U.S. v. Vincent

• Decision Date: 25 June 1981
• Docket Number: 80-3868,Nos. 80-3568,s. 80-3568
• Citation: 648 F.2d 1046
• Parties: 8 Fed. R. Evid. Serv. 824 UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. VINCENT, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1046

648 F.2d 1046

8 Fed. R. Evid. Serv. 824

UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. VINCENT, Defendant-Appellant.

Nos. 80-3568, 80-3868.

United States Court of Appeals, Fifth Circuit.

Unit A

June 25, 1981.

Arthur A. Lemann, III, New Orleans, La., for defendant-appellant.

Robert J. Boitmann, Morris W. Reed, Michael Schatzow, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

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

Before SKELTON ^*, Senior Judge and RUBIN and REAVLEY, Circuit judges.

REAVLEY, Circuit Judge:

Daniel P. Vincent was convicted by a jury of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and acquitted of twelve counts of substantive theft offenses and two counts of perjury. He now appeals the conspiracy conviction, complaining of five errors committed by the district court: (1) insufficiency of the evidence to sustain the conviction; (2) improper jury coercion through the Allen charge; (3) failure to instruct the jury of a lesser included offense; (4) restriction of defense counsel's jury argument; and (5) refusal to admit certain evidence. We affirm the action taken by the district court in all respects.

Sufficiency of the Evidence

In reviewing the sufficiency of evidence to support Vincent's conspiracy conviction, we must view the evidence in the light most favorable to the government, and determine whether reasonable minds could conclude that the evidence is consistent with any reasonable hypothesis of Vincent's innocence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Suarez, 608 F.2d 584 (5th Cir. 1979). After a thorough review of the record, we find that Vincent's conspiracy conviction was supported by the evidence.

Dan Vincent was the executive director of Total Community Action, Inc. ("TCA") from 1969 to 1978. TCA is a local community action agency that receives government funds and administers various poverty programs in New Orleans. Vincent was also president of the Economic Development Unit ("EDU"), a private non-profit corporation established in 1976 with TCA funds. The EDU was approved by the Community Services Administration ("CSA"), the federal agency from which TCA received its basic funding. The EDU was to use TCA funds in those free enterprise endeavors, such as capital investments, in which TCA was prohibited from participating by federal regulations. The initial EDU project was the purchase of a building, which it then leased to TCA at a substantial savings in rent costs.

In 1975, TCA awarded M&M Janitorial Services ("M&M") the janitorial contract for the building that TCA then occupied. The "president" of M&M was Warren Washington, a friend of Vincent's, whose only role in the corporation was to circumvent government regulations against conflicts of interest. Arthur Morgan and Spencer Washington, both TCA employees, actually operated M&M. There was evidence that M&M funds were used to pay for furniture bought for Vincent's office, to make a $507.36 payment on a loan owed by Vincent's father, to purchase an automobile for Vincent's "lady friend's" use, and to make a $3,750.00 cash payment to Vincent himself.

There was also evidence of the misapplication of EDU funds. EDU funds were used to install a fireplace in Vincent's office at the EDU building. Also, $40,000 of EDU funds provided by a CSA grant was deposited into the TCA credit union. From these funds, loans were made to various TCA employees to purchase cars, including a loan back to EDU to purchase a Lincoln Versailles for Dan Vincent's use. EDU funds were also used to make a $10,000 loan to Foliage, Inc., and a $15,000 loan to A&E Auto Sales, without prior CSA approval. Much of the proceeds of these loans were used to pay off earlier bank loans personally guaranteed by Vincent.

Spencer Washington, formerly the manager of the TCA purchasing department, incorporated WASCO, Inc. as a wholesale supplier of virtually anything TCA and EDU might need. EDU was an incorporator of WASCO and was an intended shareholder, although no shares were ever issued.

WASCO received the janitorial contract formerly held by M&M (M&M ceased to exist and its remaining assets were transferred to WASCO), plus a management services contract for all EDU property. WASCO received a $10,000 advance from EDU on the contracts and also used EDU office space without charge. WASCO purchased a building, which housed one of TCA's projects, with a loan personally guaranteed by Vincent and increased TCA's rent by $200.00 a month.

Perhaps the most flagrant of the WASCO transactions was the purchase of office supplies. TCA employees would order office supplies from the regular suppliers in the name of TCA. A requisition form would be drawn up naming WASCO as the vendor, however, at a price usually ten percent higher than that of the original supplier. TCA would pay WASCO the inflated price and WASCO would pay the original supplier, pocketing the ten percent mark-up. Each of these purchase orders was approved by Vincent's office. The total amount of mark-up received by WASCO in these transactions was $2,487.23.

There was also evidence of unauthorized use of TCA employees during regular working hours.

From the evidence presented at trial and briefly outlined above, the jury could reasonably conclude that Dan Vincent actively participated in a conspiracy with Spencer Washington, Arthur Morgan and others to defraud the United States.

The Allen Charge

Following a month-long trial and almost two days of deliberations and sequestration, the jury sent the court a note, which read,

"There are some counts that the jury cannot come to a unanimous decision on. We have gone over the counts numerous times to no avail."

After receiving the note, the court decided, over defendant's objection, to give the jury the Allen charge. The charge given was identical to the one approved by this court in United States v. Fossler, 597 F.2d 478, 483-84 n.6 (5th Cir. 1979).

Vincent does not complain of the wording of the charge, but argues that, under the circumstances, the charge was unduly coercive. Vincent calls to our attention the fact, which appears on the record, that one juror was seen weeping after the charge was given. He also refers to the affidavits of Vincent and his mother-in-law relating their post-verdict conversations with a juror. The juror allegedly told them that she and other jurors believed Vincent to be innocent, but felt pressured to acquiesce in the verdict by the Allen charge. The trial judge interviewed the juror in camera, and after satisfying himself that no external factors influenced the jury's verdict, refused to grant Vincent's motion for a hearing on the issue.

This court has found the Allen charge not to be unduly coercive in a situation very similar to this one. In United States v. Zicree, 605 F.2d 1381, 1390 (5th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980), after an eight week trial and two and a half days of deliberation, the jury reported that they had reached a verdict as to all defendants on some counts, but had reached no verdict on about one-half of the 189 counts of the indictment. The trial judge gave the Allen charge, which this court approved. Thus, Vincent's argument that it is inappropriate to give the Allen charge to a jury that has shown an ability to reach unanimity, although not as to all counts, must fail.

Vincent's argument that the trial judge erred in failing to hold a hearing on the issue of the Allen charge's coercive effect on the jury's deliberations must also fail.

Clearly, the mental processes of the jury in its deliberations are not subject to judicial scrutiny. United States v. Duzac, 622 F.2d 911, 913-14 (5th Cir. 1980); United States v. D'Angelo, 598 F.2d 1002, 1004 (5th Cir. 1979). Fed.R.Evid. 606(b) forbids a juror from testifying "as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or another juror's mind or emotions as influencing him to assent or dissent from the verdict or concerning his mental processes in connection therewith." The rule does permit a juror to "testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly...