U.S. v. Saenz, 74--3451

• Decision Date: 21 April 1975
• Docket Number: No. 74--3451,74--3451
• Citation: 511 F.2d 766
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Octavio SAENZ, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 766

511 F.2d 766

UNITED STATES of America, Plaintiff-Appellee, v. Octavio SAENZ, Defendant-Appellant.

No. 74--3451 Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

April 21, 1975.

Rehearing and Rehearing En Banc

Denied June 9, 1975.

James R. Gillespie, San Antonio, Tex., for defendant-appellant.

William S. Sessions, U.S. Atty., John E. Clark, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.

PER CURIAM:

Appellant Octavio Saenz appeals his conviction for making false material declarations before the grand jury in violation of 18 U.S.C. § 1623. He alleges there was insufficient evidence, that the declarations were not material to the issue before the grand jury, and that the court did not comply with Rule 32(a)(1) F.R.Cr.P., in sentencing him. We have reviewed the record and find these allegations to be without merit. The conviction is affirmed.

Appellant is the mayor of Benavides, Texas, a position he has held since 1955. Appellant was convicted of lying to the grand jury about the reason he withdrew $5,000 from a bank account styled 'City of Benavides Special Sinking Fund,' and his involvement in and knowledge of the opening of the account. In 1972, a federal grand jury in San Antonio began an investigation of George B. Parr for tax evasion. Parr was eventually convicted, and his conviction has been affirmed by this Court. Parr was counsel for the Duval County Water District, and there was much evidence that Parr had used water district funds for his own use. See United States v. Parr, 509 F.2d 1381 (5th Cir. 1975). Parr purchased irrigation equipment from a company in Houston and paid for part of it from the City of Benavides Special Sinking Fund. The fund had been established when a bank in Dallas returned some $39,000 to the city after bonds were paid for. Though the draft for some $33,000 worth of equipment was drawn on the water district, the account was paid with Benavides funds. The bank was unable to explain the reason for this.

Five days after the $33,000 draft, appellant withdrew $5,000 from the same account for himself. The grand jury questioned appellant about the two transactions. He denied any knowledge of the $33,000 withdrawal. He testified the $5,000 was compensation for his services and had been agreed to by the city council. Appellant denied knowing when the sinking fund was established, how much money was deposited, or giving the Dallas bank instructions to transfer the money to the local bank.

At trial it was established that the city council had never authorized the $5,000 to appellant. A Dallas banker, Banyon, testified about appellant's instructions to him regarding the transfer of the money. There was also evidence of appellant's signature on the signature cards.

Appellant took the stand and denied remembering any transactions with the Dallas bank. He admitted the genuineness of his signature.

Viewed in the light most favorable to the government, and drawing all reasonable inferences therefrom, there was sufficient evidence to convict appellant of false testimony before the grand jury. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941). Appellant's testimony was contradicted on both counts and in regard to both instances in the indictment. The question of credibility was...