U.S. v. Jackson, 82-2547

• Decision Date: 16 September 1983
• Docket Number: No. 82-2547,82-2547
• Citation: 714 F.2d 809
• Parties: 13 Fed. R. Evid. Serv. 1915 UNITED STATES of America, Appellee, v. Gaylon William JACKSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 809

714 F.2d 809

13 Fed. R. Evid. Serv. 1915

UNITED STATES of America, Appellee, v. Gaylon William JACKSON, Appellant.

No. 82-2547.

United States Court of Appeals,

Eighth Circuit.

Submitted June 17, 1983.

Decided Aug. 16, 1983.

Rehearing Denied Sept. 16, 1983.

Phillip A. Glades, David Robards, Joplin, Mo., for appellant.

Robert G. Ulrich, U.S. Atty., Mark J. Zimmermann, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Gaylon William Jackson appeals from a final judgment entered in the District Court ¹ for the Western District of Missouri upon a jury verdict finding him guilty of making or causing to be made false statements in invoices submitted in connection with a federally funded project, 18 U.S.C. §§ 1001, 2 (1976). For reversal appellant alleges prejudicial pre-indictment delay, insufficient evidence, admission of "bad acts" evidence, and erroneous jury instructions. For the reasons discussed below, we affirm.

Appellant owned and operated Southwest Engineering Company (Southwest). Appellant, however, is not an engineer. In 1978 the City of Neosho, Missouri (the City), contracted with Southwest to provide engineering services for improvements to its storm and drainage system (the project). The project was financed by the Department of Housing and Urban Development (HUD). The City required Southwest to submit invoices detailing the hours, costs, and services performed in connection with the project. Southwest submitted invoices that covered two-week pay periods. The invoices were prepared from "recap summaries" which were taken from time sheets completed by Southwest employees. In June 1982, Jackson was charged in a ten-count indictment of making or causing to be made false statements on ten invoices covering time periods from February 1, 1979 to July 31, 1979. Except for the dates involved, ² each count of the indictment was identical and charged that appellant billed for inflated hours of the engineer and for nonexistent hours of the engineer-in-training. An engineer is a college graduate with a degree in engineering who has served an apprenticeship and has passed qualifying examinations. An engineer-in-training is a college graduate in engineering who works for a period of time under the supervision of an engineer. During the period covered in the indictment, Southwest billed for 307 hours of services of an engineer and 465 hours of services of an engineer-in-training.

Appellant first argues that the delay in the government's bringing the June 1982 indictment covering acts occurring in 1979 was prejudicial. "Dismissal of the indictment may be required if the defendant shows at trial that pre-indictment delay caused substantial prejudice to his right to a fair trial and that the delay was an intentional device used by the government to gain a tactical advantage over the accused." United States v. Matlock, 558 F.2d 1328, 1330 (8th Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 218, 54 L.Ed.2d 152 (1977). After a hearing on appellant's motion to dismiss, the trial court found that appellant did not demonstrate that the government intended to delay to gain a tactical advantage or that appellant was prejudiced by the delay. We agree. After HUD referred the case to the FBI in October 1979, the FBI promptly began its investigation and did not complete the investigation until May 1982. "Investigative delay is fundamentally unlike delay undertaken by the government to gain tactical advantage over the defendant, and due process does not require a dismissal for pre-indictment investigative delay." Id. Furthermore, the only specific prejudice appellant alleged was that a potential defense witness moved out of the country. However, as the trial court noted, the witness moved in October 1979, at the very beginning of the FBI investigation and before the government could have reasonably been expected to indict appellant. We also note the trial court offered appellant the opportunity to continue the trial if he needed more time to prepare.

At trial Priscilla Eberle testified as a government witness. Ms. Eberle testified that from April 1977 until April 1979 she worked as appellant's secretary at Southwest and was familiar with his handwriting. She testified that appellant would draft the project invoices in long hand and bring the invoices to her for final typing. According to Ms. Eberle, appellant instructed her to sign the name of James Lofton on each invoice. Ms. Eberle testified that the company was small, that she was familiar with all the employees, and that during the time she was at Southwest, James Lofton was the only employee who was an engineer of whom she was aware.

James Lofton testified that he was a licensed engineer and had worked full-time as an engineer at Southwest until December 1978, when he resigned to take a full-time position as a city manager. Lofton, however, testified that he had agreed to work part-time as an engineer for Southwest until appellant could hire a full-time engineer. Lofton stated that despite his repeated requests that appellant hire a full-time engineer, appellant refused, stating that Lofton's part-time work and the services of an outside consulting engineer, Lynn Calton, were sufficient.

As noted earlier, during the period of time covered by the indictment, Southwest billed for 307 hours of services performed by an engineer. According to Lofton's earnings statement from Southwest for 1979, he earned approximately $1,500, which accounted for 150 hours. Lofton testified, however, that only a "few" of the 150 hours were attributable to his work on the project. Lofton also testified that he made a "side deal" with appellant to work additional hours. Lofton estimated he worked approximately 180 additional hours, but stated that he had never documented the hours, reported the hours, or had been compensated for the hours. At trial when shown completed time sheets bearing his signature for the periods of February 16 through February 30, 1979, and March 16 through March 31, 1979, Lofton stated he had not prepared the time sheets nor had he signed them.

In addition, Lofton related that at about 10 p.m. on October 29, 1979, appellant telephoned him and requested that he come to Southwest's office. Appellant informed Lofton that the City Council had questioned some of the invoices and that the employee time sheets did not support the invoices. When Lofton arrived at the office, appellant and Southwest's accountant were present and had with them invoices, time sheets and "recap summaries." Appellant instructed Lofton to alter his time sheets to increase his number of hours worked on the project by adding his "side deal" hours and hours worked on other projects. Appellant offered Lofton $1,000. Lofton declined the money but altered his time sheets in accordance with appellant's instructions. Lofton also testified that he observed appellant tear up and discard the original time sheets.

Lynn Calton testified that he was hired by appellant as an outside consulting engineer to perform certain engineering work on the project. Calton, however, stated that it was not until October 20, 1979, that he first informed appellant of the hours spent on the project. On October 20, Calton billed Southwest for 70 hours of engineering services and on December 4 billed for 16 additional hours.

Former employees, including Eberle and Lofton, testified that Peter Johnson was the only engineer-in-training at Southwest...