U.S. v. Rodgers

• Decision Date: 27 August 1980
• Docket Number: No. 79-5381,79-5381
• Citation: 624 F.2d 1303
• Parties: 28 Cont.Cas.Fed. (CCH) 80,843 UNITED STATES of America, Plaintiff-Appellee, v. Charles L. RODGERS, Anthony J. Bertucci Construction Co., Inc., Mack A. Mathis, Alois Luhr and Luhr Bros., Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1303

624 F.2d 1303

28 Cont.Cas.Fed. (CCH) 80,843

UNITED STATES of America, Plaintiff-Appellee, v. Charles L. RODGERS, Anthony J. Bertucci Construction Co Inc., Mack A. Mathis, Alois Luhr and Luhr Bros Inc., Defendants-Appellants.

No. 79-5381.

United States Court of Appeals Fifth Circuit.

Aug. 27, 1980.

Jacques F. Bezou, Milton E. Brener, New Orleans, La., for Rodgers.

Francis G. Weller, New Orleans, La., for Bertucci.

John R. Martzell, New Orleans, La., for Mathis.

Bruce C. Rohde, Omaha, Neb., for Luhr & Luhr Bros.

Robert B. Nicholson, J. Mark Manner, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, FRANK M. JOHNSON, Jr., and HENDERSON, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Defendants Alois Luhr, Mack A. Mathis, Charles Rodgers, Anthony J. Bertucci Construction Company (Bertucci Co.), and Luhr Brothers, Inc. (Luhr Bros.) ¹ appeal multiple convictions of mail fraud, 18 U.S.C. § 1341, ² and of making false statements to a federal agency, 18 U.S.C. § 1001. ³ Appellants' challenge is both vigorous and multipronged. Nevertheless, careful examination of applicable legal authority and of a voluminous record composed of nearly five thousand nine hundred pages convinces us that the contentions of defendants are insufficient to justify our disturbing their convictions. Accordingly, we affirm.

The prosecution arose from a comprehensive investigation conducted by the Antitrust Division of the United States Department of Justice into the practices of the river construction industry of the Mississippi River and its major tributaries. On September 27, 1978, a grand jury of the Eastern District of Louisiana indicted much of that industry ten individuals and sixteen corporations. The indictment charged one count of conspiracy to restrain competition in violation of the Sherman Act, ⁴ twenty-nine counts of mail fraud, and twenty-four counts of false statement. ⁵ The charges related to an alleged bid-rigging scheme carried out by the industry between 1964 and 1978 for the allocation of river bank stabilization projects ⁶ awarded by the United States Army Corps of Engineers (Corps). ⁷

The district court severed the Sherman Act count and, on May 14, 1979, the remaining counts came to trial. The jury found each of the defendants who elected to stand trial ⁸ guilty on all counts charged. ⁹

I. MAIL FRAUD

"The mail fraud statute, 18 U.S.C. § 1341, condemns any scheme to defraud in which the mails are used." United States v. Kreimer, 609 F.2d 126, 128 (5th Cir. 1980). In order to convict of mail fraud, the prosecution must establish beyond a reasonable doubt three elements: "(1) defendants' participation in a 'scheme or artifice to defraud,' . . .; (2) use of the mails 'caused' by someone associated with the scheme, . . .; and (3) use of the mails 'for the purpose of executing the scheme.' " United States v. Knight, 607 F.2d 1172, 1175 (5th Cir. 1979) (citations omitted); e. g., United States v. Kent, 608 F.2d 542, 545 (5th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980); United States v. Zicree, 605 F.2d 1381, 1384 (5th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). On appeal defendants challenge the sufficiency of the evidence of all three elements. They assert that the proof at trial established not the one scheme to defraud that was charged in the indictment but rather multiple schemes; that the evidence did not support the jury's conclusion that each defendant participated in the scheme; and that the mailings upon which the mail fraud charges were brought were made after the scheme had ended and therefore were not "caused" by the scheme or "for the purpose" of its execution.

Our task on review is to determine " 'whether the jury could reasonably, logically, and legally infer from the evidence presented that (the defendants were) guilty beyond a reasonable doubt. . . . Put another way, could the jury reasonably find that the evidence was inconsistent with every hypothesis of innocence?' " United States v. Habel, 613 F.2d 1321, 1324 (5th Cir. 1980) (quoting United States v. Littrell, 574 F.2d 828, 832 & n. 3 (5th Cir. 1978)). Of course, in making this determination we consider the evidence in the light most favorable to the government with all reasonable inferences drawn in support of the verdict. Hamling v. United States, 418 U.S 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Habel, supra, 613 F.2d at 1324; United States v. Wentland, 582 F.2d 1022, 1026 (5th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979).

We conclude that the government met its burden of proof and the jury properly exercised its role. The convictions, therefore, must stand.

A. Scheme or Schemes

Relying upon the applicability of conspiracy law principles to mail fraud prosecutions, see United States v. Freeman, 619 F.2d 1112, 1123 (5th Cir. 1980); United States v. Toney, 598 F.2d 1349, 1355 (5th Cir. 1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); United States v. Krohn, 573 F.2d 1382, 1386 (10th Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978); United States v. AMREP Corp., 560 F.2d 539, 545 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 731, 54 L.Ed.2d 759 (1978); United States v. Perkal, 530 F.2d 604, 606 (4th Cir.), cert. denied, 429 U.S. 821, 97 S.Ct. 70, 50 L.Ed.2d 82 (1976); United States v. Cohen, 516 F.2d 1358, 1364 (8th Cir. 1975); United States v. Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974); United States v. Joyce, 499 F.2d 9, 16-17 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974), defendants contend that the evidence adduced at trial indicated the existence of multiple, isolated schemes and not the single scheme charged in the indictment. Accordingly, appellants urge that they suffered from a prejudicial "variance" between the indictment and proof at trial within the doctrine of Kotteakos v. United States, 328 U.S. 750, 772-73, 66 S.Ct. 1239, 1251-1252, 90 L.Ed. 1557 (1945). The jury properly could have concluded that the defendants were involved in several and not one scheme to defraud, United States v. Thomas, 586 F.2d 123, 132 (9th Cir. 1978); United States v. Becker, 569 F.2d 951, 961 (5th Cir.), cert. denied, 439 U.S. 865, 1048, 99 S.Ct. 188, 726, 58 L.Ed.2d 174 (1978); United States v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir. 1975). However, it did not.

The present case is not one in which the indictment itself charged several criminal agreements. See United States v. Bowline, 593 F.2d 944, 946 (10th Cir. 1979). Neither is it one in which no evidence was presented that would indicate a common criminal plan or agreement. See United States v. Fuel, 583 F.2d 978, 981 (8th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Rather, the indictment charged a scheme to defraud that continued from 1964 to 1978. Moreover, the evidence clearly supported the conclusion of a single scheme with a common goal, operations carried out in virtually identical manner, and an overlapping of participants. United States v. Becker, supra, 569 F.2d at 960. The presence of these factors is more than sufficient to refute defendants' argument of a prejudicial variance.

The evidence presented at trial indicated a long-running scheme designed to circumvent competitive bidding procedures of the Corps of Engineers ¹⁰ by "arranging" bids in order to allocate the river construction work. The government's principal witnesses were four river contractors ¹¹ who testified in detail regarding pre-bid allocation meetings over a period of years and in a number of cities including Omaha, Kansas City, St. Louis, Memphis, Vicksburg, and New Orleans. The operation of the scheme remained consistent over the years; through face-to-face meetings or telephone conversations the river contractors would collectively agree on who would be awarded the Corps jobs. The other co-schemers were then given prices "to clear" or "to protect" and either submitted complementary bids or did not bid at all. The common goal, to allocate Corps of Engineers river construction work, also remained constant.

Participants in individual aspects of the scheme over the years varied to some extent. Overall, however, there remained a high level of commonality. Defendant Luhr was placed at the center of the scheme from beginning to end and throughout the geographical area involved in the case. The government's first witness, Mr. Tully, testified that Luhr participated in allocation meetings in Kansas City in 1964, in Kansas City and Omaha in 1975 and 1976, in Memphis in 1973, and in New Orleans in 1976. According to Tully, Rodgers also attended meetings in Kansas City and New Orleans in 1976. Similarly, defendant Mathis was involved in allocation discussions in Memphis, Vicksburg, and New Orleans.

Defendants also assert that even if the evidence was sufficient to support a finding of one scheme, because the question was for the jury, see United States v. Becker, supra, 569 F.2d at 961; United States v. Rodriguez, supra, 509 F.2d at 1348, the court committed reversible error in refusing to charge the jury specifically on the possibility of finding multiple schemes. We disagree. While such an instruction may be "good" practice, United States v. Levine, 569 F.2d 1175, 1178 n.6 (1st Cir.), cert. denied, 436 U.S. 928, 98 S.Ct. 2824, 56 L.Ed.2d 771 (1978), prior decisions of this Court in no way require a finding of reversible error when such a charge is not given. In charging the jury the court carefully instructed that no individual could be found guilty of mail fraud unless the government proved beyond a reasonable doubt that he "knowingly and willfully...