U.S. v. Schmidt

• Decision Date: 22 July 1983
• Docket Number: No. 83-1090,83-1090
• Citation: 711 F.2d 595
• Parties: 13 Fed. R. Evid. Serv. 1415 UNITED STATES of America, Plaintiff-Appellee, v. Charles H. SCHMIDT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 595

711 F.2d 595

13 Fed. R. Evid. Serv. 1415

UNITED STATES of America, Plaintiff-Appellee, v. Charles H. SCHMIDT, Defendant-Appellant.

No. 83-1090.

United States Court of Appeals, Fifth Circuit.

July 22, 1983.

Underwood, Wilson, Berry, Stein & Johnson, A.W. Sorelle, III, Harlow Sprouse, Amarillo, Tex., Dougald D. McMillan, Dallas, Tex., for defendant-appellant.

John J. Powers, III, Dept. of Justice, Antitrust Div., Margaret G. Halpern, Washington, D.C., for plaintiff-appellee.

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

Before GARZA, POLITZ and TATE, Circuit Judges.

GARZA, Circuit Judge:

Defendant-appellant, Charles Schmidt, appeals from his conviction after a jury trial on one count of making false statements before a grand jury in violation of 18 U.S.C. § 1623. Schmidt raises numerous grounds for error including challenges to the indictment, to the grand jury selection and to the lower court's refusal to admit expert testimony. He also raises a speedy trial claim. Finding no reversible error, we affirm.

Charles Schmidt is part owner of a highway paving construction firm located in Amarillo, Texas. As part of a series of investigations by the Department of Justice into illegal "bidrigging" for government contracts, Schmidt was called to testify before a federal grand jury sitting in Austin, Texas on January 22, 1981. He began testifying at 11:15 a.m. and was dismissed late in the day at the end of proceedings for that day. During his examination, Schmidt was asked questions generally about his work and his method for calculating bids for government contracts. He was then asked about several specific projects and asked to explain various "coincidences" in bidding which government attorneys suggested were reflected by comparison of bids submitted and projects awarded when certain combinations of firms were involved in submitting bids. Finally, Schmidt was asked to answer a series of questions all of which sought to determine if Schmidt knew of or had ever been involved in illegal bidrigging. Schmidt exercised no fifth amendment privilege, but rather chose to answer each of the questions in the negative. Other than lunch recess and several breaks, Schmidt never requested permission nor took the opportunity to speak with his retained counsel who was present outside the grand jury room. Based on his answers to this last series of questions, Schmidt was indicted and subsequently convicted for false swearing.

Sufficiency of the Indictment and Evidence

Schmidt first raises several challenges to the indictment itself. He contends that the indictment was deficient because it failed to allege an offense or advise him of the charges being made. His contention rests upon the language in two paragraphs (pp 5 and 6) of Count 1 of the indictment under which Schmidt was brought to trial.

Paragraph 5 sets forth the supposedly false statements he made before the grand jury:

Q. Has any contractor or representative of a contracting firm ever asked you or someone else from your company to submit a cover or complementary bid as you have defined it?

A. Not--not that I remember. Not that I remember.

Q. Has any other general contractor or representative of another general contractor asked you or another member of the company if they could have a particular job?

A. No.

Q. Has any contractor or employee of a contracting firm ever given you or a representative or your company a dollar figure or markup figure and asked you to submit a bid higher than that figure?

A. Not that I know of.

Q. Have you or anyone else in your company ever offered to--or been requested to exchange a cover bid or a complementary bid or promised not to bid on a particular project?

A. No.

Paragraph 6 explains why these statements are false stating that Schmidt's declarations "were untrue and false in that he was aware that he had agreed with at least one other Texas highway contractor to refrain from bidding competitively on a Texas highway project and agreed to turn in a complementary bid on the project on behalf of the other contractor."

Schmidt asserts that the "truth" allegations in paragraph 6, which refer to whether he was "aware of" or had "agreed to" make complementary bids, do not directly contradict or put into issue the alleged false statements in paragraph 5, which refer to whether he "or anyone else in his company" had been "asked," "requested," or "promised" to make these bids. We disagree.

Looking at the indictment as a whole and heeding "practical, not technical considerations," United States v. Markham, 537 F.2d 187, 192 (5th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977), this indictment is sufficient because it contains the elements of the offense charged and fairly informs the defendant of the charge against him. Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974). Even a cursory reading of the indictment establishes what statements the government alleged to be false and why such was in fact the case. It is obvious that if the facts alleged in paragraph 6 were true, then Schmidt's statements in paragraph 5 were false. If in fact Schmidt "had agreed to" submit a complementary bid as alleged in paragraph 6, then such presupposes that he was in fact "asked" or "requested" to submit the bid which he had denied in paragraph 5.

Furthermore, contrary to Schmidt's assertion, the evidence clearly established the "truth" allegations of paragraph 6. At trial, the government introduced evidence from four contractors indicating that Schmidt had actively participated in bidrigging by submitting complementary bids in a substantial number of cases. Such evidence established that Schmidt materially lied in his grand jury testimony denying both his knowledge and participation in and his recall of bidrigging activities. We must reject, therefore, appellant's challenges to the indictment and sufficiency of evidence.

Expert Testimony

Schmidt's second contention raises a more serious concern. Appellant challenges the exclusion by the trial court of testimony by a linguistics expert which appellant claims was vital to the presentation of his theory of defense. At trial, Schmidt attempted to establish that whatever falsehoods he may have stated before the grand jury were not knowingly and willfully uttered. The defense sought to establish that after five and one-half hours of otherwise truthful testimony which in part detailed facts about specific transactions, Schmidt's uncertain responses (such as "not that I remember") to various global questions by the government were not intentional and knowing falsehoods, if at all.

For reasons not relevant to our consideration of this issue, Schmidt chose not to testify himself at trial. Instead, the defense sought to introduce the expert testimony of psycholinguistics professor, William Peters, for the purpose of placing into context the alleged falsehoods uttered by Schmidt. In a proffer of testimony outside the jury's presence, Peters explained how certain answers to certain questions, which on their face might appear to be false, could in fact be interpreted otherwise when placed in the total context of a discussion. ¹ He also explained that the length of Schmidt's testimony, the stress he was under and the global nature of the questions asked by the government could have affected the manner in which Schmidt interpreted the questions and responded to them.

After careful deliberation, the district court denied appellant's proffer of expert testimony finding that the evidence would "not assist the trier of facts to better understand the evidence or to determine any fact in issue." The court found that the issue presented was not complex and that the jury was more than capable of examining and considering the context in which the defendant had testified. More importantly, the court found that the admission of the proffered testimony would tend only "to confuse the issues and would tend to mislead, rather than assist, the finder of facts." We must determine if the court abused its discretion.

Fed.R.Evid. 702 states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise." (emphasis added). It is the duty of the trial court, however, to determine whether under the facts of a particular case the proffered testimony will aid the jury in its deliberation. The court has wide discretion to admit or exclude expert testimony and such action will be sustained unless manifestly erroneous. Salem v. United States, 370 U.S. 31, 82 S.Ct 1119, 8 L.Ed.2d 313 (1962); Page v. Barko Hydraulics, 673 F.2d 134, 139 (5th Cir.1982); United States v. Lopez, 543 F.2d 1156, 1158 (5th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1150, 51 L.Ed.2d 566 (1977); 3 Weinstein's Evidence § 702. Although Rule 702 "somewhat broadens the range of admissibility, it by no means mandates admission of such testimony." United States v. Lopez, supra. Expert testimony, like any other testimony, may be excluded if, compared to its probative worth, it would create a substantial danger of undue prejudice or confusion. Fed.R.Evid. 403. In reviewing the lower court's exercise of discretion we are mindful that an appellate court, unlike the court below, "does not have the benefit of the first hand observation of the witnesses and testimony as it unfolds before the jury," Meineke Discount Muffler Shops, Inc. v. Bleier, --- F.2d ---- (5th Cir. June 23, 1983); accordingly, only in exceptional circumstances will reversible error be found in the district court's determination of the probative value of testimony in a particular case. Offshore, Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104, 1107 (5th Cir.1981).

We do not believe the district...