United States v. Dalton, 71-1934.

• Decision Date: 11 December 1972
• Docket Number: No. 71-1934.,71-1934.
• Citation: 465 F.2d 32
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Columbus DALTON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 32 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. John Columbus DALTON, Jr., Defendant-Appellant.

No. 71-1934.

United States Court of Appeals, Fifth Circuit.

July 14, 1972.

Rehearing and Rehearing Denied August 30, 1972.

Certiorari Denied December 11, 1972.

John J. C. O'Shea, Lubbock, Tex., for defendant-appellant.

Eldon B. Mahon, U. S. Atty., Charles D. Cabaniss, W. Andrew Barr, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Before BELL, GOLDBERG and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied August 30, 1972.

Certiorari Denied December 11, 1972. See 93 S.Ct. 570.

BELL, Circuit Judge:

This appeal is from a conviction on each of four counts of a five count indictment charging appellant and others with the submission of false claims to the Veterans Administration in violation of 18 U.S.C.A. § 287. We affirm.

Appellant was president and chief executive officer of Greenville Aviation, Inc., Greenville, Texas. Also charged in the indictment were Jerry Stafford, an employee of Greenville, Nelson R. Cicchitto, a pilot instructor at Greenville, Joe Bailey Lee, who was enrolled as a student pilot at Greenville but who never received instruction there, and Greenville Aviation, Inc. Cicchitto testified for the government and the charges against him were dismissed. Stafford pleaded guilty to one count and also testified for the government. Lee pleaded guilty to a misdemeanor and also testified for the government. Greenville Aviation was found guilty on four counts and fined $10,000 on each count.

There are nine assignments of error. Four of these regard challenges to the indictment. The remainder concern evidentiary rulings by the court and claims of prejudicial conduct by the court and the government prosecutor.

I.

Part of the business of Greenville Aviation (Greenville) was to operate a Veterans Administration approved pilot training program. The program offered qualified veterans with a private pilots license or 30 hours of flying experience a subsidy of 90 per cent of the cost of additional flight training. At the completion of a quarter's instruction or at the termination of the entire course, the flight school billed the Veterans Administration for a particular student stating the hours of training received and the cost thereof, all as required by the Veterans Administration. The bill was submitted on a "Quarterly Certificate of Flight Training." Both the flight school and the student were required to certify to the Veterans Administration that the entries on the certificate were true and correct. The certificate, on receipt, was reviewed by the Veterans Administration. Payment was made directly to the student who in turn was to pay the flight school.

It was for his operations under this program that appellant was charged with submitting false claims. These claims were submitted in an attempt to collect for instruction ostensibly given to four different student pilots. The total amount so claimed was $11,530.55.

The government in presenting its case first established by a comparison of the Quarterly Certificates, the daily flight time logs of the aircraft purportedly used for the claimed instruction, and the training tickets signed by the student and his instructor after every lesson, that the hours of instruction claimed could not possibly have been given. Having shown that the Quarterly Certificates were false, the government next presented evidence to establish that appellant was the moving force behind the falsifications. Pilot instructor Dullea testified that Dalton told him that he had "purchased" student Bieber's "GI Bill", and that he would pay Dullea $200 to sign student tickets showing that Bieber had received instruction which was not in fact given.

Pilot instructor Cicchitto testified as to having signed false student tickets for eight different students at the request of Dalton, and that he was paid by Dalton for doing so. Cicchitto also testified that Dalton asked him to falsify his own pilot log book to correspond to the false student tickets.

Jerry Stafford testified that he falsified student tickets and Quarterly Certificates at Dalton's request. One such certificate was signed by Stafford as student and by Dalton for Greenville. Other false claims prepared by Stafford at Dalton's direction were for the students Joe Bailey Lee and John R. Stafford.

Government witness Donald Russell, at one time an employee of Greenville, testified to having taken flight training from Greenville at a time when he was not eligible for Veterans Administration benefits. Russell then falsely stated his qualifications and received Veterans Administration approval for pilot training. Thereafter Dalton and Russell computed the dollar value of the time Russell had flown and made up a false Quarterly Certificate to the Veterans Administration for that amount.

Several of the witnesses also testified that after the investigation of Greenville had begun, Dalton asked them to meet with his attorney. At these meetings, the witnesses signed affidavits stating that their student flight records were accurate and that Dalton was a busy businessman who did not attend to the details of operating Greenville Aviation. These witnesses thereafter repudiated their affidavits and disclosed that they had signed only to help Dalton or on the assurances of Dalton and his attorney that if they stuck together nothing would come of the investigation.

Dalton's defense consisted of attacks on the accuracy of the company records, attempts to show that Dalton had no day-to-day control of Greenville, and efforts to show that his employees were solely responsible for the false claims and were trying to place responsibility on him (termed an interior conspiracy).

II.

Turning to appellant's attacks on the indictment, he first contends that the four counts pertaining to him also charged another individual and a corporation without alleging that the three individuals participated together or acted in concert, or setting forth a common scheme, design and intent to commit the primary offense alleged in each count. It appears that appellant's position is that the indictment was duplicitous as charging more than one offense in the same count. We, however, do not share this view. Rule 8(b), F.R.Crim.P.,¹ provides for the indictment of multiple defendants in the same indictment if they are alleged to have participated in the same act or transaction. The word "participate" is not used in the language of the indictment but the charge is in such terms as to allege participation in the same act or transaction and this was the proof adduced on the trial. Cf. Brown v. United States, 5 Cir., 1955, 228 F.2d 286, 287. This assignment of error is without merit.

Appellant next contends that the grand jury which returned the indictment was invalid because the names of the jurors were not publicly drawn as required by 28 U.S.C.A. § 1864, and the jury selection plan for the Northern District of Texas. There is no merit in this contention. The selection took place in one of the rooms in the clerk's office with only clerk personnel in attendance. However, it was a room which was open to the public. This was not an invalid procedure. Cf. Wilson v. United...