United States v. Addington, No. 71-1073.

• Decision Date: 08 January 1973
• Docket Number: No. 71-1073.
• Citation: 471 F.2d 560
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William H. ADDINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

471 F.2d 560 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. William H. ADDINGTON, Defendant-Appellant.

No. 71-1073.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 13, 1971.

Decided January 8, 1973.

COPYRIGHT MATERIAL OMITTED

Robert D. Hecht, of Scott, Quinlan & Hecht, Topeka, Kan., for appellant.

E. Edward Johnson, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., District of Kansas, Topeka, Kan., on brief), for appellee.

Before PHILLIPS, HOLLOWAY and McWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appellant William H. Addington was found guilty on 14 counts of an indictment charging various criminal acts in connection with the handling of grain belonging to Commodity Credit Corporation (CCC). Seven counts alleged conversion of Government grain (15 U.S.C.A. 714m(c)). In 4 counts he was alleged to have made false statements to a Government agency concerning quantities of grain in storage (15 U.S.C.A. 714m(a)). The remaining counts charge the making of false claims to the Government for storage charges (18 U. S.C.A. § 287). Each count also alleged that Addington aided and abetted the commission of the offenses (18 U.S.C.A. § 2). Addington appeals his conviction and the five-year concurrent sentences imposed on all counts. On appeal he argues five propositions:

(1) that the evidence was insufficient to support the convictions;

(2) that this prosecution was barred by collateral estoppel, former jeopardy and res judicata, and that he was entitled in presenting this defense to a transcript of an earlier trial resulting in an acquittal on similar charges;

(3) that it was error to deny his motion to quash the indictment and the warrant for lack of establishment of probable cause;

(4) that the trial court erred in denying him a transcript of the grand jury proceedings; and

(5) that the court erred in refusing to permit his attorney to voir dire the prospective jurors.

We conclude that no ground for reversal is shown and affirm.

1. Sufficiency of the evidence

First we will address the issue of the sufficiency of the evidence since this discussion will present the essential factual circumstances. In focusing on this issue we note that it is not argued that there was insufficient proof on which the jury could have concluded that the invoices were false and that there were shortages of grain at the Hutchinson, Kansas, elevator which is involved. Instead the attack seriously questions whether Addington had the requisite guilty knowledge in connection with the shortages and the conversions charged and whether he knowingly was involved in making the related statements and claims alleged to be false.¹

In determining whether the evidence is sufficient to support a jury verdict of guilty we must view the proof in the light most favorable to the Government to ascertain if there is sufficient substantial evidence, direct and circumstantial, together with the reasonable inferences therefrom, from which the jury might find the defendant guilty beyond a reasonable doubt. United States v. Butler, 446 F.2d 975 (10th Cir.). So viewing the record, the proof favorable to the Government tended to show the following facts.

Addington was a resident of Wichita, Kansas, at the time of trial. He had for several years owned extensive business interests. He was the sole stockholder of Addington Grain Company, Inc. (Addington, Inc.), which owned and operated a grain elevator at Hutchinson. This case arises from transactions involving that elevator.

In addition Addington operated elevators in Elkhart, Kansas, and Tucumcari, New Mexico, as the sole proprietor of an unincorporated business, Addington Grain Company. He also owned a ranch and motel in Nevada, operated another ranch in Wyoming which he leased, and had interests in two laundry and dry cleaning businesses in Wichita.

Addington formed a partnership with Robert Taggart and two other gentlemen by the name of Blosser, known as the AB&T Grain Company (AB&T). This partnership was formed to engage in the grain storage business and a grain elevator and office at Topeka belonged to it. In about October of 1959 William F. Allison was employed to manage this operation. At about that time it was also agreed that AB&T, through Allison, would also manage Addington, Inc., which paid a fee to AB&T for this management service. Both the Addington, Inc., elevator at Hutchinson and the AB&T elevator at Topeka began to receive grain for storage in late 1959 or early 1960. Both companies later began engaging in cash grain transactions.

Allison maintained an office in Topeka with a staff of two or three assistants to carry out these management functions. The office personnel were actually listed as employees of AB&T and were carried on its payroll, although they also spent considerable time on Addington, Inc., business. During this time Addington also maintained an office in Wichita, staffed mainly by an accountant and a secretary. The books and records of cash flow for all of Addington's business interests were maintained at this Wichita office, except for the business interest of Addington in AB&T and the Nevada motel.

Within about eight months to a year after the commencement of the AB&T operations in late 1959, Addington sold his interests in that venture to his other partners. However, Allison continued with the AB&T arrangement to manage the Hutchinson elevator operations. Although AB&T discharged Allison in the spring of 1965, he continued as manager of the Hutchinson grain elevator of Addington, Inc., until around October, 1965.

During the years of its operation the Hutchinson elevator was used extensively for storage of CCC grain. Periodically Addington, Inc., was required to submit invoices to the Government certifying the amount of CCC grain stored in the Hutchinson elevator. The invoice forms were furnished by the Government, stating the amount of CCC grain which the elevator was supposed to contain. After submission of each invoice, payment of warehouse storage charges based on the amount of grain stored was made by the Government to Addington, Inc., or its assignee. Eventually CCC removed all of its wheat out of the Hutchinson elevator. However, when the last car was shipped out in May, 1966, the Government records showed a shortage of 410,000 bushels of wheat.

The offenses charged were alleged to have occurred between about December 18, 1964, and July 1, 1965. The theory of the Government's case was that through this period there was insufficient grain stored at the Hutchinson elevator to cover the amount placed there by CCC; that the periodic invoices certified to the Government were false; that they constituted a false statement thereon and a false claim to the Government; and that in view of the deficit position of the grain stored at the Hutchinson elevator, the sales of Addington, Inc., constituted conversion of Government grain.

By detailed testimony of accountants, employees of various companies, railroad employees and state and federal inspectors the Government sought to account for each sale, purchase and shipment of grain to or from the Hutchinson elevator. As stated earlier, Addington does not contend that the proof was lacking to show that there were shortages and therefore inaccurate invoices for the grain stored at Hutchinson. Addington's contention was that Allison knowingly carried on the unlawful transactions and made the false invoices, but this was all without the knowledge of Addington.

Allison was originally a co-defendant charged in the indictment with Addington. However, prior to trial he pleaded guilty to 6 counts and was not prosecuted at the trial with Addington on the remaining counts.² At trial Allison testified for the Government.

Allison stated that at all times, and specifically from December, 1964, through June, 1965, he advised Addington of the grain shortages; that he was instructed by Addington to sell grain during this time; and that he was told by Addington to issue warehouse receipts on grain even though the elevator was in a short position.

Allison said he had pleaded guilty to one conversion count in the indictment because he had sold grain at one time when he knew that the elevator was in short position but that he had done so at Addington's instance. He said he never made an independent decision to sell grain at a time when the house was in a short position. He said also that it was common practice not to post load-out sheets on time, and that this was in order to keep the books from reflecting the grain shortages. He was instructed to do so by Addington.

Allison said he met with Addington in January of 1965 and discussed the fact that the books showed an extra 276,584.50 bushels of company-owned grain backed up through false entries. Allison also identified numerous memos sent to Addington and his accountant at Wichita in 1963 advising of the inventory position of the elevator, some of which reflected that the house was in a short position by over 200,000 bushels. Letters were identified that Allison said he sent Addington from 1961 through 1963, advising of shortages at the elevator, and a letter from Addington instructing him to ship out grain.

Allison identified a letter of resignation submitted in February, 1965, but it was shown that his work on the Hutchinson operation did not entirely stop until October, 1965. He testified that after this letter the decisions to negotiate on grain transactions were made by Addington. He said also that an "advice" stating the amount of each CCC periodic invoice was mailed to Addington's Wichita office as well as Allison's office in Topeka. The "advice" was a notice from the Denver United States National Bank, which had been assigned proceeds of storage charges due Addington, Inc., in May, 1963. Allison said that Addington was notified of each quarterly invoice received from the CCC, although the invoices were not sent to Wichita....