Petition — BAVOUUSETT v. UNITED STATES (No. 77-289)

| . @,, Supreme Cour, U.S —

auG 19 1977 |

MICHAEL RODAK, JR., CLERK |

Supreme Court of the United States

OCTOBER TERM, 1977

wo. FE-289

GLENN B. BAVOUSETT,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

4 PETITION FOR A WRIT OF CERTIORARI

a TO THE UNITED STATES COURT OF APPEALS

4 | FOR THE FIFTH CIRCUIT

i JIM CLAUNCH

= 408 Sinclair Building

Y Fort Worth, Texas 76102

4 335-4003

ATTORNEY FOR PETITIONER

7

———

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES:

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182,

ek ef 8 ee ree

Berger v. United States, 295 U.S.78 ............

Gravitt v. United States, 533 F.2d 1211..........

Hanford v. United States, 249 F.2d 295 .........

United States v. Avalos, 541 F.2d 1100 (Sth

Sk GS 66 6 b0.c0b.eenenneeke sb euedeteces

United States v. Barket, 530 F.2d 189 (8th

Sy dor ane a uhe ens ehese rete ccecesss

United States v. Ewell, 383 U.S. 116, 86 S.Ct.

Fy OP ee le EF CUED cccccevesscacenese

United States v. Golden, 436 F.2d 941 (1971)

he ee ee ee a

United States v. Marion, 404 U.S. 307, 92

S.Ct. 455, 30 L. Ed. 2d 468 (1971) ...........

United States v. Stamp, 458 F.2d 759 (US.

REL Egg Re Rey Se

CONSTITUTIONAL QUESTION INVOLVED:

Amendment V, U.S. Constitution

TABLE OF AUTHORITIES (Continued)

STATUTES INVOLVED: Page

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Title 28 USC Federal Rules of Evidence,

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il

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

GLENN B. BAVOUSETT,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED

STATES:

Glenn B. Bavousett, the Petitioner herein, prays that a writ

of certiorari issue to review the Judgment of the United States

Court of Appeals for the Fifth Circuit, entered in this case on

the 18th day of May, 1977. Petitioner’s motion for rehearing

and for rehearing en banc was denied on July 20, 1977. (See

Appendix “C”’).

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit is unreported and is printed in Appendix A hereto,

infra pp. A-1 - A-9. A corrected opinion was received on August

5, 1977 (Appendix E).

JURISDICTION

The judgment of the Court of Appeals was entered on the

18th day of May, 1977. The jurisdiction of this Court is

involved under 28 U.S.C. 1254 (1). (See Appendix “D”’).

QUESTIONS PRESENTED

Does the loss of evidence through no fault of Defendant

during a long pre-indictment delay after the Federal Bureau

of Investigation has begun its investigation and during a time

when the Federal Bureau of Investigation has access to the

evidence and has knowledge of the existence of the records

and knows the need for preserving them, to wit: company

business records in regard to a government contract, and at a

time when this Defendant did not have access or control of

the records deprive the Defendant of a ‘air trial and due process

of law under the Fifth Amendment to the Constitution of the

United States of America?

Did the Court err in admitting into evidence certain exhibits

variously referred to as computer runs or print-outs as sum-

maries of other evidence prepared by the Federal Bureau of

Investigation which were encumbered by powerfully prejudicial

“conclusionary captions” such as “original false”, “falsified

difference” and “false money”, thereby depriving the Defen-

dant of a fair trial and due process of law under the Fifth

Amendment to the United States Constitution when the conclu-

sions were an essential element of the indictment and charge

against the Defendant to be proved beyond a reasonable doubt?

Did the closing argument of the United States Attorney

which was to the effect that the “jury’s tax money was being

kicked in here and somebody should be held responsible”

deprive the Defendant of due process and a fair trial under the

_ Fifth Amendment to the Constitution of the United States of

America?

CONSTITUTIONAL QUESTION

The due process of the Fifth Amendment to the Constitution

is involved in this case:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

STATEMENT OF CASE

Defendant, Glenn B. Bavousett, was an employee and officer

of N.H.A., Inc. a Texas Corporation, that had two contracts

in regard to technical publications with the United States Army

Aviation Material Command of the United States Department

of Defense.

The indictment was alleged in eight counts. The first count

was conspiracy and the other seven counts alleged the filing of

false claims against the United States Government, and aiding

_ or abetting under Title 18, United States Code, Sections 286,

287 and 2.

The indictment was filed August 7, 1975. The alleged events

referred to in the indictment occurred between September 1967

and November 1970. The Federal Bureau of Investigation began

its investigation in October of 1971.

Evidence had been presented to a Grand Jury concerning

the alleged crime as early as 1972. Some of the business records

of N.H.A., Inc. were lost or destroyed in 1973 or 1974. This

was long after the Defendant had ceased to be an employee or

officer of N.H.A., Inc. It was also long after the F.B.I. had been

investigating the case. The Federal Bureau of Investigation knew

of the importance of the business records and did not take the

necessary steps to preserve them.

Trial began March 22, 1976 in the United States District

Court for the Northern District of Texas, Fort Worth Division.

On April 1, 1976 the jury returned its verdict of guilty on all

eight counts of the indictment.

During the trial, the Court admitted into evidence over the

Defendant’s objections summaries prepared by the F.B.I.

which contained conclusionary statements such as “falsified

difference” and “false money”’.

Defendant further objected to the closing argument of the

United States Attorney to the effect that the jury’s tax money

was being “kicked in here”, and somebody should be held

responsible.

REASONS FOR GRANTING THE WRIT

ISSUE NUMBER ONE

The United States Court of Appeals for the Fifth Circuit

incorrectly applied the law set forth in United States v. Marion,

404 U.S. 307, 92 S.Ct. 455, 30 L. Ed. 2d 468 (1971). The

Marion case is the leading case on pre-indictment delay. The

interpretation of that case by the various Courts of Appeals and

in particular by the Fifth Circuit in this case shows that there

is a misunderstanding by the Courts of the law as set forth in

Marion.

The Fifth Circuit Court of Appeals has applied an incorrect

standard in the application of the Marion case and the effect

of the pre-indictment delay on this Defendant.

The following cases show the need for clarification of the

rules of pre-indictment delay as set forth in United States v.

Marion, infra.

United States v. Barket, 530 F.2d 189 (8th Cir. 1976).

The Court recognizes that whether or not Marion requires

conjunctive showing in a pre-indictment delay of (1) substantial

prejudice to the Defendant (2) governmental misconduct in

the form of a tactical delay, is unsettled.

Other cases which discuss the uncertainty of the standards

set forth in Marion are: United States v. Avalos, 541 F.2d 1100

(Sth Cir. 1976); Gravitt v. United States, 533 F.2d 1211.

The law regarding pre-indictment delay as it now exists is

vague and uncertain and is of great concern, not only to this

Defendant, but to all the people of the United States as a part

of the law of the United States in providing due process under

the Fifth Amendment to the Constitution of the United States

of America. .

The pre-indictment delay in this case was so severe that

the loss of the evidence through no fault of the Defendant

substantially impaired the Defendant’s ability to defend

himself. United States v. Golden, 436 F.2d 941 (1971) (8th

Cir.); United States v. Bwell, 383 U.S. 116, 86 S.Ct. 773, 15

L. Ed. 627 (1966).

The Government could have preserved the evidence and knew

of its importance, but failed to do so. This Defendant did not

have access to the records after he left the Company and could

not preserve the records.

Other cases supporting this Defendant’s position are Barker v.

Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed. 2d 101 (1972)

and United States v. Stamp, 458 F.2d 759 (U.S. App. D.C.).

ISSUE NUMBER TWO

The writ should also be granted in this case because of the

jury arguments made by the prosecutor which argument the

United States Court of Appeals for the Fifth Circuit held to be

“highly improper and an appeal to the passion and prejudices

of the jurors’. The Defendant has been denied due process

under the Fifth Amendment to the Constitution of the United

States and Berger v. United States, 295 U.S. 78, and Hanford

v. United States, 249 F.2d 295 have been misapplied to this

Defendant. Proper guidelines for jury argument are of great

importance to all Defendants in the administration of the

criminal law system of the United States.

ISSUE NUMBER THREE

In its corrected opinion (Appendix E), the Panel of Fifth

Circuit Court of Appeals relies upon Rule 1006 of the Federal

Rules of Evidence in regard to the admission of summaries and

the labels thereon.

The basic premise to Rule 1006 is that . . . “The original.

or duplicates shall be made available for examination and or

copying . . .” This was impossible to do in this case because a

part of the records had been destroyed as set out in the first

point of this petition. This contention has been asserted

throughout the trial that the lost records denied this Defendant

a fair trial.

Rule 1006 certainly does not state anywhere that the F.B.1.

or any member of the prosecution may offer into evidence

conclusionary statements that could not be testified about from

the stand. Certainly the Court would not permit a member of

the F.B.1. to testify that in his opinion this is “false data’’, yet

in admitting into evidence the conclusionary statements the

Court has done the same thing. The admission of these sum-

maries with the conclusions thereon deprived this Defendant

of a fair trial under the Fifth Amendment to the Constitution

of the United States.

CONCLUSION

For the reasons stated, the Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

im Claunch

408 Sinclair Building

Fort Worth, Texas 76102

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

I, Jim Claunch, attorney for the Petitioner, Glenn B.

Bavousett, and a member of the Bar of the State of Texas

having made application to be admitted to the Bar for the

United States Supreme Court, hereby certify that on this

the _19th day of August, 1977, I served three copies of the

foregoing Petition for Writ of Certiorari on each of the follow-

ing offices:

1. Mr. John Sweeney and Mr. Gehard Kleindschmidt, Assis-

tant United States Attorneys for the Northern District of

Texas, by mailing them three copies of the same at their office,

Federal Courthouse Building, Fort Worth, Texas.

2. On the United States by mailing three copies thereof in

a duly addressed envelope, to the Honorable Robert H. Bork,

United States Solicitor General, United States Department of

Justice, Washington, D.C.

APPENDIX “A”

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 76-2314

UNITED STATES OF AMERICA,

Plain tiff-Appellee,

VERSUS

LEWIS MILLER SMYTH, III, and GLENN B. BAVOUSETT,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Texas

May 18, 1977

Before GODBOLD, TJOFLAT and HILL,

Circuit Judges

TJOFLAT, Circuit Judge:

Appellants Lewis Smyth and Glenn Bavousett are former

officers of Norman Harwell Associates, Inc. (NHA), a corpora-

A-]

tion engaged in the preparation and publication of technical

materials. They were charged in an eight count indictment with

conspiring to defraud 1/ and with defrauding 2/ the United

States by overbilling the United States Army Aviation Material

Command (AVSCOM) on two cost-plus contracts 3/ which

NHA had with AVSCOM. The overbilling was allegedly done

intentionally by appellants and other officers and employees of

NHA who systematically replaced the company’s original

employee labor distribution cards with a set of forged cards

on which time formerly billed by NHA to private clients was

shown as having been spent on AVSCOM work. The appellants

were tried and convicted along with other participants in the

scheme and sentenced to concurrent five-year terms of imprison-

ment on each count.

On appeal appellants’ principal arguments are (1) that the

lengthy pre-indictment delay denied them due process, (2) that

the lower court erred in admitting into evidence certain FBI

computer printouts, and (3) that the prosecutor’s closing

argument was improper and denied them a fair trial. A! We

reject each of these arguments and affirm.

1/18 uU.8.c. § 286 (1970).

2/ 14, 287

3/ Under the contracts NHA agreed to develop, write and deliver

certain technical manuals to AVSCOM at an agreed composite billing rate

for each type of employee who worked on the contracts. The rate was

designed to include labor, overhead and profit. Thus NHA was required to

keep track of the time employees spent on AVSCOM work and then to

bill AVSCOM at the composit rate for the total hours.

4) Appellants also question the sufficiency of the evidence, the trial

court’s failure to grant their severance motions, the FBI’s refusal to discuss

the case with them, and certain jury instructions. We have examined each

of these claims of error and find them to be totally without merit.

I. Pre-Indictment Delay

The indictment was returned on August 7, 1975. In Count I

it charged a conspiracy running from June 28, 1968, through

September 15, 1971, while Counts II through VIII charged

substantive offenses based on false billings during 1970. (These

false billings constituted some of the overt acts specified in the

conspiracy count.) Thus, there was a period of three years and

ten months between the termination of the conspiracy (the

most recent offense) and the return of the indictment. Though

they concede that the indictment was returned well within the

five-year statute of limitations period, -2/ appellants claim that

under United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct.

455, 463, 30 L.Ed.2d 468, 478-79 (1971), the indictment

should nonetheless have been dismissed because the delay

substantially prejudiced their right to a fair trial. The prejudice

is said to have resulted from the accidental destruction of NHA

employees of certain corporate records in 1973, including

certain computer printouts, which appellants claim might have

demonstrated that the AVSCOM billings were not inflated. ©/

While it is admitted that the Government did not destroy these

records, appellants argue that the Government knew of the

records’ existence and importance and thus was negligent in

failing to insure their safe keeping.

We reject this argument for two reasons. First, the law

identifies two factors which must be considered in evaluating

5/ = 14.8 3282

&/ The appellants and the other officers and employees of NHA who

were involved in the fraudulent billing scheme left NHA in 1971 and

were thus not involved in the subsequent destruction of the records. The

records were simply thrown out to provide needed working space, and

the NHA employees in charge were under the impression that the records

were no longer important.

A-3

a complaint of pre-indictment delay: (1) that defendant

incurred substantial prejudice as a result of the government's

delay, and (2) that the prosecution had intentionally employed

the delay to gain a tactical advantage. United States v. Avalos,

541 F.2d 1100, 1107 (Sth Cir. 1976). See also United States v.

Duke, 527 F.2d 386 (5th Cir. 1976); United States v. Butts,

$24 F.2d 975 (Sth Cir. 1975). But see Gravitt v. United States,

523 F.2d 1211, 1216, (Sth Cir. 1975) (“negligence is counted

against the government but is weighted less heavily”’). There has

not even been an allegation here that the delay was “an inten-

tional device to gain tactical advantage over the accused.”

Marion, 404 U.S. at 320-21, 92 S.Ct. at 463, 30 L.Ed.2d at

478-79. The record clearly shows that, while the Government

investigation of NHA began in 1971, it was not until April 1975

that a witness came forward and related to investigators how

the fraud was perpetrated. Prior to that time the FBI knew that

NHA’s records had been tampered with but did not know who

the culprits were. Thus, the delay in the present case was in no

way related to any Government misfeasance.

Second, even if the Government had been responsible for the

pre-indictment delay, we believe that appellants have failed to

show substantial prejudice. The fact is that, while appellants

claim the missing records would have exonerated them, their

proffer failed to support their contention. Indeed, the record

indicates that all the pertinent records were before the court.

The original set of employee time cards and the forged set were

placed in evidence, as were the computer runs which tied the

forged set of cards into the vouchers presented to AVSCOM.

4/ Appellants characterize the Government’s conduct as negligent;

however, the alleged negligence relates to the failure of investigators to

seize the documents which were later destroyed. At no point did the

appellants make a showing that the Government’s negligence caused the

pre-indictment delay.

A-4

These were the critical source materials, for they clearly demon-

strated that someone copied the original cards submitted by

the employees and changed them to show additional work being

performed on AVSCOM contracts. They also established that

AVSCOM was subsequently billed on the basis of these forged

cards. Absent some explanation as to how the destroyed com-

puter printouts could have placed an innocent light on the

forged cards and the billings based on these cards, appellants’

claim that they were prejudiced is speculative at best and clearly

insufficient to demonstrate prejudice. See, e.g., Butts, 524 F.2d

at 977; United States v. McGough, 510 F.2d 598, 604 (Sth Cir.

1975).

II. The FBI Computer Printouts

At trial two sets of computer printouts prepared by the FBI

were introduced into evidence by the Government. One set

tabulated the information disclosed by the employee labor

distribution cards - the originals and the forged cards - to show

the discrepancies between them. Over each columa of the first

group of printouts was a heading, and the inside cover of the

exhibit contained a key which explained the meaning of each

heading. The key was as follows:

MEANING OF HEADINGS

LISTING HEADER DESCRIPTION

Voucher Hours = Billed by NHA per

Voucher

No Time Card Support

Worked Hours = Original Time Taken

From Time Cards

A-5

MEANING OF HEADINGS (Continued)

LISTING HEADER DESCRIPTION

Billed Hours = False Time Taken From

Time Cards

Amount of Voucher = Billed by NHA per

Voucher

No Time Card Support

AMOUNT FOR HOURS woRKED = Original Cost Supported

by Time Cards

The second set of printouts tabulated the information on the

billings submitted to AVSCOM and cross-referenced this infor-

mation to the original and forged employee labor distribution

cards. The exhibit was designed to show as to each voucher

how much time the Government was charged for in excess of

the time actually spent on AVSCOM work. The printouts

contained columns with the following headings: “original data,”

“falsified data,” “falsified data summarized,” and “difference

between original/false.””

Appellants objected to the use of the two sets of printouts on

the ground that the column headings and the explanatory key

constituted improper conclusions which invaded the province of

the jury. The objection was overruled, and the exhibits were

admitted. In charging the jury at the end of the trial, the court

instructed that these computer printouts were not evidence and

were only received as summaries of the labor distribution cards -

original and forged - and the billings, which were in evidence.

Appellants contend that this instruction failed to cure the error

earlier committed in allowing the jury to be exposed to the

conclusory matter appearing on the printouts.

A6

It is well settled that it is within the trial court’s discretion

to admit summaries such as these computer printouts, as long as

they are amply supported by the evidence and the jury is

instructed that the summaries themselves are not evidence. See

Fed. R. Evid. 1006. 8/ See also United States v. Prevatt, 526

F.2d 400, 404 (Sth Cir. 1976); United States v. Diez, 515 F.2d

892, 905-06 (Sth Cir. 1975), cert. denied, 423 U.S. 1052, 96

S.Ct. 780, 46 L.Ed.2d 641 (1976); United States v. Lawhon,

499 F.2d 352, 357 (Sth Cir. 1974), cert. denied, 419 U.S. 1121,

95 S.Ct. 804, 42 L.Ed.2d 820 (1975). Diez, for example,

involved a tax evasion prosecution in which the Government

used illustrative charts and summaries in the presentation of its

case. The captions on one chart read “‘schedule of Sales, Net

Taxable Gains . . . And Amounts Not Reported Or Taxable

Gain Reported By Others.” Appellants complained that the

captions were based on assumptions and infringed on the

province of the jury. The Court rejected this argument:

Any such chart of computations, however, must rest

on certain assumptions. Contrary to defendant's

argument, the essential requirement is not that the

charts be free from reliance on any assumptions, but

rather that these assumptions be supported by evi-

dence in the record . . . In this case it is indisputable

that the assumptions on which the Government based

its charts - that is, its version of the facts - were amply

supported by evidence already presented to the jury.

8/ — Rule 1006 provides:

The contents of voluminous writings, recordings or photographs

which cannot conveniently be examined in court may be presented in

the form of a chart, summary, or calculation. The originals, or duplicates,

shall be made available for examination or copying, or both, by other

parties at reasonable time and place. The Court may order that they be

produced in court.

A-7

The court should instruct the jury that “summaries

do not, of themselves, constitute evidence in the case

but only purport to summarize the documents and

detailed evidence already submitted.” . . . In this case

such instructions were given both when the Govern-

ment’s summary witness testified and again at the

close of the case. We believe the court’s instructions

eliminated any possibility of the charts confusing the

jury. 515 F.2d at 905-06 (citations and footnotes

omitted)

Here the original and forged employee labo: distribution

cards were in evidence. The computer printouts merely tabu-

lated the information on these cards. As for the headings, they

explained the significance the Government attached to the

tabulations. In this sense the headings reflected certain assump-

tions; however, the printouts and headings were amply

supported by the evidence and were designed solely as a means

to facilitate the jury’s understanding of the evidence. Moreover,

the jury was well aware that the printouts and headings were

prepared by the Government for that purpose. The trial court

was thus acting well within its authority when it admitted

the exhibits.

III. The Prosecutor’s Closing Argument

During his closing argument the prosecutor said: ““You want

to say we approve of this type of conduct in dealing with the

Government? Let Uncle Sam take the ride, but when you think

about that, think of that, that’s your tax money, that’s your

tax money being kicked in here.” Appellants submit that this

argument was an improper attempt to appeal to the personal

prejudices of ‘the jurors as taxpayers and that it was so preju-

dicial they were denied a fair trial.

A-8

We view the prosecutor’s pitch as an unprofessional and

highly improper appeal to the passion and prejudices of the

juror. See Handford v. United States, 249 F.2d 295 (Sth Cir.

1957); ABA Standards Relating to the Administration of

Criminal Justice, The Prosecution Function § 5 ,8(c) (1972).

But we must consider errors of this sort in the context of the

entire record to determine whether or not the substantial

rights of an accused were affected. See Handford, supra; Fed. R.

Crim. P. 52(a). In the present case, the court sustained the

objection and gave an appropriate cautionary instruction. 2/

More importantly, though, unlike the situation in Handford,

this clearly was not a close case. The evidence against appellants

was strong, and we are therefore convinced that the error was

harmless.

AFFIRMED.

9/ The court instructed the jury as follows:

Members of the jury, you are not to consider that statement for

the reason that it’s a personal appeal to you. It’s alright for him to argue

that tax money is paying for it but [not] the portion about your tax

money hurting you. It will not be considered by you because you’re not

supposed - you’re supposed to view the matter impartially. Record at

1107-08.

A-9

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

TEL. 504-589-6514

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

May 18, 1977

MEMORANDUM TO COUNSEL OR

PARTIES LISTED BELOW:

No. 76-2314 - U.S.A. VS. SMYTH, ET AL.

Dear Counsel:

Enclosed is a copy of the Court’s opinion this day rendered

in the above case. A judgment has this day been entered in

accordance therewith pursuant to Rule 36 of the Federal Rules

of Appellate Procedure.

Rules 39, 40 and 41, F.R.A.P., govern costs, petitions for

rehearing and mandates, respectively. A petition for rehearing

must be filed in the Clerk’s Office within 14 days from this

date. Placing the petition in the mail on the 14th day will not

suffice.

Local Rule 15 provides that “A motion for a stay of the

issuance of a mandate in a direct criminal appeal filed under

F.R.A.P. Rule 41 shall not be granted simply upon request.

Unless the petition sets forth good cause for stay or clearly

A-10

demonstrates that a substantial question is to be presented to

the Supreme Court, the motion shall be denied and the mandate

thereafter issued forthwith.”

If you are court-appointed counsel, your attention is called to

Local Rule 7 which provides: “Appointed counsel shall, in the

event of affirmance or other decision adverse to the party

represented, promptly advise him in writing of his right to seek

further review by the filing of a petition for writ of certiorari

with the Supreme Court, and shall file such petition, if re-

quested by such party in writing to do so.”

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By _/s/ Ann Barre

Deputy Clerk

enc.

ce: Mr. Jim Claunch

WMr. Charles Michael Mallin

Mr. Joseph A. Calamia

Mr. Woodrow Bean, Sr.

Mr. Gerhard E. Kleinschmidt

Mr. John W. Sweeney, Jr.

A-11

APPENDIX “C”

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

TEL. 504-589-6514

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

July 20, 1977

TO ALL PARTIES LISTED BELOW:

NO. 76-2314 - U.S.A. v. LEWIS MILLER SMYTH, III and

GLENN B. BAVOUSETT

Dear Counsel:

This is to advise that an order has this day been entered denying

the petition ( ) for rehearing, and no member of the panel nor

Judge in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the

petition ( ) for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for issuance

and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By /s/ Brenda M. Hauck

Deputy Clerk

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cc: Mr. Jim Claunch

Messrs. Charles Michael Mallin

Joseph A. Calamia

Mr. Woodrow Bean, Sr.

Messrs. Gerhard E. Kleinschmidt

Mr. John W. Sweeney, Jr.

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APPENDIX “D”

§ 236. Conspiracy to defraud the Government with respect

to claims

Whoever enters into any agreement, combination, or

conspiracy to defraud the United States, or any department

or agency thereof, by obtaining or aiding to obtain the payment

or allowance of any false, fictitious or fraudulent claim, shall

be fined not more than $10,000 or imprisoned not more than

ten years, or both.

June 25, 1948, c. 645, 62 Stat. 698.

§ 287. False, fictitious or fraudulent claims

Whoever makes or presents to any person or officer in the

civil, military, or naval service of the United States, or to any

department or agency thereof, any claim upon or against the

United States, or any department cr agency thereof, knowing

such claim to be false, fictitious, or fraudulent, shall be fined

not more than $10,000 or imprisoned not more than five years,

or both.

June 25, 1948, c. 645, 62 Stat. 698.

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APPENDIX “E”

CORRECTED OPINION

UNITED STATES of America,

Plaintiff-Appellee,

v.

Lewis Miller SMYTH, III and Glenn B. Bavousett,

Defendants-Appellants.

No. 76-2314.

United States Court of Appeals,

Fifth Circuit.

May 18, 1977.

Rehearing and Rehearing En Banc

Denied July 20, 1977.

Defendants were convicted in the United States District

Court for the Northern District of Texas at Fort Worth, Eldon

B. Mahon, J., of conspiring to defraud and with defrauding

the United States by overbilling government agency on two

cost plus contracts and they appealed. The Court of Appeals,

Tjoflat, Circuit Judge, held that (1) preindictment delay of

three years and ten months between termination of conspiracy

and return of the indictment did not prejudice defendants’

rights to a fair trial where the delay was not related to any

government misfeasance and defendant: failed to support their

contention that corporate records that had been accidentally

destroyed would have exonerated them; (2) admission of FBI

computer printouts together with underlying documents, with

instruction that summaries were not evidence, was within

court’s discretion; (3) prosecutor’s clesing argument that tax

money was involved was unprofessional and improper but was

harmless where evidence against defendant was strong.

Affirmed.

1. Indictment and Information Key 7

Factors which must be considered in evaluating complaint

of preindictment delay are that defendant incurred substantial

prejudice and that prosecution intentionally employed the

delay to gain a tactical advantage.

2. Indictment and Information Key 7

Preindictment delay of three years and ten months

between termination of conspiracy to defraud the United

States by overbilling government agency on cost-plus contracts

did not prejudice defendants’ right to a fair trial where delay

was not related to any government misfeasance and defendants

failed to support contention that corporate records that had

been accidentally destroyed would have exonerated them.

18 U.S.C.A. 8 8 286, 287, 3282.

3. Criminal Law Key 432

Rule of evidence treats summaries as evidence under

circumstances where, in the court’s discretion, examination of

the underlying documents in a trial setting cannot be done

conveniently. Federal Rules of Evidence, rule 1006, 28 U.S.C.A.

4. Criminal Law Key 429(1)

Trial court did not err in admitting FBI computer print-

outs where court admitted the underlying documents and

instructed jury that summaries were not evidence. Federal Rules

of Evidence, rule 1006, 28 U.S.C.A.

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5. Criminal Law Key 432

Inasmuch as summaries are elevated under rule of evidence

to the position of evidence, care must be taken to omit

argumentative matters in their preparation lest the jury believe

that such matter is itself evidence of the assertion it makes.

Federal Rules of Evidence, rule 1006, 28 U.S.C.A.

6. Criminal Law Key 632

Framers of rule of evidence providing for admission of

summaries contemplated a pretrial resolution of any issues

that may be raised concerning the use of summaries. Federal

Rules of Evidence, rule 1006, 28 U.S.C.A.

7. Criminal Law Key 713

Court will consider errors regarding improper closing

argument in the context of the entire record to determine

whether the substantial rights of an accused were affected.

Fed. Rules Crim. Proc. rule 52(a’ 18 U.S.C.A.

8. Criminal Law Key 1171.1(3)

Prosecutor’s closing argument in prosecution for con-

spiring to defraud and defrauding the United States by

overbilling government agency on cost-plus contracts that

tax money was involved, although unprofessional and improper,

was harmless where court sustained objection and gave appro-

priate cautionary instruction and evidence against defendants

was strong. 18 U.S.C.A. § 8 286, 287; Fed. Rules Crim. Proc.

rule 52(a), 18 U.S.C.A.

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Appeals from the United States District Court for the

Northern District of Texas.

Before GOLDBOLD, TJOFLAT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

Appellants Lewis Smyth and Glenn Bavousett are former

officers of Norman Harwell Associates, Inc. (NHA), a corpora-

tion engaged in the preparation and publication of technical

materials. They were charged in an eight count indictment with

conspiring to defraud / and with defrauding -2/ the United

States by overbilling the United States Army Aviation Material

Command (AVSCOM) on two cost-plus contracts 3/ which

NHA had with AVSCOM. The overbilling was allegedly done

intentionally by appellants and other officers and employees of

NHA who systematically replaced the company’s original

employee labor distribution cards with a set of forged cards

on which time formerly bille? by NHA to private clients was

shown as having been spent on AVSCOM work. The appellants

were tried and convicted along with other participants in the

scheme and sentenced to concurrent five-year terms of imprison-

ment on each count.

On appeal appellants’ principal arguments are (1) that the

JY! 18 U.S.C. § 286 (1970).

2/ jd. 8287.

3/ Under the contracts NHA agreed to develop, write and deliver

certain technical manuals to AVSCOM at an agreed composite billing rate

for each type of employee who worked on the contracts. The rate was

designed to include labor, overhead and profit. Thus NHA was required to

keep track of the time employees spent on AVSCOM work and then to

bill AVSCOM at the composite rate for the total hours.

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lengthy pre-indictment delay denied them due process, (2) that

the lower court erred in admitting into evidence certain FBI

computer printouts, and (3) that the prosecutor's closing

argument was improper and denied them a fair trial. A/ We

reject each of these arguments and affirm.

I. Pre-Indictment Delay

The indictment was returned on August 7, 1975. In Count I

it charged a conspiracy running from June 28, 1968, through

September 15, 1971, while Counts II through VIII charged

substantive offenses based on false billings during 1970. (These

false billings constituted some of the overt acts specified in the

conspiracy count.) Thus, there was a period of three years and

ten months between the termination of the conspiracy (the

most recent offense) and the return of the indictment. Though

they concede that the indictment was returned well within the

five-year statute of limitations period, -2/ appellants claim that

under United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct.

455, 463, 30 L.Ed.2d 468, 478-79 (1971), the indictment

should nonetheless have been dismissed because the delay

substantially prejudiced their right to a fair trial. The prejudice

is said to have resulted from the accidental destruction by NHA

employees of certain corporate records in 1973, including

certain computer printouts, which appellants claim might have

4/ Appellants also question the sufficiency of the evidence, the trial

court’s failure to grant their severance motions, the FBI’s refusal to discuss

the case with them, and certain jury instructions. We have examined each

of these claims of error and find them to be totally without merit.

5/ 7a. 8 3282.

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demonstrated that the AVSCOM billings were not inflated. &/

While it is admitted that the Government did not destroy these

records, appellants argue that the Government knew of the

records’ existence and importance and thus was negligent in

failing to insure their safe keeping.

[1] We reject this argument for two reasons. First, the law

identifies two factors which must be considered in evaluating a

complaint of pic-indictment delay: (1) that defendant incurred

substantial prejudice as a result of the government's delay, and

(2) that the prosecution had intentionally employed the delay

to gain a tactical advantage. United States v. Avalos, $41 F.2d

1100, 1107 (Sth Cir. 1976). See also United States v. Duke,

527 F.2d 386 (Sth Cir. 1976); United States v. Butts, 524 F.2d

975 (Sth Cir. 1975). But see Gravitt v. United States, 523 F.2d

1211, 1216 (Sth Cir. 1975) (“negligence is counted against the

government but is weighted less heavily’). There has not even

been an allegation here that the delay was “an intentional

device to gain tactical advantage over the accused.’ Marion,

404 U.S. at 324-25, 92 S.Ct. at 465, 30 L.Ed.2d at 478-79.

The record clearly shows that, while the Government investiga-

tion of NHA began in 1971, it was not until April 1975 that a

witness came forward and related to investigators how the fraud

was perpetrated. Prior to that time the FBI knew that NHA’s

records had been tampered with but did not know who the

culprits were. Thus, the delay in the present case was in no way

&/ The appellants and the other officers and employees of NHA who

were involved in the fraudulent billing scheme left NHA in 1971 and

were thus not involved in the subsequent destruction of the records. The

records were simply thrown out to provide needed working space, and

the NHA employees in charge were under the impression that the records

were no longer important.

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—

related to any Government misfeasance. -/

[2] Second, even if the Government had been responsible

for the pre-indictment delay, we believe that appellants have

failed to show substantial prejudice. The fact is that, while

appellants claim the missing records would have exonerated

them, their proffer failed to support their contention. Indeed,

the record indicates that all the pertinent records were before

the court. The original set of employee time cards and the

forged set were placed in evidence, as were the computer runs

which tied the forged set of cards into the vouchers presented

to AVSCOM. These were the critical source materials, for they

clearly demonstrated that someone copied the original cards

submitted by the employees and changed them to show addi-

tional work being performed on AVSCOM contracts. They

also established that AVSCOM was subsequently billed on the

basis of these forged cards. Absent some explanation as to

how the destroyed computer printouts could have placed an

innocent light on the forged cards and the billings based on

these cards, appellants’ claim that they were prejudiced is

speculative at best and clearly insufficient to demonstrate

prejudice. See, e.g., Butts, 524 F.2d at 977; United States v.

McGough, 510 F.2d 598, 604 (Sth Cir. 1975).

II. The FBI Computer Printouts

At trial two sets of computer printouts prepared by the FBI

were introduced into evidence by the Government. One set

y Appellants characterize the Government’s conduct as negligent;

however, the alleged negligence relates to the failure of investigators to

seize the documents which were later destroyed. At no point did the

appellants make a showing that the Government’s negligence caused the

pre-indictment delay.

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tabulated the information disclosed by the employee labor

distribution cards - the originals and the forged cards - to show

the discrepancies between them. Over each column of the first

group of printouts was a heading, and the inside cover of the

exhibit contained a key which explained the meaning of each

heading. The key was as follows:

MEANING OF HEADINGS

LISTING HEADER DESCRIPTION

Voucher Hours = Billed by NHA per Voucher

No Time Card Support

Worked Hours = Original Time Taken From

Time Cards

Billed Hours = False Time Taken From

Time Cards

Amount of Voucher = Billed by NHA per Voucher

No Time Card Support

Amount for Hours Worked = Original Cost Supported by

Time Cards

The second set of printouts tabulated the information on the

billings submitted to AVSCOM and cross-referenced this infor-

mation to the original and forged employee distribution cards.

The exhibit was designed to show as to each voucher how much

time the Government was charged for in excess of the time

actually spent on AVSCOM work. The printouts contained

columns with the following headings: “original data,”’ “falsified

data,” “falsified data summarized,” and “difference between

original/false.”’

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Appellants objected to the use of the two sets of printouts

on the ground that the column headings and the explanatory

key constituted improper conclusions which invaded the

province of the jury. The objection was overruled, and the

exhibits were admitted. In charging the jury at the end of the

trial, the court instructed that these computer printouts were

not evidence and were only received as summaries of the labor

distribution cards - original and forged - and the billings, which

were in evidence. Appellants contend that this instruction

failed to cure the error earlier committed in allowing the jury

to be exposed to the conclusory matter appearing on the

printouts.

The evidentiary use of summaries at trial is controlled by —

Fed. R. of Evid. Rule 1006, which provides:

The contents of voluminous writings, recordings or

photographs which cannot conveniently be examined

in court may be presented in the form of a chart,

summary, or calculation. The originals or duplicates,

shall be made available for examination or copying,

or both, by other parties at reasonable time and

place. The court may order that they be produced in

court.

Prior to the adoption of Rule 1006 the law governing the

evidentiary status of summaries and therefore their use was

unsettled. Striking differences had developed within and among

the circuits, no doubt causing the district courts to resort to

various approaches in handling summaries at trial. In theory

the scope of judicial treatment ranged from the view that

summaries were not evidence, see e.g., Conford v. United States,

8/ The new Federal Rules of Evidence became effective on July 1,

1975, prior to the trial of this case.

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336 F.2d 285, 288 (10th Cir. 1964), to the view that they were.

See e.g., Hartford Accident and Indemnity Co. v. Collins

Dietz-Morris Co., 80 F.2d 441 (10th Cir. 1935). Among the

opinions treating summaries as evidence the more liberal school

required no underlying documents to be received in evidence

as a foundation for the summaries. All that was required was

that the underlying documents be made available to opposing

counsel for cross-examination purposes. See e.g., In re Shelley

Furniture, Inc., 283 F.2d 540, 543 (7th Cir. 1960). The sum-

maries were therefore given an independent evidentiary

significance and could be introduced on the strength of the

preparer’s foundation testimony, thereby avoiding the need to

receive voluminous documentary evidence at trial. 2/ Under

9/ This approach is in keeping with liberal common law treatment of

summaries espoused by Professor Wigmore:

Where a fact could be ascertained only by the inspection

of a large number of documents made up of very numerous

detailed statements - as, the net balance resulting from a

year’s vouchers of a treasurer or a year’s accounts in a bank

ledger - it is obvious that it would often be practically out of

the question to apply the present principle by requiring the

production of the entire mass of documents and entries to be

perused by the jury or read aloud to them. The convenience

of trials demands that other evidence be allowed to be offered,

in the shape of the testimony of a competent witness who has

perused the entire mass and will state summarily the net result.

Such a practice is well established to be proper.

Most courts require, as a condition, that the mass thus

summarily testified to shall, if the occasion seems to require it,

be placed at hand in court, or at least be made accessible to

the opposing party, in order that the correctness of the evi-

dence may be tested by inspection if desired, or that the

material for cross-examination may be available .. .

4 Wigmore § 1230 (4th ed. 1950).

Wigmore’s view was codified by Rule 1006. See Rules of Evidence,

56 F.R.D. 183, 345-46 (1972). (Advisory Committee’s Note.)

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the most restrictive view summaries were never accorded the

position of evidence. Rather, they were treated as jury aids

designed to clarify voluminous documentary evidence already

in the record and to provide a manageable perspective for the

jury in its deliberations. Juries were not permitted to see the

summaries unless every fact reflected was established by evi-

dence in the record. See, e.g., United States v. Moody, 339 F.2d

161 (6th Cir. 1964); Hoyer uv. United States, 223 F.2d 134

(8th Cir. 1955).

One viewing the Fifth Circuit opinions cannot clearly

ascertain its position regarding the status of such summaries

either. This Court has sometimes followed the liberal view:

on occasion it has followed the more restrictive view. Compare

Greenhill v. United States, 298 F.2d 405 (5th Cir. 1962) and

New Amsterdam Casualty Co. v. W. D. Felder and Co., 214

F.2d 825 (5th Cir. 1954) with United States v. Prevatt, 526

F.2d 400, 404 (Sth Cir. 1976) and United States v. Diez, 515

F.2d 892, 905-06 (Sth Cir. 1975), cert. denied, 423 U.S. 1052,

96 S.Ct. 780, 46 L.Ed.2d 641 (1976). 10/

10/ Prior to the implementation of the new Federal Rule this court’s

application of common law principles governing the reception of sum-

maries as evidence varied. We have, for example, referred to such sum-

maries as either “primary proof” or “secondary proof” in approving trial

court treatment of summaries as evidence. See McDaniel v. United States,

343 F.2d 785, 789 (5th Cir.), cert. denied, 382 U.S. 826, 86 S.Ct. 59,

15 L.Ed.2d 71 (1965); Azcona v. United States, 257 F.2d 462 (5th Cir.

1958). At times we have required that the underlying source documents

be in evidence before the summaries could properly be received. Mc Daniel,

supra. We have also predicated admissibility on a mere showing that such

underlying sources were made available for inspection by the opposing

side. Cooper v. United States, 91 F.2d 195 (5th Cir. 1937); New Amster-

dam Cas. Co. v. W. D. Feldon & Co., 214 F.2d 825 (5th Cir. 1954). These

variations in the treatment of summaries are manifested by the inconsis-

tent references to them as either “competent evidence”, Ward. v. United

States, 356 F.2d 938 (5th Cir. 1966); Barrick v. Pratt, 32 F.2d 732 (5th

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[3] Prior uncertainties regarding the status of summaries are

now resolved by Rule 1006. Although the word “evidence”

does not appear in its text we construe the mule as treating

summaries as evidence under circumstances where, in the

court’s discretion, examination of the underlying documents in

a trial setting cannot be done conveniently. This construction

is compelled by the rule’s history and by the fact that the rule

requires only the availability of the underlying documents.

[4-6] That the court below did not apply the rule so as to

receive the summaries in evidence is understandable in light of

the conflicting case law. We are convinced, however, that under

any application of Rule 1006 the use of these summaries at

trial was not error. In applying the rule the trial court followed

. the most restrictive approach indicated in our prior opinions.

This approach, from the appellants’ perspective, was calculated

to be the least prejudicial. The court could have excluded all

of the underlying documents and received the summaries as

evidence. The court chose, however, to admit these documents

in evidence and to instruct the jury that the summaries were not

10/ (Continued)

Cir. 1929), or useful tools through which a jury can more readily compre-

hend the underlying evidence. United States v. Diez, 515 F.2d 892, 905-

06 (5th Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d

641 (1976); United States v. Lawhon, 499 F.2d 352, 357 (5th Cir. 1974),

cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 820 (1975).

Through this disaccord we recently held that such summaries may be used

only where the jury is instructed that the summaries themselves are not

evidence. See United States v. Prevatt, 526 F.2d 400, 404 (5th Cir. 1976);

Diez, supra; Lawhon, supra. But see EAC Credit Corp. v. King, 507 F.2d

1232 (5th Cir. 1975).

evidence. LL/ Moreover, in light of appellants’ objections to the

characterizations the Government utilized in the summary

headings the cautionary instruction given by the trial judge was

entirely appropriate, if not necessary, for it neutralized their

possible prejudicial effect. Thus, whether or not the trial court

had received the summaries as evidence under Rule 1006,

the cautionary instruction, insofar as it emphasized that the

characterizations were not evidence, would have made the

remainder of the summaries admissible under the rule. 12/

In fine, we reject appellants’ claim that the district court's

treatment of the summaries unduly prejudiced their trial. In

permitting the jury to utilize them, the court proceeded well

within the discretion accorded it under Rule 1006. The original

and forged employee labor distribution cards were in evidence.

il Implicit in Rule 1006 is the rovion that a trial judge may choose

this alternative. In the circumstances of a given case the court may feel

that the jury, or the court, itself, in a bench trial, ought to consider the

source documents in resolving a fact issue and that, on balance, a sum-

marization of such evidence would add to or detract from the proper

weight or emphasis to be given it.

12/ We do not opine on the extent of error that would have been created

had these summaries and characterizations been received as evidence

without any cautionary instruction being given. It would seem, though,

that because summaries are elevated under Rule 1006 to the position of

evidence care must be taken to omit argumentative matter in their prepara-

tion lest the jury believe that such matter is itself evidence of the assertion

it makes. See Ping v. United States, 407 F.2d 157, 160 (8th Cir.) cert.

denied, 395 U.S. 926, 89 S.Ct. 1784, 23 L.Ed.2d 244 (1969); Lioyd v.

United States, 226 F.2d 9, 17 (5th Cir. 1955). We think that the framers

of the rule clearly contemplated a pre-trial resolution of any issues that

may be raised concerning the use of summaries. By requiring that the

underlying documents be made available to opposing counsel, the rule

encourages counsel to eliminate objectionable matter and to stipulate to

the form of the summary. Through this process the frequency of objec-

tions such as those raised here should be greatly reduced.

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The computer printouts merely tabulated the information they

disclosed. As for the headings, they accurately explained the

significance the Government attached to the tabulations. In this

sense the headings reflected certain assumptions, but these

assumptions were amply supported by the evidence already

before the jury. By instructing the jury that the summaries were

not evidence, however, the trial judge took one further step to

insure that the jury would not rely on the conclusory matter as

independent proof of the appellants’ guilt.

IIT. The Prosecutor’s Closing Argument

During his closing argument the prosecutor said: ““You want

to say we approve of this type of conduct in dealing with the

Government? Let Uncle Sam take the ride, but when you

think about that, think of that, that’s your tax money, that’s

your tax money being kicked in here.” Appellants submit

that this argument was an improper attempt to appeal to the

personal prejudices of the jurors as taxpayers and that it was so

prejudicial they were denied a fair trial.

[7, 8] We view the prosecutor’s pitch as an unprofessional

and highly improper appeal to the passion and prejudices of the

juror. See Handford v. United States, 249 F.2d 295 (Sth Cir.

1957); ABA Standards Relating to the Administration of

Criminal Justice, The Prosecution Function § 5.8(c) (1972).

But we must consider errors of this sort in the context of the

entire record to determine whether or not the substantial rights

of an accused were affected. See Handford, supra; Fed. R.

Crim. P. 52(a). In the present case, the court sustained the

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objection and gave an appropriate cautionary instruction. 13/

More importantly, though, unlike the situation in Handford,

this clearly was not a close case. The evidence against appellants

was strong, and we are therefore convinced that the error was

harmless.

AFFIRMED.

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1977, by WEST PUBLISHING CO.

The Snyopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

13/ The court instructed the jury as follows:

Members of the jury, are are not to consider that statement

for the reason that it’s a personal appeal to you. It’s alright for

him to argue that tax money is paying for it but [not] the

portion about your tax money hurting you. It will not be

considered by you because you’re not supposed - you're

supposed to view the matter impartially. Record at 1107-08.

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