United States v. Johnson

• Citation: 284 F. Supp. 273
• Decision Date: 05 April 1968
• Docket Number: No. 5989.,5989.
• Parties: UNITED STATES of America, Plaintiff, v. Paul O. JOHNSON, Defendant.
• Court: U.S. District Court — Western District of Missouri

284 F. Supp. 273

UNITED STATES of America, Plaintiff, v. Paul O. JOHNSON, Defendant.

No. 5989.

United States District Court W. D. Missouri, Southwestern Division.

April 5, 1968.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bruce C. Houdek, U. S. Asst. Dist. Atty., Kansas City, Mo., for plaintiff.

Horace S. Haseltine, Springfield, Mo., A. L. Shortridge, Joplin, Mo., for defendant.

MEMORANDUM AND ORDER DENYING MOTION FOR NEW TRIAL

ELMO B. HUNTER, District Judge.

At a trial held herein defendant was found guilty as charged in Counts III and IV of the indictment. Briefly stated, Count III charges defendant with violation of 18 U.S.C. § 287 (false claim)¹ and Count IV charges defendant with violation of 18 U.S.C. § 1001 (false statement or representation).² Defendant has filed a motion entitled "Motion for Judgment or Acquittal Notwithstanding the Verdict and, In the Alternative, For a New Trial" (consisting of 19 pages), "Suggestions in Support of After Trial Motions" (consisting of 4 pages), and "Suggestions in Support of Defendant's After Trial Motions" (consisting of 31 pages). The "Motion For Judgment or Acquittal Notwithstanding the Verdict and, In the Alternative, For a New Trial" sets forth as grounds for the same points numbered I through XXII, some with numerous subparts. The "Suggestions in Support of After Trial Motions" submits "points and authorities" numbered I through XIV, the same bearing but little resemblance to the motion itself either in topics discussed or in the method of presentation. The "Suggestions in Support of Defendant's After Trial Motions", filed at a later date, follow the pattern used in the motion itself and, with some reframing of the issues, present the authorities relied upon. In undertaking to discuss with some clarity the various questions raised the Court has endeavored to group the points of error to some extent, and has taken up the matters in a sequence different from that presented by defendant.

Briefly stated, the government in this case alleged that defendant, a participant in the Conservation Reserve Program, in the fall of 1963 certified that he had complied with and would continue to comply with the requirements of the program and that the amount shown on the application form was the correct amount due him, when in fact he had prior thereto begun to develop a subdivision on a part of the land in the program and had made arrangements for additional development to be undertaken in the calendar year.

The Court considers first the issues raised relating to the indictment and its return. Defendant contends that the indictment should be quashed because of the delay in presenting the matter to the grand jury, relying upon the case of United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). This contention is without merit. The record will demonstrate that the only attack on the indictment, and the first indication by defendant that there had been too great a delay in presenting the matter to the grand jury, was on the first day of trial, and then by bare motion only without supporting suggestions. The indictment was returned on March 11, 1967 and the counts on which defendant was found guilty relate to his activities in the latter part of 1963. The record of the trial shows that the investigation of this case required considerable time due to no small extent to the nature of defendant's business operations concerning the land in question during the time covered by the indictment. It was not a simple case to develop. Further, the exhibits attached to the present motion by defendant demonstrate the government's candor in this regard in advising defendant's attorney as early as May of 1966 of the government's intention to present the matter to the grand jury. The teachings of the Ewell case, supra, actually support the government in this case. The Court there stated, supra at 122, 86 S.Ct. at 777 "We note, first, * * * that the new indictments * * * were brought well within the applicable statute of limitations, which is usually considered the primary guarantee against bringing overly stale criminal charges." Such is true in the case at bar, with the additional factor that defendant was advised well in advance of indictment that the government intended to seek such indictment. The Court in the Ewell case also observed that the right to a speedy trial is necessarily relative, and is consistent with delays and depends upon the circumstances in each case. While it secures rights to a defendant, "it does not preclude the rights of the public." United States v. Ewell, supra, at 120, 86 S.Ct. at 776. There being no evidence of intentional or vexatious delay or unreasonable harassment of defendant, he is in no position to claim surprise or prejudice under the circumstances of this case, United States v. Ewell, supra, Foley v. United States, 290 F.2d 562 (8th Cir. 1961), cert. den. 368 U.S. 888, 82 S.Ct. 139, 7 L.Ed.2d 88 (1961).

Defendant's contention that the Court erred in refusing to grant its motion to require the government to elect between Counts III and IV is without merit. "The test to be applied to determine whether there are two offenses or only one is whether proof of any additional fact, not constituting an element of one of the offenses, is required to sustain a conviction on the other," Cardarella v. United States, 375 F.2d 222, 225 (8th Cir. 1967), cert. den. 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1962). See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616 (1926). Separate offenses may be committed in the same transaction where the elements are different and the proof required for conviction is different, Blockburger v. United States, supra. Briefly stated, the elements differ in that the offense described in § 287 (Count III) requires that a claim (for money or property) be presented to a department or agency of the United States, upon or against the United States, while the offense described in § 1001 (Count IV) requires only a statement or representation (need not involve money or property) within the jurisdiction of any department or agency of the United States. Moreover, the Congressional intent on this matter is clearly to treat these as separate and distinct offenses, for in 1940 section 80 of Title 18, U.S.C., which referred to both claims and statements, was divided into the two parts, present sections 287 and 1001.

In an even broader attack on the indictment defendant contends that it was the intent of Congress that the civil penalties provided in the Soil Bank Act be the only penalties to which defendant could be subjected and that sections 287 and 1001 of Title 18 can have no application to the facts of this case. There is no merit in this contention. The very purpose of sections 287 and 1001 is to protect the government against those who would cheat or mislead it in the administration of its programs, United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205 (1937), United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941). The mere fact that the Soil Bank Act makes no additional provision by way of criminal sanctions does not render ineffective these sections of the criminal code or indicate that Congress intended to restrict their application, United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). Sections 287 and 1001 are applicable to the facts of this case and the indictment pursuant to those sections is in accordance with law. The Soil Bank cases upon which defendant relies are not on point in that they are actions to review the civil penalties assessed against participants in the program and do not in any way touch upon the situation presented here. Nor does the indictment and conviction thereunder coupled with the attempt by the government to assess civil penalties³ subject defendant to cruel and unusual punishment, to excessive fines, nor does it constitute a Bill of Attainder as defendant would suggest, without referring to any authorities. The Court is not aware of any rule of law that would prevent the government from availing itself of its civil remedies as well as enforcing the criminal law.

Defendant contends in a rather general way that 18 U.S.C. §§ 287 and 1001 are unconstitutionally vague and indefinite, and more particularly, that as applied to the facts of this case are unconstitutionally vague and indefinite. Such attack on the statutes themselves has been without success, United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941), United States v. Houcks, 224 F.Supp. 778 (W.D.Mo.1963). As applied to the facts of this case, the attack is also without merit. The statement which the government alleges defendant falsely made is as follows:

I hereby certify that for the program year indicated above I have complied with and will comply with all the requirements under the Conservation Reserve Program and that the gross payment shown hereon to be due me, is correct * * *.

Defendant contends that the above statement is merely a conclusion of law and a legal opinion. The term "comply" is defined in Webster's Third International Dictionary (unabridged) as "* * * to complete, accomplish, perform what is due * * * conform or adapt one's actions (as to another's wishes) * * *." The above statement is not a mere conclusion of law or legal opinion. It is a statement in which defendant asserts he has done certain things and will continue to do certain things. The evidence shows defendant was familiar with the important requirements of the program.⁴ It is not merely a statement that the law is thus and so, or that the law requires such and such. See Todorow v. United States, 173 F.2d 439 (9th Cir. 1949), cert. den. 337 U.S. 925, 69 S.Ct. 1169, 93 L.Ed. 1733 (1949), wherein the false statement under a section 1001 prosecution was the assertion...