United States v. Minyard, 71-2228.

• Decision Date: 14 July 1972
• Docket Number: No. 71-2228.,71-2228.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dale Duane MINYARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

461 F.2d 931 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Dale Duane MINYARD, Defendant-Appellant.

No. 71-2228.

United States Court of Appeals, Ninth Circuit.

June 7, 1972.

Rehearing Denied July 14, 1972.

Charles F. Moses (argued), Robert L. Stephens, Jr., of Sandall, Moses & Cavan, Billings, Mont., for defendant-appellant.

Keith L. Burrowes, Asst. U. S. Atty. (argued), Otis L. Packwood, U. S. Atty., Billings, Mont., for plaintiff-appellee.

Before HAMLEY, BROWNING and WRIGHT, Circuit Judges.

HAMLEY, Circuit Judge:

Dale Duane Minyard appeals from his conviction on eight counts¹ of a seventeen-count indictment charging that, on various dates in June and July, 1969, he obtained by fraud, from the individual named in each count, money which was the subject of a grant or contract of assistance pursuant to the Economic Opportunity Program, in violation of 42 U.S.C. § 2703. Two-year concurrent sentences were imposed.

In the summer of 1969 an encampment for citizenship program was inaugurated for the Great Falls, Montana area. This contemplated taking eleven children from the poverty level and making arrangements for five of them to go to an encampment in New York, five to an encampment in Kentucky, and one to an encampment in Puerto Rico. It was decided that the tuition, and the expenses of board and room would be paid, one half by the United Scholarship Fund, and the other half by the Encampment for Citizenship group. It was also decided that one half of the children's transportation expenses would be paid by the United Scholarship Fund, and the remaining expenses would be paid by the children.

It was not possible for these children to pay for the other expenses to be incurred in connection with the project. It was therefore decided to place the eleven children on the summer work program and to have the children utilize their wages so earned to pay such costs. Time cards were made out in advance and signed by each of the participants in the program. The wages they earned, and the funds to be given the children as noted above, were turned over to Minyard for use in effectuating the described program. He was then the Director of the Neighborhood Youth Corps, part of Opportunities, Incorporated, a Montana corporation which received financial assistance and grants under the federal Economic Opportunity Program.

Minyard placed these funds in his personal bank account. He did not utilize all of these funds for payment of expenses, nor did he turn back to the eleven children all of the funds he did not expend for expenses. As to each child, Minyard claimed that he had paid the child's air fare from the money turned over to him whereas, in fact, all air fares were paid for entirely by United Scholarship Services of Denver, Colorado. Minyard did not make an accounting to each of these children and only made those he did make months after the return of the children to the Great Falls area, and then only after Minyard had been interviewed concerning the transaction by the Federal Bureau of Investigation. He did not have, in his personal account, sufficient money to pay all that was still due to someone other than himself.

On this appeal, Minyard calls attention to what he believes are the essential elements of criminal fraud, and seems to argue that the evidence is insufficient to support a verdict of guilty of fraud under the eight counts in question. We have examined the record and are convinced that the evidence is sufficient. While the instruction given on the question of fraud could have been more explicit, we think it was sufficient for the purpose of the relatively simple transactions in question.

Minyard argues that the evidence as to embezzlement was not sufficient and that no proper instruction was given on embezzlement. The short answer is that in all but two of the eight counts under which Minyard was convicted no charge of embezzlement was involved and that in the remaining two (fifteenth and sixteenth counts) the reference to "misapplication of funds" is used in the conjunctive with the fraud charge. Thus, even as to these two counts, all the Government had to prove was fraud.

Minyard contends that the trial court erred in rejecting defendant's offer to prove by witness Robert M. Hardaway, that defendant's course of conduct negatived intent to defraud.

The offer of proof concerning Hardaway should have been accepted if this witness could have provided material evidence pertaining to Minyard's intent in connection with these transactions. But Hardaway's testimony would have pertained to an unrelated loan transaction in February, 1967, more than two years prior to the transactions dealt with in the indictment. Such testimony, as the trial court correctly ruled, would have been irrelevant.

Finally, Minyard argues that after count seventeen of the indictment was dismissed at the close of the Government's evidence, the trial court erroneously failed to withdraw from the jury the evidence pertaining to that count, and erroneously failed to provide the jury with any standards or guidelines as to the appropriate use it could make of this evidence.

The circumstances surrounding the charge embraced in count seventeen dealt with an alleged fraud, and wilful and knowing embezzlement of funds in the amount of $1,341.00 paid by Dr. Winfield...