United States v. Bass

• Decision Date: 11 January 1973
• Docket Number: No. 71-1733,71-1734.,71-1733
• Citation: 472 F.2d 207
• Parties: The UNITED STATES, Appellee, v. Harry C. BASS, Jr., Appellant. The UNITED STATES, Appellee, v. SELB MANUFACTURING CO., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

472 F.2d 207 (1973)

The UNITED STATES, Appellee, v. Harry C. BASS, Jr., Appellant.

The UNITED STATES, Appellee, v. SELB MANUFACTURING CO., Appellant.

Nos. 71-1733, 71-1734.

United States Court of Appeals, Eighth Circuit.

Submitted September 11, 1972.

Decided January 11, 1973.

Rehearing and Rehearing Denied February 21, 1973.

COPYRIGHT MATERIAL OMITTED

Robert V. Light, Little Rock, Ark., for appellants.

Sidney H. McCollum, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before BRIGHT and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge.^*

Rehearing and Rehearing En Banc Denied February 21, 1973.

STEPHENSON, Circuit Judge.

This appeal from a jury conviction charges trial court error in (1) denying discovery of documents and other evidence; (2) overruling a motion to dismiss the substantive charge because of failure to state a violation of Title 18 U.S.C. § 1001; (3) overruling the motion for judgment of acquittal on the same Count because of insufficiency of the evidence; (4) admitting certain evidence; (5) denying a motion for mistrial based on the alleged misconduct of the prosecuting attorney during closing arguments; and (6) assuming advocacy in the charge to the jury. We discuss the alleged errors seriatum. We affirm the conviction of both defendants.

Count I charged the defendant Harry C. Bass, Jr., and his solely owned corporation, defendant Selb Manufacturing Company (sub-contractor) and six other individual defendants,¹ with conspiring to defraud the United States by fraudulent statements and representations for the purpose of passing off on General Dynamics (general contractor), and ultimately the Air Force, unacceptable component parts for the F-111 aircraft as acceptable parts in violation of Title 18 U.S.C. § 371. Selb held a sub-contract with General Dynamics to manufacture pursuant to purchase orders certain component parts. Count XVI charged Bass and three other individual defendants with making false and fraudulent representations to the Air Force by fraudulent misapplication of serial numbers on aircraft parts and falsely representing that the aircraft parts met required specifications when they knew the parts were unacceptable.

In the fall of 1966, Selb and its affiliates, all owned by Bass, obtained a subcontract with General Dynamics to manufacture pursuant to purchase orders certain airplane parts to be included in the F-111 aircraft which General Dynamics was to build for the United States Air Force. Several purchase orders bearing dates between October 1966 and March 1967, and amendments thereto, were issued and executed. By the fall of 1967 Selb was behind in its delivery of parts and was experiencing difficulty in machining parts to blue print tolerances. The Government contends that it was at this time that there began a scheme and plan to defraud General Dynamics and ultimately the Air Force by sending them parts which were deficient and did not meet specifications without informing them of such deficiencies and in fact falsely representing that the parts were good and acceptable. The indictment in substance charged that the named defendants and other co-conspirators conspired to defraud the Government (1) by sending in deficient parts without indicating the parts were defective on Suppliers Inspection Rejection Reports (SIRs) as required by the contract; (2) by removing serial numbers from defective parts and replacing them with serial numbers of good or acceptable parts; and (3) that in furtherance of the scheme officers and employees of Selb gave to employees of General Dynamics certain gratuities for the purpose of influencing and inducing favorable action as to the acceptance or rejection of parts. The trial extended over a two-week period. Some 28 witnesses testified and over 100 exhibits were received in evidence.

Discovery

Grand Jury Testimony. Timely motions were filed in behalf of both defendants pursuant to Rules 6(e) and 16, Fed.R.Crim.Proc. for permission to inspect and copy the testimony of all witnesses who appeared before the grand jury, and, in the alternative, such permission with respect to the testimony of the officials and employees of General Dynamics, such testimony of Selb's officers and employees and such testimony of the witnesses the Government intended to call at trial. The Government resisted upon the grounds that no particularized need was shown, and further indicated it would (and it did) furnish copies of transcripts of the testimony of each witness it called to testify at the trial. The trial court denied defendants' motions upon the ground there was no showing of a substantial or particularized need for the testimony requested, with the reservation that if during the course of the trial a particularized need developed, upon renewed motion, the court would in all probability grant the motion.²

We are satisfied that the trial court's ruling was correct. Dennis v. United States, 384 U.S. 855, 868-875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). It was in accord with the rule well established in this Circuit. National Dairy Products Corp. v. United States, 384 F.2d 457 (CA8 1967); United States v. Cole, 449 F.2d 194, 198 (CA8 1971); United States v. Harflinger, 436 F.2d 928, 935 (CA8 1970).

Pretrial Conferences. Defendants complain because they were excluded from pretrial conferences conducted by the Court in connection with the separate trials of other defendants. This complaint is so devoid of merit that it requires little comment. Initially a pretrial conference was held by the trial judge on the numerous motions filed by all the separate defendants, i. e., to dismiss, for severance, and general discovery. The trial judge then indicated that motions for separate trial would be granted and that additional pretrial conferences would be held with the individual defendants shortly before their respective trials. Conference was being conducted for the purpose of arranging the mechanics of the separate trials of those concerned. There was no need for including representatives of defendants whose trials were not affected. The instant defendants and their counsel were not excluded from any pretrial conference concerning their trial. No agreements or stipulations were entered into in their absence. See Rule 17.1 Fed.R.Crim.Proc. No prejudice has been shown. The pretrial conferences were conducted in conformance with the principles of sound judicial administration. Defendants complaints are completely devoid of merit.³

Prime contract. Defendants caused a subpoena duces tecum to be served on a representative of General Dynamics to produce the prime contract between the Air Force and General Dynamics. The Government moved to quash upon the grounds that classified portions of the prime contract were irrelevant to any issue in the case. The Government agreed to make available and did make available all portions of the prime contract regardless of relevancy, except for certain specifications for the manufacture and performance of component parts of the aircraft which were classified as "secret" or "confidential" because they involved military secrets, and which, the Government also claimed, were in no way connected to the parts involved in the case on trial. The Government offered the testimony of the senior engineer for the Air Force at General Dynamics to establish that the documents in question were not relevant to any issues involved in the trial. The Government also offered evidence that Selb and its affiliates did not have security clearances and therefore could not have worked on classified portions of the contract.

The trial judge in granting the Government's motion to quash noted that the same issue had been raised in a pre-trial proceeding in connection with the trial of two other defendants named in the same indictment and that the judge had examined the classified portions of the contract in camera and did not find anything exculpatory or otherwise connected with the Selb work or relevant to the issues on trial. Defendants contend the information in question should have been disclosed, United States v. Andolscheck, 142 F.2d 503 (CA2 1944), and that the in camera inspection by the Court was inadequate to protect their right to determine if the evidence was relevant and material to the issues in dispute.⁴ Jencks v. United States, 353 U.S. 657, 668-672, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); Alderman v. United States, 394 U.S. 165, 181-182, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). However, we are satisfied from a review of the evidence that the possible evidentiary value of these documents was clearly negligible and the trial court did not abuse its discretion in quashing the subpoena. See United States v. Schneiderman, 106 F.Supp. 731, 735-739 (S.D.Cal.1952). The added precaution taken by the trial court in making an in camera inspection of the documents lends added assurance that the motion to quash was proper. Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); see also, Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Boeing Airplane Co. v. Coggeshall, 108 U.S.App.D.C. 106, 280 F.2d 654, 662 (1960).

Kersey Report. Defendants complain that the trial court erred in refusing to require the Government to produce an Air Force investigation report concerning quality control at General Dynamics Ft. Worth plant. It came to be called the Kersey Report. The Government objected upon the grounds that the material contained therein was immaterial to any issue in the case; that it was a separate investigation of other matters; that there was no mention in the report of Selb nor any mention of unauthorized welding or false documents; that it did contain statements important only to inner Air Force Planning and actions. The report was submitted to the Court for an in camera inspection with the request by the Government that if the Court determined that the report should be made...