U.S. v. Johnson
| Citation | 937 F.2d 392 |
| Decision Date | 25 June 1991 |
| Docket Number | No. 90-5235,90-5235 |
| Parties | 37 Cont.Cas.Fed. (CCH) 76,193 UNITED STATES of America, Appellee, v. Clayton JOHNSON, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Robert Brunig, Minneapolis, Minn., argued (John S. Foster, Grand Forks, N.D., on brief), for appellant.
Vicki Aldridge, Asst. U.S. Atty., argued (Dennis Fisher, Asst. U.S. Atty., on brief), Fargo, N.D., for appellee.
Before LAY, Chief Judge, FAGG, Circuit Judge, and WRIGHT, * District Judge.
Clayton Johnson appeals his conviction after a jury trial on two counts of making false, fictitious and fraudulent statements to a government agency in violation of 18 U.S.C. Sec. 1001 (1989). 1 On appeal he argues, inter alia, that there was insufficient evidence that the statements were material. We reverse with order to dismiss the judgment of conviction on Count II, and order a new trial on Count I.
Clayton Johnson is a partner in Dakota Woodworks, located in Grand Forks, North Dakota. In 1987, Dakota Woodworks received a subcontract from Orvedahl Construction, Inc. for labor and miscellaneous materials necessary to install previously purchased window units in 1124 window openings in family housing at Grand Forks Air Force Base. The agreement required the Air Force to pay Dakota Woodworks $213,896 on the subcontract.
The Air Force had purchased the window units Dakota Woodworks was to install years earlier and knew that some of them On May 13, 1988, Pat Trudel, an Air Force civil engineer, reinspected the window inventory. According to the Air Force's count, there were approximately 313 unusable windows. (Govt.Ex. 10). In a letter dated May 13, 1988, the Air Force notified Johnson of the new count and requested a bid on the cost and delivery for the "indicated quantities." The letter stated: (Govt.Ex. 11). According to the government's testimony, this information was not intended to tell Dakota Woodworks which particular windows previously determined to be non-usable were now acceptable, leaving that up to Dakota Woodworks installers. (T. 990). The May 13th letter stated: "Using the information provided please provide us with your cost and delivery time for the indicated quantities." On June 15, 1988 Air Force contracting officials met with Johnson and again told him that "for pricing purposes he should use the inventory included in the May 13, 1988 letter" even though the "inventory wasn't a hundred percent accurate." (T. 445). Thus, the Air Force directed Johnson to submit a supplier quote for prices on 313 new window units.
had been damaged from improper handling and storage. Between February 16, 1988 and April 8, 1988, Dakota Woodworks and the Air Force conducted an inventory of the government-owned window units. On April 20, 1988, Johnson wrote the Air Force that the inventory showed that 432 window units were damaged or missing. The windows deemed non-usable were segregated from the usable ones. (T. 912). Johnson stated that his installers had only enough non-damaged windows to work through the end of April. On May 2, 1988, the Air Force contracting officer directed Johnson to provide him with his cost for purchasing additional windows and amount of time extension needed to complete the contract.
On June 15, 1988, Johnson called a window supplier, Poly Products, and requested a price quote on each type and quantity of window unit listed in the May 13th letter carried by Poly Products. After getting a quote for 200 window units from Poly Products' president, Helge Rommesmo, Johnson called back and asked for a quote ten percent higher. Five days later, Johnson told the Air Force he could complete the job for about $160,000, and they told him to put his proposal in writing. On June 29th, Johnson called Rommesmo and told him ten percent was too much and asked for a quote that was only five percent higher than the original quote. Johnson then submitted the inflated Poly Products price quote to the Air Force, showing the quantity of each type of window unit and its price. Govt.Add. at 1. The quantity figures were based on the May 13th letter from the Air Force. Johnson also submitted a quote from a different supplier for the remaining 113 window units, but that quote does not figure directly in the prosecution. The Air Force subsequently informed Johnson that he would need to submit a Certificate of Current Cost or Pricing Data ("Certificate") certifying that the window prices he submitted were "accurate, complete, and current." On July 18, 1988, Johnson signed and submitted the Certificate.
On July 18, 1988, Johnson and the government executed a modification to the existing contract, specifying that the contract price was being changed from an estimated quantities contract for $213,896 to a lump-sum contract for $360,000. 2 The modification indicated that Dakota Woodworks agreed to provide new prime windows necessary to complete the buildings listed in the original contract, and indicated that approximately 313 windows would be required. (Govt.Ex. 25; T. 233-34). The lump-sum modification was intended to cover the purchase of the additional windows plus a standard percentage overhead amount.
Dakota Woodworks cleaned all the government-provided windows and continued installing windows that met contract specifications. The installers took windows Because Johnson had installed many previously rejected window units from the Air Force inventory rather than purchasing the new window units called for in the contract modification, the government withheld approximately $100,000 of the final payment due on the contract. Johnson claimed that the rejected windows from the government inventory became his property under a clause in the contract calling for contractor disposal of unusable materials. The government disputed that interpretation. (T. 241-2). The breach of contract dispute was litigated in a civil proceeding.
from the inventory of windows previously marked unusable if they met the criteria listed in the Air Force's May 13th letter. Johnson left it to his on-site supervisor, James Pender, to determine which windows were usable within the meaning of the May 13th letter. Air Force personnel were at the job site and inspected and approved every window that Dakota Woodworks installed. (T. 544). Air Force inspectors knowingly approved some of the previously rejected windows installed by Dakota Woodworks. (T. 896). All the windows that were installed met the contract criteria and passed independent air filtration tests. (T. 266-67, 384-86). Johnson relied on Pender to tell him when the supply of usable windows was exhausted. (T. 938-39). Johnson did not order any new window units until August 16, 1988. At that time, Johnson called Poly Products and ordered 56 window units for $24,807. These were the only new windows Johnson ordered from Poly Products.
The government indicted Johnson on two counts of making a false statement under 18 U.S.C. Sec. 1001. 3 Count I read as follows:
defendant herein, did knowingly and willfully make and cause to be made false, fictitious and fraudulent statements and representations as to material facts in a matter within the jurisdiction of the United States Air Force, an agency of the United States, in that he submitted a false and inflated price list claiming that 200 windows from Poly Products of Fargo, North Dakota, would cost $101,225.85 whereas in truth and in fact as defendant Clayton Johnson well knew, both the number and the cost of windows was approximately 56 at a cost of approximately $24,807, in violation of [18 U.S.C. Sec.] 1001.
Count II alleged:
defendant herein, did knowingly and willfully make and cause to be made false, fictitious and fraudulent statements and representations as to material facts in a matter within the jurisdiction of the United States Air Force, an agency of the United States, in that he submitted a Certificate of Current Cost or Pricing App. at 2.
Data on behalf of Dakota Woodworks, Clayton Johnson, partner, when in truth and in fact as defendant Clayton Johnson well knew the Certificate was misleading and false since he certified a need for approximately 222 windows that were never purchased; in violation of [18 U.S.C. Sec.] 1001.
Johnson first argues that the indictment was fatally defective because it alleged Johnson made a false statement when the wrongful conduct at issue was actually the making of a false writing. We reject this argument. Although different clauses of section 1001 speak of false statements and false writings, there is not a substantive legal distinction between false oral statements and false writings under section 1001. United States v. Popow, 821 F.2d 483, 487 (8th Cir.1987); see also United States v. Daily, 921 F.2d 994, 1000 (10th Cir.1990). Johnson also argues that the indictment and instructions to the jury stating that he could be convicted for making or "causing to be made" false statements was erroneous because the statute does not prohibit statements one causes to be made. We also reject this argument. The "causing to be made" language is proper charging language in this and other circuits. See, e.g., United States v. Lanier, 578 F.2d 1246, 1250 (8th Cir.), cert. denied, 439 U.S. 856, 99 S.Ct. 169, 58 L.Ed.2d 163 (1978); United States v. Kirby, 587 F.2d 876, 878 (7th Cir.1978).
Johnson contends that the government failed to prove all the elements necessary to sustain a conviction under 18 U.S.C. Sec. 1001. To prove a violation of the "false statement" portion of section 1001, the...
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