U.S. v. Lanier
| Citation | 920 F.2d 887 |
| Decision Date | 10 January 1991 |
| Docket Number | No. 89-8836,89-8836 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terry LANIER, Samuel Stevens, Carl Jamerson, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
G. Terry Jackson, Savannah, Ga., for T. Lanier.
Orion L. Douglass, Brunswick, Ga., for S. Stevens.
Harvey Weitz, Weiner, Ginsberg, Shearouse & Weitz, Savannah, Ga., for C. Jamerson.
Arthur W. Leach, Asst. U.S. Atty., Savannah, Ga., Merve Hamberg, Joseph Douglas Wilson, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before EDMONDSON and COX, Circuit Judges, and WISDOM *, Senior Circuit Judge.
A jury convicted Stevens Oil Company ("Stevens Oil"), two of its officers, Samuel Stevens and Terry Lanier, and Carl Jamerson, a government employee, for their respective parts in a scheme that defrauded the federal government of millions of dollars over a three year period beginning in 1982. Defendants, Stevens, Lanier, and Jamerson, appeal their convictions. They raise ten points of error that they argue require reversal of various aspects of their respective convictions.
We have reviewed all of the points raised by the defendants, and find none of them warrants reversal. We affirm their convictions.
In 1981, the Small Business Administration ("SBA"), under the authority of section 8(a) of the Small Business Act, 1 subcontracted to Stevens Oil the task of supplying fuel oil to the Defense Fuel Supply Center ("DFSC"). 2 The subcontract required Stevens Oil to deliver fuel oil to various military installations in the area of Savannah, Georgia, including Fort Stewart and Hunter Army Air Field. 3 The subcontract lasted one year and was renewed by the parties for three additional one year terms beginning in 1982.
In November 1984, spot checks by the government revealed that Stevens Oil had charged the government for two large fuel deliveries that had never been made. 4 Further investigation revealed substantial evidence of a conspiracy among officials at Stevens Oil, including defendant Stevens, the president of Stevens Oil, and defendant Lanier, the office manager, and certain government officials, including defendant Jamerson, 5 to bill the government for fuel oil that was never actually delivered.
Based on this evidence, the government indicted the defendants alleging that defendants conspired to steal government property and to defraud the United States, in violation of 18 U.S.C. Sec. 371; that they conspired to defraud the United States by obtaining payment of false claims, in violation of 18 U.S.C. Sec. 286; that they stole government property, in violation of 18 U.S.C. Sec. 641; and that they presented a false claim to a government agency, in violation of 18 U.S.C. Sec. 287. In addition, the indictment alleged that Stevens Oil, Stevens, and Lanier had bribed a government official, in violation of 18 U.S.C. Sec. 201(b)(1)(B) and that Jamerson had accepted a bribe, in violation of 18 U.S.C. Sec. 201(b)(2)(B).
At trial, numerous witnesses testified to the roles of defendants Stevens, Lanier, and Jamerson in the conspiracy, to the payment of bribes to both Jamerson and Charles Riggs, 6 and to numerous specific incidences of bills submitted to the DFSC for fuel oil that was never delivered. 7 Because the defendants do not question the sufficiency of the evidence relating to their convictions for the submission of false bills, we shall not detail the evidence relating to the false billing conspiracy.
In addition to the conspiracy to submit and the actual submission of false claims, during the 1984 subcontract (which ran from April 1, 1984 to March 31, 1985), the SBA made advance payments under 13 C.F.R. Sec. 124.401 8 of $3 million to Stevens Oil. 9 Stevens Oil has failed to repay $1.8 million of this advance. 10 Because defendants Lanier and Stevens question the sufficiency of the evidence to support their convictions under 18 U.S.C. Sec. 641 for embezzling these funds, it is necessary to detail the evidence relating to the advance payment.
The advance payment was essentially an interest free loan made to the subcontractor, Stevens Oil, by the general contractor, the SBA, to provide the capital necessary for Stevens Oil to fulfill its duties under the section 8(a) subcontract. 11
Stevens Oil could use the advance only:
for the purchase of materials, payment of labor, payment for equipment expenses, general and administrative expenses and overhead, and payments to the subcontractors of the 8(a) concern necessary for the performance of the specific 8(a) subcontract for which the advance payments were authorized. 12
The SBA placed the money in a special bank account at Carver State Bank ("the joint account"). Use or withdrawal of the funds by Stevens Oil required the countersignature of an SBA official. 13 The SBA would approve the withdrawal or use of the funds only after Stevens Oil submitted a check request and supporting documents, such as supplier invoices, tying the expenses to the 1984 subcontract. 14 After review and approval of the expenses by the SBA, the checks would be issued.
The contract between the SBA and Stevens Oil required Stevens Oil to notify the DFSC that all payments under the 1984 subcontract were to be sent directly to the joint account. 15 Once in the joint account, the funds would be under the supervision of the SBA and could be used only to pay Stevens Oil's expenses under the 1984 subcontract (and to repay the advance). 16
However, on its invoices to the DFSC, Stevens Oil indicated that the DFSC should pay Stevens Oil directly, and made no mention of the joint account. 17 As a result of the invoices, the DFSC paid Stevens Oil directly. 18
When Stevens Oil received the first payments from the DFSC, Stevens directed Lanier not to deposit the check directly into the joint account. 19 Rather, Stevens told Lanier to wait and see if the SBA noticed the error. 20 When the SBA failed to notice the error, Stevens Oil deposited the checks into other accounts, 21 and then used the funds to pay off expenses unrelated to the section 8(a) subcontract. 22
To conceal the fact that the DFSC payments were not being made directly into the joint account, Stevens Oil wrote checks, from time to time, on these other accounts and deposited the checks into the joint account. 23 Stevens Oil then provided supporting paperwork to the SBA suggesting that the checks represented the full payments received from the DFSC under the subcontract. 24
Over the course of the 1984 subcontract, the DFSC paid Stevens Oil $8.4 million for fuel oil deliveries. 25 Yet, Stevens Oil represented to the SBA that Stevens Oil had invoiced the DFSC for only $7.2 million in deliveries. 26 Furthermore, Stevens Oil deposited only $5.2 million into the joint account, and represented to the SBA that the DFSC had not paid the remainder of the invoiced amounts. 27
Thus, over the course of the 1984 subcontract, Stevens Oil misdirected $3.2 million of the proceeds from the 1984 subcontract and used a large part of these funds to pay off debts and expenses unrelated to the subcontract. 28 As a result, Stevens Oil was unable to repay $1.8 million of the money advanced to it by the SBA.
For their respective parts in the false billing scheme, the jury convicted Stevens, Lanier, and Jamerson of one count of conspiracy to steal government property and to defraud the United States, in violation of 18 U.S.C. Sec. 371; one count of conspiracy to defraud the United States by obtaining payment of false claims, in violation of 18 U.S.C. Sec. 286; two counts of theft of government property, in violation of 18 U.S.C. Sec. 641; and two counts of presenting a false claim to a government agency, in violation of 18 U.S.C. Sec. 287. The jury convicted Stevens and Lanier on an additional count of theft of government property relating to the $1.8 million of the advance payment that was not repaid, and on two counts of bribing a public official to commit a fraud, in violation of 18 U.S.C. Sec. 201(b)(1)(B). The jury convicted Jamerson on one count of accepting an illegal gratuity in return for committing a fraud against the government, in violation of 18 U.S.C. Sec. 201(b)(2)(B).
The trial judge entered judgment on the jury's verdict and sentenced defendant Stevens to an aggregate term of ten years in prison, 29 defendant Lanier to an aggregate term of seven years in prison, 30 and defendant Jamerson to an aggregate term of 15 years in prison. 31 The trial judge also fined defendant Stevens $500,000, 32 and defendant Jamerson $100,000. 33
The defendants have raised numerous points on appeal, but we find that only two of them merit discussion: (1) whether the Double Jeopardy Clause permits, and Congress intended to permit, the conviction and sentencing of defendants for violations of both the general conspiracy statute, 18 U.S.C. Sec. 371, and a specific conspiracy statute, 18 U.S.C. Sec. 286, when the evidence established only one conspiracy, and (2) whether the evidence presented is sufficient to sustain the jury's finding that defendants Lanier and Stevens embezzled $1.8 million of the advance payment that Stevens Oil has failed to repay.
The defendants argue that the trial judge improperly submitted two conspiracy counts to the jury when the evidence established only one agreement with multiple purposes. They contend, citing United States v. Mori 34 and United States v. Corral, 35 that participants in a single conspiracy cannot be convicted under both the general conspiracy statute and a specific conspiracy statute.
Indeed, in both Mori and Corral, the Fifth Circuit held that participants in a single conspiracy could not be convicted under both a specific...
To continue reading
Request your trial
-
U.S. v. Harris, s. 89-3205
...two specific conspiracies as in Albernaz, but such distinctions have no significance for multiplicity analysis. See United States v. Lanier, 920 F.2d 887, 892-95 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 208, 116 L.Ed.2d 166 (1991). The Supreme Court explicitly stated that if proo......
-
U.S. v. Johnson
...punished under both 21 U.S.C. § 846 and 18 U.S.C. § 371 even though objects of the conspiracy overlapped); see also United States v. Lanier, 920 F.2d 887, 891-95 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 208, 116 L.Ed.2d 166 (1991); United States v. Cuevas, 847 F.2d 1417, 1429-30 ......
-
United States v. Gonzalez
...for different maximum punishments—five years for a § 371 conspiracy and 10 years for a § 1347 conspiracy. See United States v. Lanier, 920 F.2d 887, 892 (11th Cir. 1991) (considering differences in maximum punishment and statutory language under each conspiracy statute in assessing congress......
-
U.S. v. Milton, s. 91-3238
...States v. Wheadon, 794 F.2d 1277 (7th Cir.1986), cert. denied, 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161 (1987); United States v. Lanier, 920 F.2d 887 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 208, 116 L.Ed.2d 166 (1991). The test applies when the government has furnished fund......
-
Tax Violations
...v. Burke, 633 F.3d 984, 989 (10th Cir. 2011); United States v. Austin, 774 F.2d 99 (5th Cir. 1985). 370. See United States v. Lanier, 920 F.2d 887, 892 (11th Cir. 1991). 371. 18 U.S.C. § 286. 1364 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:1321 2. 18 U.S.C. § 287: False, Fictitious, or Fraudulen......