U.S. v. Scott

• Decision Date: 31 December 1981
• Docket Number: No. 81-1702,81-1702
• Parties: 9 Fed. R. Evid. Serv. 899 UNITED STATES of America, Appellee, v. Thomas W. SCOTT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 384

668 F.2d 384

9 Fed. R. Evid. Serv. 899

UNITED STATES of America, Appellee, v. Thomas W. SCOTT, Appellant.

No. 81-1702.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1981.

Decided Dec. 31, 1981.

Mark S. Cambiano, argued, Morrilton, Ark., for appellant, Thomas W. scott.

George W. Proctor, U. S. Atty., Terry L. Derden, argued, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before HEANEY and McMILLIAN, Circuit Judges, and REGAN ^*, Senior District Judge.

REGAN, Senior District Judge.

Thomas W. Scott was convicted by a jury on one count of conspiracy to violate 18 U.S.C. § 1341 (the mail fraud statute) and two counts of mail fraud. He was sentenced to two years imprisonment on each charge. Execution was suspended on the mail fraud counts with two years probation on each to run concurrently with each other and consecutive to the conspiracy sentence. This appeal is from the order of the district judge overruling defendant's motion for a new trial. ¹

At the times involved, Scott was the elected county judge and ex officio road commissioner of Conway County, Arkansas. As part of his duties, he would purchase gear lubricant and approve for payment out of county funds claims for the purchase price of the gear lubricant as shown on the seller's invoices. Based on such approval, a warrant would be issued for payment of each claim and mailed or otherwise delivered to the seller.

The evidence was amply sufficient to warrant the finding of the jury that Scott and Louis R. "Joe" Spilka entered into an arrangement whereby Scott, on behalf of Conway County, from time to time would and did purchase gear lube from Spilka at greatly inflated prices, and as part of their arrangement, Spilka would and did submit invoices (the claims on which Scott would and did approve) some of which were "padded" as to quantities and others of which were bogus, on the basis of which Spilka would and did pay Scott a stipulated "commission" or kickback on the purchase from Spilka and a percentage of the prices charged on his bogus and fictitious invoices.

Appellant challenges (1) the admission of evidence of other crimes, (2) evidence of overt acts barred by limitations, (3) the failure of the Government to inform defendant that a Government witness was to be indicted for perjury, and (4) the sufficiency of the evidence. We find no error and affirm the convictions.

As part of the Government's case, David Herndon, a salesman for Central Lumber Enterprise, a broker of lumber and culvert, testified that at the direction of his employer he delivered to Scott an envelope containing a hundred dollar bill, following which Scott left his office and obtained for Herndon a warrant in payment of an invoice due Central Lumber Enterprise for culvert which Scott had purchased for Conway County. Herndon specifically testified that the cash payment was not a condition of his getting the warrant. There was no evidence as to the purpose or reason the cash payment was given to Scott.

Based primarily on this single equivocal payment by Herndon, appellant argues at length that the court improperly admitted evidence of "other crimes." We have no doubt that the Government had hoped Herndon would testify to a kickback scheme similar to the one with Spilka alleged in the indictment as bearing on the issue of intent. However, absent testimony by Herndon or any one else of an understanding or agreement, express or implied, that the money was to be paid in return for purchasing merchandise from Central Lumber Enterprise, the testimony falls far short of constituting evidence of another crime. We note that immediately before Herndon testified, and again at the conclusion of his direct testimony, the court cautioned the jury that Herndon's testimony should not be considered on the issue of Scott's guilt or innocence. ² At worst, the evidence was irrelevant, but not prejudicially so.

Appellant further argues that evidence of kickbacks which had been alleged as overt acts in the conspiracy count should not have been admitted, on the theory that prosecution thereon as substantive offenses would be barred by limitations, and that this "other crimes evidence" is wholly dissimilar to the bogus and padded invoice crimes charged in the substantive counts.

Count I of the indictment, supported by the evidence, charged a continuing conspiracy between Scott and Spilka commencing in February, 1973, and continuing to the end of 1976 to devise a scheme to obtain money by false pretenses from Conway County and to defraud Conway County and its citizens by depriving them of their right to have the county's business conducted honestly and impartially and free of favoritism and corruption. The fact that a number of the overt acts performed in furtherance of the conspiracy were committed beyond the statute of limitations does not preclude the admission in evidence of such acts to show the nature of the scheme and Scott's intent when the later use of the mails occurred. Cf. U.S. v. Ashdown, 509 F.2d 793, 798 (5th Cir. 1975). And see U.S. v. Andreas, 458 F.2d 491 (8th Cir. 1972).

Appellant argues that inasmuch as he denied taking the bribes, there was no genuine issue of intent and knowledge, thus (so he contends) distinguishing this case from authorities cited by the Government ³ in which the defendant admitted the act of taking money or property but denied fraudulent intent. We note, however, that in U.S. v. Adcock, 558 F.2d 397 (8th Cir. 1977), the defendant denied taking any money, but similar acts of evidence was held properly admitted to establish intent or a possible scheme or plan.

Appellant's reliance on U.S. v. O'Connor, 580 F.2d 38 (2nd Cir. 1978) is misplaced. That case involved the prosecution of a federal official for taking bribes from certain packing plants in connection with the performance of his official duties as a meat inspector. He was not charged with mail fraud or conspiracy or a scheme to defraud the Government. The defendant denied taking any bribes. The Second Circuit held that under the circumstances of that case the district court erred in permitting the introduction of other crimes evidence to the effect that the defendant had received regular weekly payments from the owners of other, unrelated, packing plants. The Court commented that the evidence was prejudicial in that it painted the picture of the defendant as a person who frequently committed crimes and distorted the emphasis at trial from the specific crimes covered by the indictment to those not so charged.

No comparable situation is here present. Not only was the evidence of the overt acts relevant in the proof of the conspiracy and scheme alleged in the indictment, but it bears upon appellant's intent and knowledge. U.S. v. Adcock, supra.

What appellant overlooks is that although he denied receiving kickbacks or other payments (per se, state and not federal offenses), he did not deny that he had approved for payment the warrants in payment of the invoices in question, the mailing of which constituted the overt acts. Thus, the intent with which Scott acted in approving the warrants for payment and his knowledge of the fraudulent nature of the invoices were very much in issue.

Appellant further contends that the evidence was insufficient to establish the use of the mails. We do not agree. Spilka testified that he received all of the twenty warrants alleged in the indictment through the mails, and that each of them was mailed from Morrilton, Arkansas to Spilka's post office box in Germantown, Tennessee. This was in accordance with Spilka's normal business practice. He would regularly pick up his mail at the box and then deposit all the checks and warrants therein at his bank in Memphis (several hundred miles from Morrilton, the county seat of Conway County).

In part, the County Clerk's records expressly corroborated Spilka. These showed that several of the warrants had been mailed to Spilka. As for the others, the records were silent as to whether the warrants had been mailed or picked up. However, it is clear that each of them was deposited in Spilka's bank account.

There is no evidence contradictory of Spilka's testimony as to the mailings. Appellant's attack on the mailings is a general blunderbuss one, without differentiating between the three counts of the indictment, on each of which he was convicted and sentenced. On cross-examination, Spilka testified:

"A To the best of my recollection, every check I ever got from Conway County, to my knowledge, was sent through the mails.

Q But you don't know if they had been through the mails?

A Well, they appeared at my Post...