U.S. v. Peters, 79-1184

• Decision Date: 07 July 1980
• Docket Number: No. 79-1184,79-1184
• Citation: 625 F.2d 366
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Glenn PETERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 366

625 F.2d 366

UNITED STATES of America, Plaintiff-Appellee, v. John Glenn PETERS, Defendant-Appellant.

No. 79-1184.

United States Court of Appeals Tenth Circuit.

Argued May 8, 1980.

Decided July 7, 1980.

Teresa M. Black, Asst. U.S. Atty., Oklahoma City, Okl. (Larry D. Patton, U.S. Atty., Oklahoma City, Okl., with her on brief), for plaintiff-appellee.

Warren Gotcher of Gotcher, Gotcher & Taylor, McAlester, Okl., for defendant-appellant.

Before BARRETT and DOYLE, Circuit Judges, and MILLER, ^* Judge.

WILLIAM E. DOYLE, Circuit Judge.

John Glenn Peters here appeals from a judgment convicting him on three counts brought pursuant to 18 U.S.C. 1341, the mail fraud provision. The original indictment contained mail fraud counts and one conspiracy charge. The allegations were that Peters obtained funds from the CETA (Comprehensive Employment and Training Act) program for training three new employees. In fact, two of the employees sponsored by the program had worked for Peters previously and none of the three received the type of training required. Peters was tried to a jury, along with two codefendants before the Honorable Luther B. Eubanks, U.S. District Judge for the Western District of Oklahoma presiding. His two codefendants were acquitted. Peters was sentenced to three years' probation and $1,000 fine on each count, the sentences to be served concurrently. He was, in addition, ordered to repay $1,512.00 to CETA. This was restitution for three CETA reimbursement checks which the jury found that Peters had fraudulently received.

The first issue advanced by the defendant-appellant is whether the indictment should have been dismissed, his contention being that the government misused process in indicting him. His further contentions are that the evidence was inadequate, particularly in the area of criminal intent, and that there was a Jencks Act violation growing out of the failure of the trial court to examine grand jury testimony for relevance.

We have concluded that the judgment must be affirmed in part, with the exception of that aspect having to do with the Jencks Act. We remand that part of the case so that the trial court can examine the transcripts and determine their relevancy in accordance with the Jencks Act.

The alleged mail fraud violations arose in connection with the operation of a meat processing business in McAlester, Oklahoma. Peters had operated this business prior to September 17, 1974. On that date he sold it to one Alex Van Zandt, who had obtained an SBA loan to purchase it. Peters sold the business, but retained the building in which it was located. Van Zandt immediately ran into financial trouble. Peters loaned the corporation sums of money in order to keep the business running. He served also as general manager, but was not paid for his services.

In the fall of 1974, arrangements were made to obtain CETA funds to defray wage expenses for three employees. The Oklahoma Employment Security Commission approved a grant of $2,160 for the purpose of training three new employees as meat clerks in an on-the-job training program. This, in accordance with the Act, was to provide employment together with job training for unemployed persons. The contract and the regulations require the employees to be unemployed for at least one week, and the employer must conduct a training program for the CETA-sponsored employees.

Peters denied that he helped Van Zandt obtain the described contract, but Van Zandt testified as a witness against Peters. He said that Peters went with him to the Oklahoma Security Commission to make the arrangements. Peters said that Van Zandt had not told him what the program was, but had said that he was going to get some help from the government to pay salaries for new employees. Thereupon, one Laura I. Mass was hired as a meat wrapper. Carey L. Cole and Bill Collins, Jr., previous McAlester Frozen Foods employees under Peters, were brought into the company under the CETA program. These people had been employed by McAlester Frozen Foods at the time they were brought into the program. There is no question but that Collins and Cole had been trained for the positions that they occupied and there was no new training after they were put under CETA. As a result of Van Zandt having difficulty in meeting the expenses, he, in February 1975, released the building lease to Peters, who took over and operated it as a sole proprietorship. Peters' testimony was that he, at that time, called on the CETA office as to what to do about the contract. He was told to leave it in force since it had only 90 days left to run. Later, the FBI conducted an investigation as to the obtaining of the SBA loan by Van Zandt. The investigation leading to the present indictments developed from this FBI investigation.

I.

The first point argued is that the government had an invalid motive in bringing the charges.

This consisted of an effort to get Peters to sign a statement incriminating one Gene Stipe. Peters refused to do this. Peters testified, in addition, that he was threatened that unless he would testify against Stipe, that he would be taken care of. This point does not satisfy the standards set forth in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1975), and Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Neither of the cases cited govern the present case. The record here shows probable cause for presenting this matter to the grand jury. The kind of vindictiveness that affects due process such as was present in Blackledge is lacking.

II.

We have considered the further contention that there was a violation of Rule 16(a) by not disclosing to the defendant his statements made to the FBI.

The nondisclosure was not shown to have been prejudicial to the substantial rights of the defendant. See United States v. Jensen, 608 F.2d 1349, 1357 (10th Cir. 1979); United States v. Heath, 580 F.2d 1011, 1021 (10th Cir. 1978), cert. denied 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979); McClendon v. United States, 587 F.2d 384, 388 (8th Cir. 1978), cert. denied 440 U.S. 983, 99 S.Ct. 1793, 60 L.Ed.2d 244 (1979); United States v. Ross, 511 F.2d 757, 764 (5th Cir.), cert. denied 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).

Conversations between Peters and one Billie Cantrell do not appear to have anything to do with the CETA fraud case and do not contain any evidence having a tendency to show that Peters was innocent. Billie Cantrell is the wife of Billy Francis Cantrell. She was not a witness in the present case.

Our conclusion is that this contention has no merit.

III.

As to the alleged insufficiency of the evidence, Peters' contention is that it is inadequate to establish that he was aware of the standards and requirements of the CETA program.

We are cognizant of the necessity for considering the evidence in a light most favorable to the government. See United States v. Wolf, 561 F.2d 1376, 1378 (10th Cir. 1977); United States v. Curtis, 537 F.2d 1091, 1097 (10th Cir.), cert. denied 429 U.S. 962, 97 S.Ct. 389, 50 L.Ed.2d 330 (1976). We are also aware that it is for the jury to finally consider the weight to be given to the evidence and the credibility of witnesses. Madrid v. Mine Safety Appliance Co., 486 F.2d 856, 858 (10th Cir. 1973). Moreover, willfulness is not ordinarily provable by direct evidence. It must be inferred from basic facts. United States v. Wolf, supra ; United States v. Curtis, supra ; United States v. Seasholtz, 435 F.2d 4 (10th Cir. 1970); Crosby v. United States, 183 F.2d 373, 375 (10th Cir.), cert. denied 340 U.S. 906, 71 S.Ct. 274, 95 L.Ed. 656 (1950).

There is a factual conflict on the question whether or not the defendant knew that the CETA program required that persons coming under it be new employees and thus not previously trained. The facts and circumstances are susceptible to the inference that Peters did have knowledge of this requirement. Certainly Peters knew that the people were employed there prior to their having been placed under the CETA program.

Van Zandt testified that Peters went to the CETA office with him to make the arrangements. When Peters resumed ownership, he did not lack knowledge or information on how the business was being operated. During the time prior thereto, he was participating in it and he certainly knew that Cole and Collins were old employees. Thus it is impossible to say that there was no basis for inferring that he knew of their condition.

IV. WAS THERE A VIOLATION OF THE JENCKS ACT?

Objection was made following the direct examination of Billy Francis Cantrell. This objection was pursuant to the Jencks Act, 18 U.S.C. § 3500. Cantrell's testimony was damaging to the defendant in that it was shown that he had worked for Peters for five years (at the meat processing plant). He testified to the fact that Peters stated that he was going to go get government money to pay part of Collins' and Cole's salaries. Also, Cantrell was named as one of the persons in charge of training under the CETA program. He was to teach personal safety and machine operation. He testified that he had not known that he was doing training. He also said that neither Collins nor Cole received any training at the time in question and that Peters had known that Collins and Cole were not employees who had been hired for the first time in order to provide them with the required training. Cantrell said that Peters was the boss and that "he run the plant." On cross-examination Cantrell was asked whether, when he referred to government money, it may have been the SBA loan with which Van Zandt purchased the business.

When counsel for the defendant demanded the Jencks material related to Cantrell, the U.S. Attorney stated that he had provided what he considered the only material which was within the scope of the Jencks Act. The United States Attorney agreed that the government had in its possession certain other testimony...