U.S. v. Lasater
| Decision Date | 17 May 1976 |
| Docket Number | No. 75-1935,75-1935 |
| Citation | 535 F.2d 1041 |
| Parties | UNITED STATES of America, Appellant, v. Donald E. LASATER, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellant; Bert C. Hurn, U. S. Atty., Kansas City, Mo., on the briefs.
Norman S. London, St. Louis, Mo., for appellee; Lawrence J. Fleming, St. Louis, Mo., on the briefs.
Before ROSS, STEPHENSON and HENLEY, Circuit Judges.
The United States appeals from the district court's entry of a "judgment of acquittal" in favor of Donald Lasater. Lasater is charged with four counts of perjury before a grand jury, in violation of 18 U.S.C. § 1623.
We hold that the district court was correct in finding that the testimony in question was not material to the grand jury investigation. Treating the district court's order as a dismissal of the indictment, we affirm the dismissal. 1
In early 1975, a federal grand jury in the Western District of Missouri was investigating the affairs of former Missouri Governor Warren E. Hearnes. Among the subjects of its inquiry were possible criminal tax violations. The grand jury was interested in a bank account maintained in the Farmers Bank of Portageville, Missouri, in the name of the "Bootheel Committee for Hearnes." The account had been opened in October 1968 by J. V. Conran, a vice-president of the Farmers Bank and a leader in the politics of southeast Missouri.
The grand jury had before it evidence that Conran had made two deposits into the Bootheel account, and that both deposits were the proceeds of bond transactions with Mercantile Trust Co. of St. Louis. Appellee Lasater was, at the time of the transaction, president of Mercantile. 2
The bond transactions worked in this way: Conran would purchase municipal bonds in the open market, borrowing the bulk of the purchase price from Mercantile and the remainder from other sources. He would hold the bonds for six months, and then sell them to Mercantile. The sale price would be in excess of his purchase price (and also in excess of market), so that Conran would have a substantial profit.
Conran deposited these profits in the Bootheel account. There were two series of transactions, one in 1968 and one in 1969. Conran's two deposits in the account totaled $63,900.60.
In 1973, Hearnes received a check from the Bootheel Committee in the amount of $58,874.80. This amount was included in his gross income for that year.
The federal prosecutors conducting the investigation, assisted by agents of the Internal Revenue Service, decided to investigate the possibility that Mercantile's transfer of funds to Conran was the result of an understanding between Mercantile and Hearnes, whereby Hearnes would confer some benefit on Mercantile (presumably, the deposit of state controlled funds). In exchange, Mercantile would transfer funds to Conran for Hearnes' use. It was the prosecutors' theory that if this were so, the deposits in the Bootheel account should have been included in Hearnes' gross income in 1968 and 1969 rather than in 1973 when they were reported.
In the course of its investigation, the grand jury discovered a letter, dated June 5, 1968, addressed to Conran, and signed by Lasater and Kenton Cravens. In the letter, Lasater indicated that he enclosed a note for Conran's signature for $165,000. He expressed appreciation for the amount of business Conran had directed to Mercantile. He then wrote:
Mr. Cravens and myself are jointly signing this letter and binding ourselves to you and/or your estate to purchase not later than six months from this date $25,000 in face amount of State of New York bonds maturing in 1988 and $200,000 of Milwaukee, Wisconsin bonds maturing in 1978 at a price not less than par.
At the time of the guarantee these bonds were selling at prices considerably below their par value. The bonds named were among those later purchased by Mercantile from Conran at a price in excess of market value, but below par value. The second transaction followed the same pattern.
On February 5, 1975, Lasater was called to testify before the grand jury to explain his role in these transactions. Prior to his testimony, an Internal Revenue Service agent, Edwin Reising, prepared a list of questions to be asked by the government attorneys conducting the grand jury proceedings. Certain questions from this list were used in the questioning. However, none of the questions on the list were among those which formed the basis for this perjury indictment.
Lasater was examined before the grand jury by three experienced prosecutors: Bert Hurn (U. S. Attorney for the Western District of Missouri), and two of his assistants. The government counsel on this appeal was not present. The grand jury later returned a four count indictment, charging that certain of Lasater's testimony was perjured. The testimony involved was as follows:
In Count I of the indictment:
Q. Of course, the letter that you have read, Grand Jury Exhibit 19 (the June 5 guarantee letter), who wrote that letter?
A. Well, I didn't write the letter but it is written as if I did but I signed the letter.
Q. Do you know who dictated this letter for your signature, of June 5, 1968?
A. I assume Mr. Cravens did. I don't really know. He had the letter prepared for me.
(The indictment charges falsity in that Lasater knew "that he did write the letter and did dictate said letter to his secretary.")
In Count II:
Q. Did the bank participate in the purchase of those bonds?
A. Not that I am aware of.
Q. If the bank had participated in the repurchase of those bonds, is it likely you would be unaware of it?
A. Yeah, I would think so. I really don't know. I didn't arrange for the purchase of bonds or the sale of bonds.
(Falsity is charged in that Mercantile participated in the purchase and repurchase of the bonds, Lasater was aware of this, and he himself participated in their purchase and sale.)
In Count III:
Q. Assuming they paid a higher price than the market value at the time for those securities, how would that transaction be reflected on the books and records of your bank?
A. I have no idea. I assume they paid market price for them. I really don't know.
(This is allegedly false in that Mercantile had paid "substantially in excess of market price" for the securities, and Lasater was aware of this.)
In Count IV:
Q. And what occasioned your meeting? 3
A. I met him in Sikeston, Missouri, to in a sense explain to him that he had an alternative of paying off a loan or selling the bonds, whichever he chose to do.
(This is alleged to be false in that Lasater, in behalf of Mercantile, had directed and prearranged the disposition of the bonds, and had made the decision as to their disposition.)
Before proceeding, we note other portions of Lasater's grand jury testimony which are important to this appeal.
First, although Lasater denied authorship of the June 5 letter, he admitted signing it and testified at some length to the purposes behind it. Particularly, in response to the question, "Did you have anything to do with the setting up of the par value agreement?" Lasater said, Lasater discussed the details of the loan guarantee. He later stated that the purpose of the guarantee was to influence the Democratic administration so that Mercantile "would maybe not stand to lose as many state funds" on deposit at the bank. He testified that Cravens had signed a letter agreeing to indemnify him for any losses on the guarantee. He later destroyed his copies of both letters because
Second, although in the testimony which is the subject of Count II Lasater denied knowledge that Mercantile had purchased the bonds, he later stated that, if the records of Conran's broker showed that Mercantile had purchased the bonds, those records would undoubtedly be correct.
Finally, in the testimony which led to Count IV, Lasater had given a brief explanation of a meeting he had with Conran in Sikeston, Missouri, in late 1968. He later testified more fully:
The indictment was returned on February 27, 1975. It recited the allegedly false testimony set out above, and stated that each statement was made "with respect to" the question whether these payments were taxable income to Hearnes in 1968 and 1969, a question which was "material to the grand jury investigation."
A pretrial conference was held. The court and parties agreed that a hearing would be held, pursuant to then Fed.R.Crim.P. 12(b)(4), 4 at which all evidence on the issue of the materiality of these statements to the grand jury investigation would be adduced. It was agreed that the existence of materiality, an essential element of the offense, was a question for the court. The district judge decided, with the parties' consent, that he would make a final decision on the issue of materiality after this hearing. The hearing on materiality was in fact seen as the first half of a "bifurcated trial." At the second half, a jury would determine the issues of falsity and knowledge.
The materiality hearing was held on August 18 and 19. Considerable documentary evidence was received. IRS Agent Reising and Assistant U.S. Attorney White testified. Both stated that a purpose of calling Lasater before the grand jury was to determine whether any...
To continue reading
Request your trial
-
US v. Taylor
...v. Phillips, 540 F.2d 319, 328 (8th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976); United States v. Lasater, 535 F.2d 1041, 1047-48 (8th Cir.1976); and United States v. Koonce, 485 F.2d 374, 380 (8th 31 While it might be possible to make a rather circuitous argumen......
- State v. Fluhr
-
Thompson v. Crawford, 84-428
...of this case. "This was to be a jury-tried case, and jeopardy could not attach until the jury was empaneled." United States v. Lasater, 535 F.2d 1041, 1047 (8th Cir.1976) (footnote omitted)(emphasis original). See also Collins v. State, 672 S.W.2d 588 (Tex.Ct.App.1984) (where a valid and ef......
-
U.S. v. Bailey
...from sworn witnesses, but there was no risk of a determination of guilt. We addressed a similar situation in United States v. Lasater, 535 F.2d 1041 (8th Cir.1976). Lasater was charged with violating 18 U.S.C. Sec. 1623, id. at 1043, and the district court held a pretrial hearing on the iss......