United States v. East
Decision Date | 16 September 1969 |
Docket Number | No. 23435.,23435. |
Citation | 416 F.2d 351 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. William Tazwell EAST, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Donald L. Ostrem (argued), and Leo Graybill, Jr., of Graybill, Graybill & Ostrem, Great Falls, Mont., for appellant.
Donald C. Robinson (argued), Asst. U. S. Atty., Moody Brickett, U. S. Atty., Robert O'Leary, Asst. U. S. Atty., Butte, Mont., for appellee.
Before JERTBERG, MERRILL and ELY, Circuit Judges.
Following trial to a jury, appellant was convicted on both counts of a two count indictment, each count charging a violation of 18 U.S.C. § 1001.1 He was sentenced to the custody of the Attorney General for a term of two years on each count, the sentences to run concurrently. Execution of the sentences, as to imprisonment, was suspended and the appellant was placed on probation for a term of two years under specified terms and conditions.
Appellant was, and for a number of years had been, a civilian employee of the United States Air Force whose permanent duty station was Mayville, North Dakota. In early October, 1966, his permanent duty station was changed to Conrad, Montana. This change necessitated the transportation of appellant, his family and his household goods from Mayville to Great Falls, Montana. Appellant accomplished this transfer between October 17 and October 25, 1966. Expenses to be incurred by appellant in accomplishing this change of duty station were reimbursable under United States Air Force Joint Travel Regulations.
In March 1967, appellant submitted a travel voucher to the Accounting and Finance Branch of the Air Force at Great Falls, Montana, in which he claimed:
(a) reimbursable expenses in the amount of $296.00 for temporary quarters in Great Falls, Montana, which consisted of $90.00 for rent of temporary quarters, $186.00 for meals, $10.00 for laundry and drycleaning, and $10.00 for tips incident to meals; and
(b) reimbursable expenses for the cost of transporting 8060 pounds of household goods from Mayville, North Dakota, to Great Falls, Montana. The amount of this claim does not appear in the record.
As part of the travel voucher appellant submitted three substantiating documents which formed the basis of the indictment.
The basis of the first count of the indictment is a receipt dated October 29, 1966, for rental paid by appellant to one, Kelly, for basement rooms in Great Falls, Montana. This receipt represents that appellant had incurred expenses of $90.00 for rental of rooms from October 18 to October 28, 1966.
The basis of the second count are two weigh slips dated October 15, 1966, issued by a grain elevator company in Mayville North Dakota. These weigh slips, attached as a part of the travel voucher, purported to represent the transportation in a pick-up truck and trailerhouse of 8060 pounds of household goods from Mayville, North Dakota, to Great Falls, Montana.
There is no dispute in the record that the receipt for room rent in the amount of $90.00 attached to the travel voucher was false and fictitious, and that no rooms were rented by appellant from Kelly, and appellant paid no rental to Kelly. In fact, there is no dispute in the record that appellant occupied quarters at the New Villa Motel in Great Falls, Montana, for seven nights during the period October 14 through October 25, inclusive, 1966, and paid rental in the amount of $56.00. It is also without dispute that the weigh slips of household goods, attached to the voucher, were false and fictitious. The goods had never been weighed by the elevator company at Mayville, but the weigh slips had been issued in February, 1967, at the request of appellant who asked that they be back-dated and show net weights of 2040 pounds and 6020 pounds, respectively. In fact, there is no dispute that appellant's household furniture was transported in his mobile home from Mayville, North Dakota, to Great Falls, Montana, by a professional mover.
In his specification of errors, appellant contends that the district court erred:
We consider first, and together, appellant's contentions under 1) and 2) above that the indictment fails to state an offense under 18 U.S.C. § 1001, and that the Government's proof was insufficient to sustain the conviction. Both contentions are grounded on the argument that the false statements contained in the spurious room rental receipt and weigh slips attached to the voucher presented to the Air Force for reimbursement of expenses, were not material to a matter within the jurisdiction of the Air Force.
The law is well-settled in this Circuit that materiality of the falsification is an essential element of the offenses defined in 18 U.S.C. § 1001. Brandow v. United States, 268 F.2d 559 (9th Cir. 1959); Paritem Singh Poonian v. United States, 294 F.2d 74 (9th Cir. 1961). See also Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960).
The courts appear to be in general agreement that the test for determining the materiality of the falsification is whether the falsification is calculated to induce action or reliance by an agency of the United States, — is it one that could affect or influence the exercise of governmental functions, — does it have a natural tendency to influence or is it capable of influencing agency decision? Freidus v. United States, 96 U.S.App.D.C. 133, 223 F.2d 598, 601 (1955); Weinstock v. United States, 97 U.S.App.D.C. 365, 231 F.2d 699, 701 (1956); United States v. Quirk, 167 F.Supp. 462 at 464 (E.D.Pa.) aff'd 266 F.2d 26 (3d Cir. 1959); Brandow v. United States, supra; Gonzales v. United States, supra, 286 F.2d at 122.
Applying the test for materiality to this case, we have no difficulty in holding that the falsifications appearing in the indictment, and in the Government's proof, were material to a matter within the jurisdiction of the Air Force. The district judge did not err in refusing to dismiss the indictment.
We now consider appellant's contention under 3) above. Appellant complains the district court erred...
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