United States v. Godel, 10140.

• Decision Date: 20 May 1966
• Docket Number: No. 10140.,10140.
• Citation: 361 F.2d 21
• Parties: UNITED STATES of America, Appellee, v. William Hermann GODEL, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

361 F.2d 21 (1966)

UNITED STATES of America, Appellee, v. William Hermann GODEL, Appellant.

No. 10140.

United States Court of Appeals Fourth Circuit.

Argued January 7, 1966.

Decided May 20, 1966.

E. Waller Dudley, Alexandria, Va., for appellant.

C. V. Spratley, Jr., U. S. Atty., and Philip R. Monahan, Atty., Dept. of Justice (Fred M. Vinson, Jr., Asst. Atty. Gen., on brief), for appellee.

Before SOBELOFF and BELL, Circuit Judges, and BUTLER, District Judge.

BUTLER, District Judge:

In this appeal William Hermann Godel challenges his conviction for conspiracy and filing a false statement, in violation of 18 U.S.C.A. § 371 and 18 U.S.C.A. § 1001, respectively. In substance, the government contends that Godel, a government employee assigned to the Pentagon, conspired¹ with his co-defendant (John Archibald Wylie), another Pentagon official, to appoint fiscal agents within the Department of Defense from whom Godel and his codefendant later unlawfully borrowed government funds, which they converted to their own use, and thereafter submitted false statements² in an effort to conceal the conversions.

Godel, tried with Wylie, was found guilty by a jury in Alexandria Division of the United States District Court for the Eastern District of Virginia. His motions for judgment of acquittal and for a new trial were both denied, and he was sentenced to five years in prison on each of the two counts, the sentences to run concurrently. He asks this court to set aside his conviction and enter a judgment of acquittal, or, in the alternative, grant him a new trial.

Godel lists eighteen assignments of error and concludes with a request that, if the conviction is sustained, this court either vacate or reduce the sentences, on the theory that the sentences imposed are unfairly harsh under the circumstances. We find no reversible error in the trial and deem ourselves without authority to alter the sentences imposed. The conviction and sentences are therefore affirmed.

In arriving at this conclusion, the court has considered Godel's assignments of error in the order in which they appear in his brief. For purpose of convenience we dispose of them in the same order here.

The record is replete with testimony and exhibits refuting Godel's contention that the evidence is insufficient to sustain a conviction on the conspiracy count. A conspiracy "need not be proved by direct evidence; a common purpose and plan may be inferred from a `development and collocation of circumstances'". Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), Harris v. United States, 283 F.2d 923 (4 Cir. 1960). The jury could reasonably infer from the facts and circumstances relating to the numerous transactions between Godel, Wylie, and the Class A Agents that the defendants acted with a mutual understanding as to the unlawful purpose to be accomplished, and that they cooperated and acted together in the accomplishment of that purpose.

As was said in Phelps v. United States, 160 F.2d 858, 867-868 (8 Cir. 1947):

"It is not for us, on an appeal from a conviction to weigh the conflicting facts, circumstances and inferences of the trial proceedings, but only to consider whether the evidence in its most favorable aspect to the Government is legally capable of allowing a jury to become persuaded of guilt."

Godel's contention that the evidence is insufficient to sustain a conviction on the false statement count is without merit. The government's evidence is to the effect that a $10,000 Treasury reimbursement check was issued to Godel and that he converted the money to his personal use rather than for "confidential" projects in Vietnam as Godel contended. The government's proof on this count is not so lacking as to cause this court to upset the jury finding as unsupported by the evidence. On the contrary, the evidence clearly supports the verdict.

Godel's motion for a severance was properly denied. Godel does not object to the joinder with Wylie on the conspiracy count; rather, he contends that the court should have granted a severance of the substantive counts. Severance is not a matter of right where two defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Rule 8(b), Fed.R.Crim.P. Here, Godel and Wylie are charged in the first count with conspiracy involving a series of acts relating to embezzlement of public money, filing false claims, and making false statements in matters affecting the government. Overt act No. 5 in the conspiracy count charges that on or about July 21, 1961, Godel submitted a written memorandum to the co-defendant Wylie (an official of the Department of Defense) that Godel's office had obligated $10,000 for certain confidential projects. Count 5 charges Godel with the substantive offense of making the same false statement on the same date as overt act No. 5. The indictment taken as a whole must be construed as charging the defendants with participation in the same acts or transactions even though Count 5 does not in terms charge participation by the defendant Wylie. United States v. Welsh, 15 F.R.D. 189 (D.C.D.C.1953). It is not required that all defendants be charged in each count. Rule 8(b), Fed. R.Crim.P., Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). Where codefendants are charged with separate substantive offenses, the substantive counts are not misjoined where the conspiracy count, the connecting link of the substantive counts, is proved. United States v. Wright, 309 F.2d 735 (7 Cir. 1962).

Godel contends that, because he was acquitted on charges of embezzling portions of the $10,000 with respect to which he was convicted of filing a false statement under Count 5, the two verdicts are inconsistent and the latter should be set aside. This view overlooks the fact that the mere filing of a false statement...