Government failed to prove that the stipend rosters were within the jurisdiction of the United States or that the alleged false statements were fraudulently made?

2. Did the District Court err in denying Hooper's motion to dismiss, or in the alternative, motion in arrest of the judgment for the Government's alleged failure to try Hooper within the time limit set by the Speedy Trial Act, 18 U.S.C. § 3161, Et seq.?

3. Did preindictment and pretrial delay prejudice Hooper and deny him his constitutional rights?

4. Did the District Court err in denying Hooper's motions for judgment of acquittal or for a new trial for the reason of the Government's alleged failure to provide exculpatory evidence before trial or the alleged perjury of Government witnesses?

5. Did the District Court err in admitting evidence of Hooper's voluntary payment of $1,010 following the audit and request of UW-M?

DISCUSSION AND DISPOSITION:

Issue 1:

Hooper contends that insufficient evidence was adduced at trial to prove the requisite jurisdictional element under 18 U.S.C. § 1001, that the false statement be made "within the jurisdiction of any department or agency of the United States." The thrust of Hooper's argument is that the stipend rosters, upon which the false signatures were affixed, were internal UW-M documents and not presented directly to and relied upon by HEW. We do not agree.

In United States v. Candella, 487 F.2d 1223 (2d Cir. 1973), Cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974), the Court held that even though affidavits submitted by movers were executed on forms prepared by the City of New York and not by HUD, the affidavits were within the purview of 18 U.S.C. § 1001, where the City had entered into contract with the United States prompting the moving, where the Government was ultimately responsible for paying the moving expenses, and where the movers were aware of that relationship between the Government and the City.

Candella also makes clear that 18 U.S.C. § 1001 "does not require that the false statement must actually have been submitted to a department or agency of the United States, but rather that it was contemplated that the statement was to be utilized in a matter which was within the jurisdiction of such department or agency." Id. at 1227. In Candella, as in the instant case, the City was authorized to make payments, without securing express approval from HUD, although the complete files on such claims were to be kept available by the City for audit and inspection by HUD. This case presents an analogous situation in that one of the purposes of the stipend rosters was to provide an "audit trail" for federal program auditors. See also United States v. Kraude, 467 F.2d 37 (9th Cir.), Cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972); United States v. Waters, 457 F.2d 805 (3d Cir. 1972). In United States v. Munoz, 392 F.Supp. 183 (E.D.Mich.1974), Aff'd, 529 F.2d 526 (6th Cir. 1975), Chief Judge Kaess held that where the United States Department of Labor had authority to regulate the use of funds distributed through a national organization, which was a contractor to the Department of Labor, to a state-chartered non-profit organization which was a subcontractor to the national organization, any false statement submitted to the state-chartered organization was made in a matter within the "jurisdiction of an agency or department of the United States." Munoz, at 186, reaffirms not only the proposition that the fraud need not be perpetrated directly on or to the governmental agency involved, but that the term "jurisdiction" in 18 U.S.C. § 1001 should not be given narrow or technical meaning. See also Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969).

Hooper objects to the instruction given by the Court defining "within the jurisdiction of any department or agency of the United States." The instruction was based on the holding in Ebeling v. United States, 248 F.2d 429 (8th Cir.), Cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261 (1957). Ebeling stands for the proposition that § 1001 does not require false statements or documents to be presented directly to a governmental department so long as such statement or document is used in some intended relationship...