U.S. v. McComb, 83-1708

• Decision Date: 07 December 1984
• Docket Number: No. 83-1708,83-1708
• Citation: U.S. v. McComb, 744 F.2d 555 (7th Cir. 1984)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas V. McCOMB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 555

744 F.2d 555

UNITED STATES of America, Plaintiff-Appellee, v.Thomas V. McCOMB, Defendant-Appellant.

No. 83-1708.

United States Court of Appeals Seventh Circuit.

Argued Feb. 23, 1984.

Decided Aug. 31, 1984.

As Amended Sept. 25, 1984.

Rehearing and Rehearing En Banc Denied Dec. 7, 1984.

Philip R. Melangton, Jr., Melangton, Bradford & Snow, Indianapolis, Ind., for defendant-appellant.

Richard L. Darst, First Asst. U.S. Atty., Sarah Evans Barker, John Daniel Tinder, U.S.Attys., Indianapolis, Ind., for plaintiff-appellee.

Before ESCHBACH and POSNER, Circuit Judges, and MARSHALL, District Judge.^*

ESCHBACH, Circuit Judge.

The appellant, Thomas V. McComb, was charged in a 12-count indictment with endeavoring to obstruct justice, 18 U.S.C. Sec. 1503(Counts 1-8), and making false statements under oath before a federal grand jury, 18 U.S.C. Sec. 1623(Counts 9-12).After a jury trial, he was convicted on two counts of obstruction of justice and two counts of making false statements and acquitted on the rest of the charges.¹The appellant raises several challenges to his convictions, among them (1) that the conduct alleged in the indictment and proved at trial does not constitute an offense under Sec. 1503, (2) that the government failed to prove the materiality of his false statements before the grand jury, and (3) that the evidence was insufficient to convict on all counts.

We have examined the appellant's contentions and find them to be without merit.Accordingly, we affirm the judgments of conviction.

I.

Thomas McComb was an Indiana state legislator from 1966 to 1974.He did not seek reelection in 1974, and instead formed McComb and Associates, a firm which handled management and lobbying activities for various trade associations in Indiana.In 1978, the firm was hired by Construction Managers Association of Indiana, Inc.("CMAI") to render advice on legislation and, later, to provide management services.

In 1979, a bill was introduced in the Indiana General Assembly which would have prohibited an architect or consulting engineer from serving as a construction manager on public projects which he had designed.This bill, denominated S.B. 245 was opposed by CMAI.The bill passed the Senate rapidly, and was sent to the House on February 19, 1979.

In an effort to stop the bill, McComb arranged a meeting at the Indiana Statehouse between Kent Howard, an unpaid aide of House Speaker Kermit Burrous, and members of the CMAI.Michael Carr, CMAI's president, Wendell Ealy, CMAI's treasurer, and McComb were the only CMAI representatives who attended the meeting.The CMAI representatives explained their opposition to the bill, and McComb and Howard then had a brief private conversation.Howard then advised the CMAI members that a $5,000 contribution to Speaker Burrous's campaign committee ("Burrous '80") would be required and that the contributions should be made by checks postdated June 1, after the legislature recessed.The CMAI members understood that the contribution would be required to insure the assignment of the bill to a committee favorable to CMAI's position.²

The CMAI members began collecting contributions, and by February 20they had obtained about $1,300.In order to have at least half of the $5,000 as "good faith" money, Ealy wrote a check to cash for $1,200 on the CMAI account.

In March 1980, a federal grand jury began investigating payoffs in the Indiana legislature, and on May 27, 1980, Ealy received a subpoena commanding him to appear before the grand jury with all personal and CMAI records relating to contributions to the Burrous '80 committee.Ealy signed a waiver of appearance form, turned over the records he had to the FBI, and contacted Carr and McComb.Carr was concerned that the $1,200 check to cash would be discovered in the records and that CMAI would be unable to explain the use of the proceeds.McComb suggested that they could say that the $1,200 had been used by CMAI as a loan to cover start-up expenses for its political action committee ("PAC").On June 4, McComb received a subpoena identical to the one that had been served on Ealy and turned over a box of records to the FBI.In the box was the cancelled $1,200 check.

In order to substantiate the story about the loan to the PAC, McComb sometime later in June fabricated minutes detailing a nonexistent meeting of the CMAI board of directors on March 1, 1979.The minutes purported to authorize a $1,200 loan from CMAI to a newly-formed CMAI PAC.It is undisputed that the events memorialized in the minutes never occurred.

The March 1980 Grand Jury was dismissed in November 1980.The grand jury had received the CMAI material, but had returned it to the FBI for analysis.In December 1981, another grand jury was impaneled, and subpoenas were issued to various members of the CMAI.Michael Carr had moved to Texas and, unbeknownst to McComb, had begun cooperating with the investigating authorities.On March 25, 1982, McComb called Carr, who had consented to have his conversations recorded.McComb and Carr had met only three days earlier to discuss the grand jury investigation.During the March 25 conversation, McComb told Carr that he had composed a "sequence of legislation," which apparently was a reconstruction of events surrounding the CMAI's efforts to defeat S.B. 245.He then told Carr that if Carr believed there had been any impropriety, he had "better forget it because there wasn't or [McComb] woulda resigned on the spot."The conversation continued:

McComb: I just don't, I just don't commit federal or state crimes.

Carr: All right.

McComb: Okay?

Carr: Yeah.

McComb: If, if that in fact you feel happened and you say that, they're gonna indict you.

Carr: I see.

McComb: You.

Carr: Yeah, I don't want that ta happen.

McComb: No. I don't think ya do.

McComb appeared before the December 1981 Grand Jury on March 31, 1982.He testified that the CMAI had made a $1,200 loan to its PAC in February or March, 1979.McComb was asked whether he had ever come into possession of checks.He replied that he had, that the checks were made out to the Burrous '80 campaign, and that he had instructed his staff to forward the checks to the campaign's headquarters.Laura Ullmann, McComb's secretary, later testified at trial that she had received two parcels containing cash and checks written to the Burrous '80 committee.She locked the parcels in McComb's credenza, and asked McComb later what the parcels were.According to Ullmann, McComb told her not to worry about the parcels, and she never saw them again.

II.

A.Count 3: Obstruction of Justice

Count 3 charged McComb with endeavoring to obstruct justice by altering the CMAI minutes.McComb alleges several errors in his conviction on this count.

First, he argues that the preparation of false minutes in this instance is not conduct proscribed by Sec. 1503.McComb does not argue that the alteration of records can never amount to an obstruction of justice.³See, e.g., United States v. Rasheed, 663 F.2d 843(9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315(1982)(concealing ledgers);United States v. Faudman, 640 F.2d 20(6th Cir.1981)(altering and destroying corporate records);United States v. Walasek, 527 F.2d 676(3d Cir.1975)(destroying corporate records).Rather, he argues that his conduct is not reached by the statute because no subpoena had yet issued for CMAI's minutes.

The government disputes McComb's reading of the subpoenas issued for CMAI's records.It notes that the Ealy subpoena on May 27 and the McComb subpoena on June 4 asked for "all personal records and all records of [CMAI] regarding any and all contributions and funds contributed to the Burrous for '80 committee or campaign."The government contends that the $1,200 check was written to enable CMAI to collect at least half of the promised $5,000 contribution requested by Howard.The minutes, then, were written to provide an innocent explanation for the check's existence.Therefore, the government reasons, the minutes would fall within the subpoenas' request for records regarding contributions to the Burrous campaign.

While the government's reading of the subpoenas is plausible, we need not decide whether the minutes fell within the literal reach of the subpoenas.We are convinced that it is an endeavor to obstruct justice for one who has received a grand jury subpoena, and turned over documents pursuant to that subpoena, to fabricate records to provide an innocent gloss to the records already before the grand jury.Cf.United States v. Turcotte, 515 F.2d 145(2d Cir.), cert. denied, 423 U.S. 1032, 96 S.Ct. 564, 46 L.Ed.2d 406(1975)(Sec. 1503 violated when defendants fabricated story for potential witness to tell grand jury even though witness had not been subpoenaed);United States v. Fineman, 434 F.Supp. 197(E.D.Pa.1977), aff'd, 571 F.2d 572(3d Cir.), cert. denied, 436 U.S. 945, 98 S.Ct. 2847, 56 L.Ed.2d 786(1978)(obstruction of justice for defendant to cause destruction of incriminating letter when he knew grand jury was investigating him and had reason to believe letter would come to light).McComb's claim that he created the records to cover up a possible state felony, rather than to mislead the grand jury, must also be rejected.The evidence shows that CMAI president Carr discussed the check with McComb after the 1980 subpoenas had been served, and McComb suggested the story about a loan to the PAC.Knowing that the grand jury was in possession of the check and aware of the subject matter of the investigation from the subpoenas, McComb fabricated the minutes, which he later turned over to a different grand jury.

McComb's other claims under Count 3 go to the sufficiency of the evidence.The parties agree that a prerequisite for a conviction for obstruction of justice is the pendency of a judicial proceeding which equates to an "administration of justice."SeeUnited States v....