U.S. v. Lawson

• Decision Date: 13 February 1987
• Docket Number: No. 86-3020,86-3020
• Citation: 809 F.2d 1514
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Levis E. LAWSON, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1514

809 F.2d 1514

UNITED STATES of America, Plaintiff-Appellee, v. Levis E. LAWSON, Sr., Defendant-Appellant.

No. 86-3020.

United States Court of Appeals, Eleventh Circuit.

Feb. 13, 1987.

Rehearing and Rehearing En Banc Denied March 19, 1987.

Aaron K. Bowden, Jacksonville, Fla., for defendant-appellant.

Ernst D. Mueller, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and JOHNSON, Circuit Judges, and HOFFMAN, ^* Senior District Judge.

WALTER E. HOFFMAN, Senior District Judge:

Background

Levis E. Lawson, Sr., appeals from a judgment of conviction on a charge of willfully using false writings and documents containing materially false statements in a matter within the jurisdiction of the U.S. Department of Housing and Urban Redevelopment. Lawson's conviction was for a violation of 18 U.S.C. Sec. 1001. We affirm the judgment of the district court.

Procedural History

On June 13, 1985, a grand jury returned the original two-count indictment against Lawson, charging him with making materially false statements for the purpose of influencing the action of the United States Department of Housing and Urban Development, in violation of 18 U.S.C. Sec. 1010 and with publishing false construction invoices in violation of 18 U.S.C. Sec. 495. In response to a summons, Lawson appeared and pled not guilty. He was released on bond on June 24, 1985. Lawson's July 22, 1985, motion to dismiss the indictment was denied on August 12, 1985. Despite the court's denial of Lawson's motion to dismiss the first indictment, on August 14, 1985, the grand jury returned a superseding indictment which charged Lawson with a single count, violation of 18 U.S.C. Sec. 1001.

Upon Lawson's request and the government's consent, the case was tried without a jury on October 9 and 10, 1985. At the close of trial, the court made partial findings of fact. Both parties then submitted memoranda on the issues of jurisdiction and materiality. On November 18, 1985, the trial court issued an order and opinion finding Lawson guilty as charged in the superseding indictment. On January 3, 1986, the court sentenced Lawson to five years, and on the condition that Lawson be confined in a jail-type or treatment institution for six months and to probation for four and one-half years, to commence upon Lawson's release from confinement. The court also imposed a fine of $10,000, payable within sixty days after release from confinement. From this judgment of conviction, Lawson appeals and remains at liberty pending resolution of the appeal.

Facts

The Housing Authority of the City of Live Oak, Florida (Housing Authority) and Lawson Construction Company, Inc. (Lawson Construction) entered into a lease effective June 1, 1971. Under the terms of the lease, Housing Authority acquired for five years from Lawson Construction fifty housing units at Goldburg Circle and Lawson Heights in Live Oak, Florida. The lessee renewed for one five-year term; however, on September 10, 1980, Lawson Construction cancelled the lease effective June 1, 1981.

The Secretary of the United States Housing and Urban Development (U.S. HUD) approved the lease; however, the United States was not a contracting party. The lease provided that the Housing Authority would return the leased units to Lawson Construction in their original condition, less normal wear and tear. The Housing Authority sublet the units to low-income families, in fulfillment of the purpose of the lease and pursuant to Florida law. The funds for operating the housing projects came from rent money generated by this subletting and from U.S. HUD funds. The annual contributions contract between U.S. HUD and Housing Authority provided that nothing in the contract should be construed as creating or justifying any claim against the United States by any third party.

The annual contributions contract remained in effect in May 1982 when Housing Authority filed a complaint against Lawson Construction for a declaratory judgment in the Circuit Court, Third Judicial Circuit of Florida, Suwannee County. The Housing Authority of the City of Live Oak, Florida v. Lawson Construction Company, No. 82-157-CA. In this action, Lawson Construction counterclaimed for damages for the restoration of the units to their original condition, minus ordinary wear and tear. Housing Authority notified U.S. HUD of the lawsuit, but U.S. HUD was not a party. U.S. HUD funds paid The issues in the case sub judice focus upon the May 11, 1984, discovery deposition of Lawson in preparation for trial of the Third Judicial Circuit case. During this deposition Housing Authority's attorney asked Lawson if he had the documents which reflected expenditures for repairs of the apartments. Under oath, Lawson produced numerous documents which he alleged were reflective of the relevant expenditures. Beyond submitting these documents to Housing Authority's attorney during his deposition, Lawson apparently did not further represent to Housing Authority that the papers documented restoration expenses. Housing Authority neither submitted Lawson's documentation to U.S. HUD nor requested a payment to Lawson Construction based upon this documentation.

Housing Authority's legal expenses with the exception that Housing Authority paid the fee of its private attorney. Under the terms of the contract, U.S. HUD would also pay any judgment entered against Housing Authority. Because the case is still pending, U.S. HUD has expended no money to date in this action.

Three days prior to Lawson's deposition, Lawson approached Clarence Nettles with the request that Nettles sign several false invoices relating to work at the Live Oak housing project previously leased by Lawson to Housing Authority. Nettles is Lawson's in-law and some-time employee. Promising to return the following morning, Lawson left Nettles's home, at which time Nettles attempted to contact an FBI agent whom he had met when he was a defense witness in a previous criminal trial. Before the agent returned Nettles's call on May 9, 1984, Lawson again contacted Nettles. The five invoices totaling $14,780.00, which Nettles completed at Lawson's urging, clearly exceeded the $500.00 which Nettles had been paid for work actually completed. Lawson instructed Nettles, if subpoenaed, to say that he and his wife, Randy, had done the work for the $14,780.00 but that they had not yet been paid.

At the deposition on May 11, 1984, Lawson presented not only the invoices which Nettles prepared but also numerous other false invoices from James Lawson, Dwayne Lawson, Levis Lawson, Jr., Mike Eagan, and Thomas Fields. A total close to $100,000 was reflected on the faces of these invoices. The trial court found that all of these documents were false and fraudulent.

Standard of Review

All factual findings of the trial court must be upheld unless this court finds that the factual findings were clearly erroneous. United States v. Cruz, 581 F.2d 535, 540-41 (5th Cir.1978) (en banc). The primary issue of this action, whether the defendant's criminal conduct was properly prosecutable under 18 U.S.C. Sec. 1001, is a question of law subject to de novo review by this court. United States v. Plascencia-Orozco, 768 F.2d 1074, 1076 (9th Cir.1985).

DISCUSSION

To make any false or fraudulent statement in any matter within the jurisdiction of a federal agency is a federal crime under 18 U.S.C. Sec. 1001. ¹ Proof of five elements is essential to sustain a conviction pursuant to this statute: (1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5) agency jurisdiction. United States v. Lange, 528 F.2d 1280, 1287 (5th Cir.1976); United States v. Lichenstein, 610 F.2d 1272 (5th Cir.), cert. denied sub nom. Bella v. United States, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980). Only jurisdiction and materiality are issues in the present case.

Jurisdiction

Lawson alleges that statements made under oath in a state judicial proceeding, in which he contends the United States was not a party, are not within the jurisdiction of 18 U.S.C. Sec. 1001. Lawson further alleges that at the time of his deposition the matter was not within the jurisdiction of any department or agency.

The United States refutes Lawson's contention that the United States was not a party to the state court proceeding. Evidence presented to the trial court clearly established the existence of an annual contributions contract between U.S. HUD and the Housing Authority of Live Oak; Housing Authority was the contractual agent of U.S. HUD. The federal agency was authorized to and had agreed to pay any damages arising out of the declaratory judgment action in state court. Trial court testimony showed that any settlement figure would have been specifically authorized and approved by U.S. HUD before it was agreed to by Housing Authority. Consequently, although Housing Authority was the named party in the litigation, Housing Authority was in reality an agent for U.S. HUD. Since U.S. HUD is clearly an agency of the federal government and since U.S. HUD was actively concerned with the outcome of the litigation, jurisdiction lies, pursuant to 18 U.S.C. Sec. 1001. Lawson's production of false documents during his state court deposition is also a false statement to the United States.

An excellent discussion of "jurisdiction" as used in 18 U.S.C. Sec. 1001 is found in United States v. Rodgers, 466 U.S. 475, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984). In Rodgers the Court wrote, "The most natural, nontechnical reading of the statutory language is that it covers all matters confided to the authority of an agency or department." Id. at 479, 104 S.Ct. at 1946. The Court concluded that a department or agency has jurisdiction when it has the power to exercise authority in a particular situation. Quoting United States v. Adler, 380 F.2d 917, 922 (2d Cir.), cert. denied, 389 U.S. 1006, 88...