United States v. Wilkinson

• Decision Date: 26 June 1972
• Docket Number: No. 71-2007.,71-2007.
• Citation: 460 F.2d 725
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene Davis WILKINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 725 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Eugene Davis WILKINSON, Defendant-Appellant.

No. 71-2007.

United States Court of Appeals, Fifth Circuit.

May 15, 1972.

Rehearing Denied June 26, 1972.

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Robert L. Templeton, Kolander, Templeton & Hamilton, Amarillo, Tex., for defendant-appellant.

Eldon B. Mahon, U. S. Atty., W. E. Smith, John Truelson, Asst. U. S. Attys., Fort Worth, Tex., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Appellant Wilkinson was charged in eight counts with violations of the mail fraud statute, 18 U.S.C.A. § 1341.¹ It was alleged that he fraudulently obtained monies from Phillips Petroleum Company for work assertedly done at his sheet metal shop in Borger, Texas by sending false invoices for labor and material to Phillips, for which Phillips in return remitted payment by check through the mails. The most critical points which Wilkinson asserts here are that the trial court erred in (1) instructing the jury on good faith as a defense, on presumed intent and on the use of evidence on other counts; (2) refusing to suppress evidence discovered by a private investigator who worked at other times as an investigator for a state district attorney; (3) refusing to require greater pre-trial discovery; and (4) admitting documentary evidence. We find all assigned errors without merit and affirm.

The evidence against Wilkinson, construed in the light most favorable to the government,² consisted of the testimony of the following seven witnesses: a private investigator for Phillips who reported the contents of two conversations he had with Wilkinson, during which conversations Wilkinson said he "felt bad" about letting the fictitious invoices go through, that he guessed he had defrauded Phillips of "about twelve thousand dollars," and that he would "be happy to reimburse them"; a Phillips disbursement supervisor who testified regarding the company's receipt of the false invoices, and payment therefor by means of checks sent through the mails to Wilkinson's shop; a bank official who testified that the Phillips checks were endorsed and deposited to Wilkinson's bank account; and finally, four Phillips plant supervisors who indicated that specific items for which Phillips was billed were never received at the plant. Two of these supervisors testified concerning items other than those listed in the three counts under which Wilkinson was ultimately convicted. A single allegedly false invoice was introduced into evidence under each of those three counts, these being for a 50 inch pipe, a conveyor trough, and a discharge hopper. One supervisor testified concerning the non-receipt of the first two, and another supervisor as to the non-receipt of the third.

Four of the counts were dismissed with prejudice after the government chose not to introduce evidence thereon; a not guilty verdict was returned on one count; and Wilkinson was found guilty, after trial by jury, under the three remaining counts. A motion for new trial was denied, and this appeal followed.

I. THE INSTRUCTIONS

Wilkinson's most urgently pressed specifications of error concern two objections he made below, and repeats now, to the trial judge's instructions to the jury. He first complains of the court's refusal to give his specifically requested instructions on the defendant's "good faith." Those requested instructions were:

If you should find beyond a reasonable doubt from the evidence that any invoice was false as charged, but have a reasonable doubt whether the defendant in good faith believed the invoice to be correct, then you shall find the defendant not guilty.

In connection with the preparation or in the transmission of any of the invoices in this case, you are instructed that good faith and an honest purpose on the part of the defendant is an absolute defense to the charge against him. Therefore, if you believe, or if you entertain a reasonable doubt upon the question of whether the invoices were prepared and transmitted in good faith by the defendant, then it is your duty to find the defendant not guilty.

The court's actual charge on this issue was:

If you believe that any such invoice in question, and as shown by the direct evidence pertaining to Counts 4, 5, 6 and 8, were believed by the defendant, in good faith, and with honest purpose to be correct, then such invoice would not be one upon which a conviction could be based, and you would find the defendant not guilty on that particular count.

Now, a fraudulent misrepresentation or representation, fraudulent representation, may be effected by conduct, by acts, as well as by words, by silence when there is duty to speak, by half truths calculated to mislead, or by statements made with a reckless indifference as to whether they are true or false.

You are instructed that an essential element of the mail fraud offense charged is an intent to defraud, and this intent must be established by the evidence beyond a reasonable doubt.

To act with intent to defraud means to act knowingly and with the specific intent to deceive for the purpose of either causing some financial loss to another or bringing about some financial gain to one\'s self.

Wilkinson concedes, as he must, that it was not error that the judge refused to use the exact words he requested, as long as their substance was adequately covered. United States v. Knox, 458 F.2d 612 (5th Cir. 1972) 1972; Posey v. United States, 416 F. 2d 545, 555 (5th Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127 (1970). The trouble for his point is that this necessary concession is too much, for we are satisfied that the charge fully and fairly informed the jury of the law applicable to the defense that the defendant acted in good faith. Inasmuch as the jurors were told that they must find beyond a reasonable doubt that Wilkinson acted with an intent to defraud, it was not necessary that they also be told that they must find beyond a reasonable doubt that he acted without good faith. New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir. 1968), cert. denied 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969).

The second portion of the charge Wilkinson contends was prejudicial concerns the instruction on specific intent. He objects specifically to the following language:

The law provides a rebuttable presumption that a man intends the natural and probable consequences of his own acts. Wrongful acts knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent.

This language appeared in the following context:

Intent may be proved by circumstantial evidence. Indeed, it rarely can be established by any other means. While witnesses may see and hear and thus be able to give direct evidence of what a defendant does or fails to do, there can be no eyewitness account of the state of mind with which the acts were done or omitted, but what a defendant does or fails to do may indicate intent or lack of intent to commit the offense charged.

The law provides a rebuttable presumption that every man intends the natural and probable consequences of his own acts. Wrongful acts knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent. The color of the act determines the complexion of the intent. The intent to injure or defraud can be presumed when the unlawful act which results in loss or injury is proved to have been knowingly committed. It is a well settled rule that the intent can be presumed and inferred from the result of the action. If a man knows that the act he is about to commit will naturally or necessarily have the effect of injuring or defrauding another, and he voluntarily and intentionally does that act, he may be chargeable in law with the intent to injure or defraud.

Relying on our decision in Mann v. United States, 319 F.2d 404 (5th Cir. 1963), Wilkinson asserts that the objectionable instruction caused the burden of proof on the element of intent to be impermissibly shifted to him. The charge which Mann held to be reversible read:

It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused. Mann v. United States, supra at 407.

The court said of this instruction that:

If the charge had ended when the jury was told that a person is presumed to intend the natural consequences of his own acts, when considered in the light of the charge as a whole, there would have been no error. When the words, "So unless the contrary appears from the evidence" were introduced, the burden of proof was thereupon shifted from the prosecution to the defendant to prove lack of intent. Id. at 409.

Although Mann specifically approved telling the jury that a man could be presumed to intend the natural and probable consequences of his own acts, Wilkinson asserts that the addition of the preamble, "The law provides a rebuttable presumption that a man intends the natural and probable consequences . . .", resulted in reversible error. For several reasons we cannot agree.

First, we note that the exact instruction challenged in this case was approved in Estes v. United States, 335 F.2d 609 (5th Cir. 1964), cert. denied 380 U.S. 926, 85 S.Ct. 884, 13 L.Ed. 814. The charge given there was found to be distinguishable from the Mann charge on three grounds: the "rebuttable presumption" language was not synonymous with the "so unless the contrary appears from the evidence" language; the Estes charge, read as a whole, contained sufficient...