U.S. v. Pommerening, s. 73-1937

• Decision Date: 01 July 1974
• Docket Number: Nos. 73-1937,73-1938,s. 73-1937
• Citation: 500 F.2d 92
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert D. POMMERENING and Cletus A. Reding, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 92

500 F.2d 92

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. POMMERENING and Cletus A. Reding, Defendants-Appellants.

Nos. 73-1937, 73-1938.

United States Court of Appeals, Tenth Circuit.

July 1, 1974, Rehearing Denied Aug. 5, 1974.

Alfred M. Carvajal, Albuquerque, N.M., for defendants-appellants.

Victor R. Ortega, U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Before PICKETT, HILL and DOYLE, Circuit Judges.

HILL, Circuit Judge.

Appellants were indicted by a federal grand jury in the State of New Mexico for bribing a government official in violation of 18 U.S.C. 201(b)(1), and committing perjury before a grand jury of the United States in violation of 18 U.S.C. 1623(a). Subsequently appellants were convicted by a jury on all counts of the indictment.

The following evidence was adduced at trial. In the fall of 1971 appellants began negotiating with Ford Marketing Corporation for the Dick Russell Ford dealership in Clovis, New Mexico. To purchase this dealership appellants needed to borrow $200,000. Rafael Gomez was therefore taken into the partnership, the apparent purpose being that his minority status would assist them in obtaining a Small Business Administration (SBA) minority loan. It was soon learned, however, that appellants could not qualify for a minority program loan because Gomez' interest in the enterprise was only ten percent.

While seeking this minority loan appellants met Moses L. Sanchez, the minority enterprise representative for SBA in New Mexico. After talking to Sanchez appellants began looking for a bank which would make them a loan guaranteed by the SBA. Ultimately appellants applied with First National Bank of Clovis for the $200,000 loan. The bank officer who processed appellants' application testified that appellants behaved as if they already had approval for this loan from Sanchez. On October 29, after the bank tentatively approved the loan, appellants hand carried the loan papers to the SBA office in Albuquerque.

Appellants out of their own funds paid Ford $25,000 as a down payment for the dealership. On November 1, 1971, Ford turned over operation of the dealership to appellants. Two weeks latter, when appellants still had not heard SBA's decision on their loan application, Ford executives began pressing them for the rest of the money.

Sometime prior to November 16, 1971, the following events took place. Sanchez and appellants were discussing SBA loans when the conversation changed to Sanchez' favorite outdoor activities: hunting and fishing. Sanchez mentioned that he was thinking of buying a new Chevrolet four-wheel drive Blazer for his forthcoming elk hunt and was wondering what type of trade-in he could expect on a car he presently owned. A short time later appellant Pommerening asked one of his salesmen to locate a 1972 Chevrolet Blazer with four-wheel drive. Once this was done appellants purchased the Blazer with a corporate check of Dick Russell Ford, Inc. Appellant Reding picked up the Blazer on November 16, 1971, and delivered it to Sanchez at his home in Albuquerque. Sanchez paid no money for the Blazer.

On the day following delivery of the Blazer, Sanchez requested the SBA district director for New Mexico, Clifford Hawley, to expedite appellants' loan application. Hawley immediately dispatched William Glennon, the loan officer assigned to the case, from Albuquerque to Clovis by plane to investigate the loan application. Following Glennon's trip to Clovis, the loan was recommended for approval by Glennon without extensive credit investigation. It was approved by the chief finance officer on December 6, 1971. On January 6, 1972, appellants concluded the Ford dealership purchase.

In August, 1972, Moses Sanchez resigned from his SBA position following the commencement of a bribery investigation into his activities by the United States Attorney's office and the FBI. Shortly after Sanchez' resignation FBI Special Agent Frank Haines visited appellants' Ford dealership, which by now was called Big Country Ford, to trace the 1972 Chevrolet Blazer. Haines asked Pommerening if he could look at records of the Blazer sale, but Pommerening suggested he come back later after the records were found. Because there was no sale Pommerening and Reding, with the assistance of Big Country Ford's bookkeeper, Brian Ballew, prepared a phony invoice reflecting a sale to an 'A. Jenkins' for $5,034.05 in cash. This false information was turned over to Haines. Pommerening also told Haines that the Blazer had been ordered by an unknown contractor and delivered to an Albert Jenks or an A. Jenkins for cash. Later Haines received other documents from Pommerening concerning the Blazer sale; all of these furnished copies were false records which had been prepared by Pommerening's daughter-in-law under the direction of Pommerening and Ballew.

On November 20, 1972, Pommerening and Reding appeared before a grand jury in Albuquerque investigating possible bribery violations by Sanchez. They brought with them subpoenaed corporate books and records containing the false pages previously furnished to the FBI. Pommerening and Reding both testified that the Blazer was sold and delivered in Albuquerque by Reding to Albert Jenks for $5,034.05 in cash, and that such sum went into the corporate treasury. Reding identified a false invoice as being the sale document and Pommerening demonstrated to the grand jury where the money was taken into income in the books. Later Haines returned to Big Country Ford and secured additional documents, including a deposit slip showing that only $269.33 in cash had been deposited in the corporate account at the time of the Blazer transaction.

On January 17, 1973, a new subpoena was served on appellants. That night a fire broke out in the immediate area of the subpoenaed records at Big Country Ford. Clovis firemen extinguished the fire before any records were damaged. The bookkeeper, Ballew, ultimately testified for the government under a grant of immunity. He testified that the fire at Big Country Ford on January 17 was an attempted arson arranged by appellants to destroy the false records. Sanchez had put Pommerening, Reding and Ballew in touch with an arsonist called 'Vince'. Appellants paid Vince $3,000 for the attempted arson.

On January 21, 1973, Pommerening came to Albuquerque with the subpoenaed records in a corporate automobile. The automobile containing the records was allegedly stolen that night from the basement of an Albuquerque motel. Ballew testified that Pommerening arranged with Sanchez to have the car stolen and the records destroyed. Because the genuine records and original false records were never located, although the automobile was recovered, the government used copies previously obtained by the FBI to prove its case.

Following a lengthy trial appellants were convicted on the bribery and perjury counts. Appellants were sentenced to five years on each count, such sentences to run concurrently. In addition, each appellant was ordered to pay one-half the costs of prosecution.

On appeal numerous grounds for reversal are proffered. The first alleged basis for reversal is that the federal bribery statute, 18 U.S.C. 201(b), is unconstitutionally vague since men of common intelligence must guess as to its meaning and differ as to its application. Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

Title 18 U.S.C. 201(b) provides in part:

Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent--

(1) to influence any official act; . . ..

Appellants contend that 18 U.S.C. 201(b) is unconstitutionally vague because the words 'corruptly', 'value', and 'influence' are not defined; as a result the statute does not inform those subject to it what acts must be avoided. We do not find the ambiguity in 201(b) which appellants attribute to it. The words 'corruptly', 'value', and 'influence' are applied in their ordinary, everyday sense. It is obvious from reading 201(b) that Congress intended to prohibit individuals from giving government employees, while they are acting in their official capacity, compensation in return for special favors. Clearly a person of common intelligence would understand from reading 201(b) that giving compensation to a government official in exchange for preferential treatment is not allowed. The ordinary person would therefore understand that giving a $5,000 automobile to a government official, in exchange for that official's influence in expediting a loan application, constitutes corruptly giving of something of value to influence an official act. See United States v. Bishton, 150 U.S.App.D.C. 51, 463 F.2d 887 (1972); United States v. Irwin, 354 F.2d 192 (2d Cir. 1965), cert. den'd, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966).

Appellants next challenge their perjury convictions. It is their position they committed no perjury by testifying before the grand jury from falsified corporate records because it was the United States attorney rather than themselves who 'used' the records. Title 18 U.S.C. 1623(a) prohibits a person from using false records in a grand jury proceeding; since the United States attorney subpoenaed the corporate records, so the argument goes, and appellants merely answered those questions relating to the records which were asked by the United States attorney, appellants did not 'use' the books in a manner prohibited by law. ¹ We cannot agree with appellants' rather legalistic argument. Even if we accept appellants' definition of 'use' as 'meaning to employ for the attainment of some purpose or end, to avail one's self of . . .', 91 C.J.S. Use, at 517, it is clear that appel...