United States v. Weiss, 37-70.
| Decision Date | 17 September 1970 |
| Docket Number | No. 37-70.,37-70. |
| Citation | 431 F.2d 1402 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Oscar W. WEISS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Alice Loveland, Denver, Colo., (Thomas K. Hudson, Denver, Colo., on the brief) for appellant.
Leonard W. D. Campbell, Asst. U. S. Atty., (James L. Treece, U. S. Atty., on the brief) for appellee.
Before PHILLIPS, BREITENSTEIN and HILL, Circuit Judges.
Weiss was charged by a four-count indictment with violations of 18 U.S. C.A. § 1001, 62 Stat. 749, which in part here pertinent reads:
"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully * * * makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."
Each of Counts I and II of the indictment charged Weiss with making such a false statement. Counts III and IV charged him with using such a false writing. He was convicted on all four counts. Imposition of sentence was suspended and Weiss was placed on probation for three years.
On March 16, 1966, the Bureau of Land Management, Department of the Interior, in accordance with regulations duly promulgated by the Secretary of the Interior, pursuant to 43 U.S.C.A. § 1201, commenced a contest of certain unpatented mining claims by filing a complaint in the Colorado Land Office, Bureau of Land Management, Department of the Interior, which office had jurisdiction over the lands involved.
The complaint described the mining claims by number and location. It named Weiss and 11 others as contestees and alleged that they owned or claimed some interest in such claims; that the lands involved were public lands of the United States, and that the claims were invalid for five reasons stated in the complaint. Each of such reasons was a good ground for adjudging that the claims were invalid.
On April 12, 1966, Robert G. Gnam filed in the Colorado Land Office an affidavit of service, in which he averred that on April 7, 1966, he personally served and delivered to Weiss at 3241 Sheridan Boulevard, Denver, Colorado, the complaint referred to above, which was particularly described in such affidavit, together with a copy of Circular No. 2164, attached thereto.1
On December 1, 1966, the Department of the Interior, Bureau of Land Management, filed its decision in the contest, in which it found that a copy of the complaint was served on Weiss on April 7, 1966, and an answer filed by Albert Latham, Jr., as attorney for Weiss, was delivered to the Colorado Land Office on May 16, 1966, and that no answers were filed by the other contestees within 30 days after service was completed on them. It decided that Weiss did not file an answer within 30 days after service of the complaint, and therefore his answer was not timely. It decided that since none of the contestees had filed an answer within 30 days after service upon them, the allegations of the complaint should be taken as admitted, and the case decided without a hearing. It decided that each of the mining claims was invalid.
From such decision Weiss filed a notice of appeal, accompanied by a statement of the reasons therefor. He also filed in the Bureau of Land Management in support of his appeal, the three affidavits upon which the charges in the indictment were predicated. One of the affidavits was made by Weiss, himself, one by John F. Milan, and one by Edward Culver.
In his own affidavit, Weiss, after stating he was a contestee in the mining claim contest referred to above and setting forth facts which accurately described such contest, said:
Milan's affidavit averred:
"That on April 19, 1966, he had occasion to drive Mr. Oscar W. Weiss from his office to Mr. Weiss\'s residence at 3241 Sheridan Boulevard, Denver, Colorado; that he drove into the alleyway between Sheridan Boulevard and Ames Street, headed north at approximately 7:00 o\'clock in the evening, and that when he arrived at the rear of the Weiss residence an automobile was parked blocking the alley so that he could not pass; that a man got out of the parked car and approached his car and contacted Mr. Weiss as he got out of the car; that the man handed a sheaf of papers to Mr. Weiss and that Mr. Weiss turned to him and stated he had just been served with a complaint involving mining claims he owned in Jackson County, Colorado."
Milan testified that the affidavit which he signed was brought to him by Weiss; that he drove Weiss home four or five times in the month of April 1966; that he did not recall the precise date stated in the affidavit at the time he signed it; that he did not attach any importance to such date, and that there was no discussion of the date between him and Weiss.
Culver averred in his affidavit:
Culver testified that Weiss came to him in December 1966 or January 1967 and told him he needed an affidavit stating that he, Weiss, was in Durango in April 1966; that Weiss showed him the desired affidavit and he signed it; that he did not remember, at the time he signed it, the dates the affidavit stated Weiss was in Durango; that he assumed Weiss knew the dates, and he presumed that they were correctly stated in the affidavit.
Gnam testified that about dusk in the evening of April 7, 1966, he was driving toward the home of Weiss on Sheridan Boulevard; that as he approached the home he slowed down to endeavor to determine if any lights were on in the Weiss house; that he looked in his rear view mirror and saw Weiss riding as a passenger in a car driven by another man approaching closely from the rear; that he further reduced his speed and let the other car pass him; that the driver of the other car turned right at the next intersection and right again at the alley; that he followed the other car until it stopped in the alley at the rear of the Weiss home; that he stopped, and when Weiss got out of the other car he got out of his car, addressed Weiss by name, and handed him a copy of the complaint and of Circular No. 2164. The notary jurat on Gnam's affidavit is dated April 8, 1966, and the stamp on the affidavit of service reads: "Received Colorado Land Office Denver, Colorado 1966 Apr 12 PM 12 23 6."
It will be recalled that Weiss averred in his affidavit that he was served on April 19, 1966, in the alley at the rear of his home.
After proper identification by Don Cenyon, assistant manager of passenger refunds and records of Trans-World Airlines at Kansas City, Missouri, the Government introduced two coupons of a two-part airline ticket, which Cenyon obtained from the records of TWA in Kansas City, Missouri. Each coupon named O. S. Weiss as the passenger. One coupon was for a flight from Denver to Durango on April 4, 1966, and the other for a flight from Durango to Denver on April 5, 1966. The tickets were issued by TWA, but the transportation was on Frontier Airlines, and the tickets were picked up by Frontier from the passenger. In the normal course of business, Frontier billed TWA for the fares and sent it the coupons. Flight Coupon No. 1, covering the trip from Denver to Durango, had a perforation showing it was used on April 4, 1966, and Flight Coupon No. 2, covering the trip from Durango to Denver, had a perforation showing it was used on April 5, 1966.
The Government introduced Exhibits 30, 31, and 32. Marion Voss testified he had been the owner and manager of the Silver Spur Motel in Durango, Colorado, since 1957. He identified Exhibits 30 and 32, and stated they were pages from the motel registration register, posted daily, showing the date, the names of guests registered at the motel, and the room to which each was assigned, and that they were maintained under his supervision in the regular course of the motel's business. He said they were kept "so we don't get messed up on our rooms." On Exhibit 30, the registration register for April 4, 1966, under the headings "Name" and "Residence" appears "Weiss, Oscar W., 3241 Sheridan, Denver, Colo. * * * Room 11." Exhibit 32 is the registration register for April 6, 1966. The name of Oscar W. Weiss does not appear thereon.
Exhibit 31 is a registration slip of the Silver Spur Motel. It shows the name of Oscar W. Weiss in printing, "Room 11," and the date, "4/4/66." Counsel for Weiss stated he did not object to the admission of Exhibit 31.2
The Government introduced Exhibits 23 and 24, which are colored photographs of the mining claims in contest, showing the beauty, usefulness and desirability of the land covered by the claims, to show motive and intent on the part of Weiss in making and using the affidavits.
Attempts to serve Weiss by registered mail had failed of delivery. In talking with Rogers Robinson, an attorney in the office of the General Counsel, United States Department of Agriculture, in Denver, who was in charge of the contest action, Gnam, who lived in the same neighborhood as Weiss, agreed to undertake to make the personal service on Weiss. Robinson told him if Mr. Weiss was not at home, he could make...
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