U.S. v. May, 79-1790

• Citation: 625 F.2d 186
• Decision Date: 25 June 1980
• Docket Number: No. 79-1790,79-1790
• Parties: UNITED STATES of America, Appellee, v. Joseph Gale MAY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 186

625 F.2d 186

UNITED STATES of America, Appellee, v. Joseph Gale MAY, Appellant.

No. 79-1790.

United States Court of Appeals,

Eighth Circuit.

Submitted April 16, 1980.

Decided May 30, 1980.

Rehearing and Rehearing En Banc Denied June 25, 1980.

Robert E. Dreher, Dreher, Wilson, Adams, Jensen (on brief), Sayre & Gribble, Des Moines, Iowa, for appellant; Rosenberg & Margulies, Des Moines, Iowa, on brief.

Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, for appellee.

Before HEANEY and ARNOLD, Circuit Judges, and WRIGHT, ^* District Judge.

HEANEY, Circuit Judge.

Joseph Gale May, former Adjutant General of the Iowa National Guard, appeals from his conviction on fifteen counts of an eighteen-count indictment. ¹ We hold that the trial court erred in not instructing the jury that May could only be convicted for using military aircraft for his personal use if the jury found that his use seriously violated the government's right to control the use of the aircraft. We thus reverse May's conviction on the eleven counts dealing with the unauthorized use of military aircraft. May was properly convicted, however, on each of four other counts.

The allegations of the indictment against General May fall into two groups: (1) that he directed a series of unauthorized flights, using National Guard aircraft, fuel and personnel, that served his own convenience rather than that of the National Guard (Counts 1-12); and (2) that he made false statements and claims about these flights and tried to conceal records of them (Counts 12-18). The evidence showed that General May, who was a passenger on the questioned flights, had a nonbusiness purpose in arranging them. On all but one occasion, May directed the flights to destinations allowing him to visit his fiance, Ms. Gwen Applequist. Seven of the flights for which General May was convicted delivered him to and/or returned him from airfields in Florida, the former home state of Ms. Applequist; one flight was made to visit her in New Orleans; two others enabled May to be with her when she attended a conference in Chicago; and a final flight enabled May to spend Thanksgiving weekend with other friends in Las Vegas, Nevada. As a result of these flights, General May was charged with embezzlement and conversion of government property in violation of 18 U.S.C. § 641.

The other counts of which May was convicted alleged that he made false statements in violation of 18 U.S.C. § 1001, attempted to cause records to be concealed in violation of 18 U.S.C. § 2071, and submitted a false claim for payment in violation of 18 U.S.C. § 287.

May was fined $5,000 and given fifteen concurrent one-year sentences. He was to be released as if on parole after service of one-third of the sentence term.

I. THE FLIGHT COUNTS

May's threshold contention is that the conduct alleged in the flight counts is not punishable as a crime. He argues that 31 U.S.C. § 638a(c)(2) provides an administrative remedy for the willful misuse by government personnel of any government-owned motor vehicles or aircraft and, therefore, precludes the application of a criminal statute to the same conduct. He further suggests that the failure of the revisors and codifiers of Title 18 to include the conduct specifically addressed in section 638a(c)(2) reflects a legislative determination that this conduct is not a crime.

We find this argument unpersuasive. First, section 638a provides an administrative remedy against officers and employees of the federal government. Because General May was an employee of the State of Iowa with limited responsibilities of a federal nature, section 638a arguably does not apply to him and, thus, there is no overlap of administrative and criminal sanctions. Second, May's argument concerning the legislative history of section 641 misses the mark. The task of the revisors and codifiers of Title 18 was to collect, coordinate and simplify existing criminal laws. They were not charged with evaluating existing administrative sanctions to see if they should be elevated to criminal status or with reconciling overlapping administrative and criminal remedies. See generally Legislative History (of Title 18), reprinted in U.S.C.A. (1969) following Title 18.

May also contends that his conviction on the flight counts must fall because both the indictment and the jury instructions failed to mention specific intent. There is no doubt that specific intent is a required element of an offense under section 641. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). May's suggestions, however, that specific intent was neither charged in the indictment nor submitted to the jury are in error.

Each of the flight counts alleged that May "did willfully and knowingly embezzle and convert to his own use property and other things of value of the United States * * *." (Emphasis added.) May argues that the indictment should have contained the additional allegation that he acted "unlawfully," citing Morissette and United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973), for support. In Morissette, the Supreme Court discussed with approval an indictment which charged the defendant with "unlawfully, willfully and knowingly" stealing and converting, and made it clear that had the indictment been limited to the words of the statute (to "steal" and "knowingly convert"), it would have been defective for failing to set forth a necessary element of the crime. 342 U.S. at 270 & n.30, 72 S.Ct. at 253 & n.30. In Denmon, we reversed a conviction on an indictment which carried no allegation of specific intent stating that "the failure of the indictment to charge that the defendant acted knowingly, unlawfully, and willfully is fatally defective to the Government's prosecution of this indictment." 483 F.2d at 1095.

The point of both Morissette and Denmon, however, is that specific intent is a necessary element that must be alleged in the indictment; neither case required a particular verbal formula. In our view, the addition of the word "willfully" to the statutory language of "knowingly" is sufficient to convey the allegation that the defendant acted with specific intent. See O'Malley v. United States, 378 F.2d 401, 404 (1st Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 571, 19 L.Ed.2d 606 (1967) ("The words 'willfully and knowingly' amply convey the necessary element of mens rea.").

May also contends that the requirement of specific intent was not explained to the jury. Instruction 10, however, clearly and properly put the issue before the jury. ² See id. at 404 n.3.

More serious is May's argument that he was tried on a theory of conversion so novel and expansive as to be beyond the purview of section 641. Specifically, he alleges that the district court erred in holding that the use of property, as opposed to the property itself, is subject to conversion under the statute. He also contends that the district court erred in instructing the jury on the standard by which conversion is to be judged.

Title 18 U.S.C. § 641 applies to:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another * * * any record, voucher, money or thing of value of the United States * * *.

The first prong of May's argument is that the government has impermissibly expanded the statutory concept of conversion.

At common law, only chattels or tangible property were subject to the tort of conversion. See Restatement (Second) of Torts § 222A (1965). In modern tort law, this rule has been relaxed somewhat in favor of the "reasonable proposition that any intangible generally protected as personal property may be the subject * * * (of) conversion." Pearson v. Dodd, 410 F.2d 701, 707 n.34 (D.C. Cir.), cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (1969). The question at issue here is whether section 641 applies only to conduct involving property which would be the subject of traditional tort law analysis or whether the statutory phrase "money or other thing of value" broadened the application of the statute to conduct involving different types of valuables.

May argues that the only things which could have been converted by his allegedly unauthorized trips are the aircraft and the gasoline used to fly them. The government and the district court took the view that the subject of conversion was flight time in government aircraft. ³ Consistent with this theory, the government introduced evidence of the cost per hour of operation for each airplane, which included the salaries of the pilots and the mechanics who serviced the planes. ⁴

May, relying primarily on Chappell v. United States, 270 F.2d 274 (9th Cir. 1959), argues that any evidence as to the value of intangibles, specifically the salaries of servicemen, was impermissible. In Chappell, the Court reversed, on its own motion, the conviction of a defendant charged with having converted to his own use "the services and labor of * * * an airman in the United States Air Force" by causing the airman during duty hours to paint three private apartments belonging to the defendant. Id. at 275. Reasoning that conversion, like stealing, larceny and their kindred crimes, was limited in subject to tangible chattels, it specifically disapproved Burnett v. United States, 222 F.2d 426 (6th Cir. 1955), in which the Sixth Circuit, without discussing the issue, affirmed a conviction for the conversion of services. "Such offenses were never thought to be committed by one man making use of the services of another's servant without reimbursing the master." Chappell v. United States, supra, 270 F.2d at 276.

The government argues that Chappell has been discredited and is no longer good law. In particular, it relies on United States v. DiGilio, 538 F.2d 972 (3rd Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977), and United States v. Lambert, 446 F.Supp. 890 (D.Conn.1978), aff'd sub nom United States v. Girard, 601 F.2d 69 (2d Cir.), ...