Petition — Dixson v. United States

RECEIVED

AUG 2 4 1982

OrFiCe OF THE CLERK

SUPREME COURT, U.S.

No. ¥Q-59 4

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

UNITED STATES OF AMERICA

Ve

ARTHUR DIXSON, PETITIONER

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH COURT

DONALD V. MORANO,

\ Attorney

1231 Jarvis Avenue

Chicago, Illinois 60626

(312) 761-6201

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA

Vv.

ARTHUR DIXSON, PETITIONER

QUESTION

Whether an employee of a community-based, non-

profit corporation, under contract with a city to administer

a Community Development Block grant received from the U.S.

Department of Housing and Urban Development (HUD) is a

"public official” according to the federal bribery statute,

18 U.S.C. 201.*

*In addition to petitioner Arthur Dixson, James Lee

Hinton was an appellant in the United States Court of

Appeals for the Seventh Circuit.

TABLE OF CONTENTS

Table Of Authoritles.ccccceccceccesesescesvessscseseseee

Opinion Below. .cccccccccsccscsescsscccscsesesseseseseed

JUPISAICT1ION. coccceccsccsecesesscesvesesssesesesesseeed

Statute InNvOlvedeccccccccesccccesccsccsessesessesssseed

Statement .ccccccccccccsssssvccvccessesssvecessssseseseed

Reasons For Granting The Writ.cccccccccseccvcsecsseseeedD

CONCLUSION ccccccccccccccscevecsseccesseseseccesseeeelO

DEE MeciiwacboecesscossecococcscoccccccecoccclAnm10A

APPENdix BicccccccccccccescescevesesesesesseeeeseeeeelB

TABLE OF AUTHORITIES

CASES

Rewis v. United States, 401 U.S. 808, 812 (1971) - 7, 9, 10

Slater v. United States, 562 F.2d 58 (lst Cir. 1976) - 6, 7

United States v. Del Toro, 513 F.2d 656 (2d Cir.) cert. denied,

423 U.S. 826 (1975) - 5, 6, 7, 8, 9

United States v. Hollingshead, 672 F.2d 751 (9th Cir. 1981)

6, 7, 8

United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976) -

5, 7

United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) -

4, 8, 9

STATUTES

18 U.S.C. 201 - 3, 5, 6, 7, 8, 9

29 U.S.C. 801-822 - 4

42 U.S.C. 5301-5317 - 4

REGULATIONS

24 C.F.R. 570 (1980) - 5

LEGISLATIVE HISTORY

Senate Report No. 93-693 (1974) - 6

1974 U.S. Code Cong. & Ad. News 4273 - 6

OPINION BELOW

The slip opinion of the court of appeals is

provided in Appendix A, pp. 1A-10A. @

JURISDICTION

The judgment of the court of appeals (Appendix B,

p.- 1B) was entered on July 8, 1982. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATUTE INVOLVED

Section 201, the federal bribery statute (18

U.S.C.), provides in pertinent part:

(c) Whoever, being a public official or person

selected to be a public official, directly or

indirectly, corruptly asks, demands, exacts,

solicits, seeks, accepts, receives, or agrees to

receive anything of value for himself or for any

other person or entity, in return for:

(1) being influenced in his performance of any

official act; or

(2) being influenced to commit or aid in

committing, or to collude in, or allow, any

fraud, or make opportunity for the commission

of any fraud, on the United States; or

(3) being induced to do or omit to do any act in

violation of his official duty. ...

(a) For the purpose of this section:

"public official" means Member of Congress, the

Delegate from the District of Columbia, or

Resident Commissioner, either before or after he

has qualified, or an officer or employee or person

acting for or on behalf of the United States, or

any department, agency or branch of Government

thereof, including the District of Columbia, in

any official function, under or by authority of

any such department, agency, or branch of

Government, or a juror. .« « «+

“official act” means any decision or action on any

question, matter, cause, suit, proceeding or

controversy, which may at any time be’ pending, or

which may by law be brought before any public

offical, in his official capacity, or in his place

of trust or profit.

STATEMENT

After a jury trial in the United States District

Court for the Central District of Illinois, petitioner was

convicted op nine counts of violating the federal bribery

statute, 18 U.S.C. 201l(c) (1976). This conviction was based

«a @«

- on evidence that petitioner, while executive director of

United Neighborhood Incorporated (UN1), received kickbacks

from housing contractors in exchange for awarding contracts

to them (App. A, pp. 2A-3A). The court denied petitioner's

pre-trial, trial, and post-trial motions (R. 24, Tr. 261-62,

R. 46, respectively), because it rejected his contention

that as an empioyee of UNI he was not a “public official"

under Section 201.

l. During 1979 and 1980, the City of Peoria received

a total of more than $1 million via a Community Development

Block grant and a Federal Metro Reallocation grant from the

U.S. Department of Housing and Urban Development (HUD) (App.

A, pe. 2A) to rehabilitate homes in a depressed area of the

city (Tr. 123). [Both grants are governed by the Housing

and Community Development Act of 1974, 42 U.S.C. 5301-5317

(App. A, p. 2A n.1)). UNI entered into a contract with the

city to administer these grants (App. A, p. 1A). The city

required UNI to report back to it (App. A, p. 2A). The

entire management of these grants, however, was left to UNI,

with checks made payable to UNI and with the city neither

inspecting UNI's books nor having anything to do with

issuing housing contracts (App. A, p. 2A; Tr. 124, 127).

During his employment with UNI, petitioner had no contact

with the city, and all his duties were those assigned to him

by his superiors in UNI (Tr. 265).

2. The court of appeals affirmed petitioner's

conviction. It ruled that its decision in United States v.

Mosley, 659 F.2d 812 (7th Cir. 1981) was dispositive in

establishing that petitioner was a public official according

to Section 201 (App. A, p. 3A). Im Mosley the court held

that a study of the legislative history of the Comprehensive

Employment and Training Programs Act (CETA), 29 U.S.C. 801l-

822, manifests Congress's intent that the Secretary of Labor

bf

retain supervisory control over the programs administered

locally by prime sponsors. Id. at 815. Thus, although the

defendant was a state employee, he still was acting on

behalf of the federal government. Id.

Applying this standard, the court found that the

Housing and Community Development Act of 1974 provides for

substantial federal supervision over the cities and sub-

grantees responsible for administering grant funds (App. A,

p. 4A). The only evidence that the court gave for such

federal supervision, however, was extensive regulations

governing Community Block grants [i.e., 24 C.F.R. 570

(1980)] and the right of access to all books of sub-

grantees, retained by the Secretary of HUD (i.e., id.,

Section 570.509). (App. A, p. 5A).

The petitioner in his appeal argued, inter alia,

that he could not be convicted under Section 201, according

to Mosley, because the HUD program manager who had the duty

of overseeing the distribution of Community Block grants to

the City of Peoria during 1979 and 1980 testified that he

did not know, nor was he required to know, the identity of

the UNI or any other sub-grantee. The court rejected this

argument, saying that it attached no significance to this

testimony because it is "of little probative value in

assessing the pervasiveness of federa) regulation of the

program" (App. A, pe 8A n.3). Thus, the "federal

supervision" required for an individual to be a public

official under Section 201, according to Mosley, was

attenuated to mean "subject to pervasive federal regula-

tion."

REASONS FOR GRANTING THE WRIT

The court's holding is in direct conflict with the

Second Circuit in United States v. Del Toro, 513 F.2d 656

-

(2d Cir.), cert. denied, 423 U.S. 826 (1975) and United

States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976), and dicta

in United States v. Hollingshead, 672 F.2d 751 (9th Cir.

/ 1981) and Slater v. United States, 562 F.2d 58 (1st Cir.

1976). According to these cases, even if petitioner had

been an employee of the City of Peoria, he would not qualify

as a “public official” under Section 201. A fortiori, these

circuits would find, by strict logical implication, that

petitioner, who had no contact or dealings whatsoever with

the City of Peoria during his employement with UNI, was not

a “public official” according to Section 201.

In the instant case, the court acknowledged that

the Housing and Community Development Act of 1974

"consolidated into one program several community development

programs including the Model Cities program at issue in

Loschiavo and Del Toro. . ." (App. A, pe 4A). It argued,

however, that federal involvement in the Community Block

Grant program was significantly more extensive that it had

been under the Model Cities program, even though Senate

Report No. 93-693, which it cited (App. A, p. 5A), states

that this new block grant program of federal assistance to

local communities incorporated many features of the

Administration's revenue sharing Better Communitites Act and

guaranteed to local communities a two-year federal cycle,

"subject only to the meeting of minimum Pederal performance

standards.” 1974 U.S. Code Cong. & Ad. News 4273.

Even conceding, however, that the Community Block

Grant program of 1974, the successor to the Model Cities

program, bespeaks greater federal regulation than its

predecessor, still the court's decision contradicts these

cited cases. In Del Toro, 513 F. 2d 656, the Second Circuit

Court of Appeals held that an assistant administrator of a

federally funded Model Cities program did not fall within

the statutory definition of "public official” because he was

employed by_the city in a program administered through local

agencies, and, therefore, was not acting on behalf of the

federal government as required by Section 20l(c). Id. at

662. “He was a city employee, carrying out a task delegated

to him by his superior, another city employee.” Id. The

court held that a narrow construction of "public official"

was mandated to avoid altering sensitive federal-state

relations, in the absence of Congress's unambiguous

intention to do so, and to observe the requirement of

resolving any embiguity in criminal statutes in favor of the

defendant. Id., citing Rewis v. United States, 401 U.S.

808, 812 (1971).

In Loschiavo, 531 F. 2d 659, a case involving the

same official as in Del Toro, the court specified that the

test for determining whether a particular individual is a

"public official" under Section 201 is not the type of

public project or the amount of federal funding but "the

character and attributes of the individual's employment

relationship, if any, with the federal government." Id. at

661. The court suggested one practical way of making this

determination was whether any federal agency has the power

to hire or fire the individual in question. Id.

In Hollingshead, 672 F.2d at 753, the Ninth

Circuit Court of Appeals accepted the Second Circuit test

for determining whether a particular individual constitutes

a “public official" under Section 201 -- namely, “the

character and attributes of [the person's) . . . employment

relationship with the federal government." The court noted

that in Loschiavo and Del Toro the city official never dealt

directly with HUD since his tasks were delegated to him by

another city employee; consequently, he was not a public

official under Section 201,

In Slater, 562 F.2d at 61, while affirming

appellant's conviction under 41 U.S.C. 51-54, the Anti-

Kickback Act, the First Circuit Court of Appeals cited Del

Toro for the proposition that “it is doubtful that the

federal laws against bribery and extortion, 18 U.S.C. 201

‘and 872, can be applied to Model Cities employees."

In the instant case, the court followed Mosley,

659 F.2d at 815-16, and ruled that “public official" must be

given a broad construction in Section 201 to fulfill

Congress's intention of protecting the public from the evil

of corruption in public service (App. A, pe. 6A). By

implication it rejected the Second Circuit standard for

determining whether an individual serves as a public

official and held that petitioner's employment by the state

did not preclude a determination that he was acting on

behalf of the United States (App. A, p. 6A). Petitioner

was, of course, neither an employee of the State of Illinois

nor the City of Peoria but an employee of UNI, a non-profit

corporation under contract with the city.

According to the Second Circuit and dicta of the

First and Ninth Circuits, petitioner*would not qualify as a

public official if he had been a state or city official. A

fortiori, the court's holding that he was a public official

under the statute contradicts these other circuits. Applying

the test of Del Toro, 513 F.2d at 661, no federal agency had

the power to fire or hire petitioner. Applying the test of

Hollingshead, 672 at 754, petitioner never dealt directly

with HUD nor even the City of Peoria but solely with his

superiors in UNI,

l. Unless this Court grants petitioner's motion for a

writ of certiorari, the clear and irreconcilable conflict

between the circuits will allow some individuals to be

punished for conduct for which others will go free. Such

inconsistency in the interpretation of Section 201 violates

principles of fundamental fairness, equal protection, and

due process. Also, because this statute potentially affects

such a large number of individuals, it is urgent that this

court resolve the conflict between the circuits.

2. The court's ‘definition of who constitutes a public

. official under Section 201 is ambiguous and, therefore,

violates the constitutional requirement that criminal

statutes provide adequate notice. First, the court says

that petitioner is a public official because of substantial

federal supervision over cities and sub-grantees, which was

intended by Congress and specified in the Housing and

Community Development Act of 1974 (App. A, p. 4A). The

court, however, ruled that this requirement of substantial

federal supervision was met by "the pervasiveness of federal

regulation of the program," and it said it gave no

significance to the testimony of the HUD official who

administered the Community Development grant in question

that he neither knew of, nor had a duty to know, the

identity of UNI, or any other sub-grantee (App. A, p. BA

n.3).

In another place, the court stated that petitioner

was a public official because his salary and the entire cost

of the program were funded by the federal government for

federal objectives (App. A, pe. 6A). Finally, the court

ratified the broad interpretation it gave to Section 201 in

Mosley (App. A, p. 6A). It found petitioner a public

official because, as a federal agent, he had discretion to

administer federal funds (App. A, p. 6A) and had the

authority and power to influence or control the dispersal of

public funds (App. A, p. 8A).

3. This Court should grant petitioner's motion for a

writ of certiorari to determine whether Congress intended,

when it passed Section 201, to give federal courts criminal

jurisdiction over cases that heretofore have been left to

the states. According to Del Toro, 513 F.2d at 662, Section

201 must be given a narrow construction because "ambiguity

concerning the ambit of criminal statutes should be resolved

in favor of lenity.”" Rewis v. United States, 401 U.S. at

812. Because, however, the court has construed "federal

supervision” to mean "federal regulation” and virtually any

time the federal government disperses funds it also provides

relevant regulations, the court's expansive construction of

Section 201 in effect enables U.S. attorneys to prosecute

any person who is alleged to have committed fraud in

handling federal funds (e.g., state, city and local

governmental employees, building contractors, pharmacists,

physicians, and nursing home personnel).

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

Donald Vv Vpprans-

Donald V. Morano

Attorney for Petitioner

Arthur Dixson

1231 Jarvis Avenue

Chicago, Illinois 60626

(312) 761-6201

~—

ce :

United States Court of Appeals

Bor the Seventh Circutt

Nos. 81-2206 and 81-2207

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

v.

JAMES LEE HINTON and ARTHUR DIXSON,

Defendants-A ppellants.

Appeal from the United States District Court for the

Central District of Illinois, Peoria Division.

No. 81-CR-10007—Robert D. Morgan, Judge.

ARGUED FEBRUARY 9, 1982—DecipeD JuLy 8, 1982

Before PELL, Circuit Judge, AIRCHILD, Senior Circuit

Judge, and ESCHBACH, Circuit Judge.

PELL, Circuit Judge. The appellants, Arthur Dixson

and James Lee Hinton, were found guilty by a jury of

violating 18 U.S.C. § 201(cX1) and (2) by soliciting

money in exchange for the award of housing rehabilita-

tion contracts funded under the Housing and Commu-

nity Development Act of 1974, 42 U.S.C. §§ 5301-5320

(Supp. III 1979) (the Act). Dixson and Hinton were,

respectively, the Executive Director and Housing Re-

habilitation Coordinator of a community-based, non-

profit corporation called United Neighborhoods, Inc.

(UNI). Pursuant to the Act, UNI had entered into a con-

tract with the city of Peoria to administer federal funds

awarded to Peoria under a Community Development

1A

2 . Nos, 81-2206 & 81-2207

Block Grant and a Federal Metro Keallocation Grant

from the United States Department of Housing and

Urban Development (HUD).! The Community Develop-

ment Block Grant e ram administered by UNI was

entirely sponsored 7 fedora funds, which paid UNI's

costs as well as the salaries of its employees. The pri-

mary issue in these appeals is whether Dixson and Hinton

were “public officials” within the meaning of 18 U.S.C.

§ 201(c) (1976).

During 1979 and 1980, the city of Peoria received a

Community Development Block Grant and Metro Real-

location Grant from HUD. The purpose of these grants

was community development, including the rehabilita-

tion of residential structures. In accordance with the

Act and regulations pursuant to the Act, the city con-

tracted with UNI to administer the grant funds. For

housing that met the statutory and regulatory criteria

for the funds, UNI had the responsibility of soliciting

bids fromm contractors to perform the housing rehabilita-

tion. After the receipt of bids, the Housing Committee

of UNI was responsible for awarding the contract to the

successful bidder. There was testimony, however, from

several witnesses that contracts were awarded without

obtaining the approval of the Housing Committee. Suc-

cessful bidders were paid for their work by UNI from

the grant funds it had received from the city, which had

previously received the funds from HUD. UNI had to

account to the city for the expenditure of the federal

funds, and the city, in turn, was responsible for account-

ing to HUD for all funds it had received.

Ora Logsdon, a contractor who received several hous-

ing contracts from UNI, was the primary Government

witness against Dixson and Hinton. He testified that he

had received rehabilitation contracts for ten houses

from UNI pursuant to an agreement with Dixson and

' Both Community Development Block grants and Federal

Metro Reallocation grants are governed by the Housing and

Community Development Act of 1974. These grant programs

shall be referred to collectively as the Community Develop-

ment Block Grant program.

2A

“

_s

Nos. 81-2206 & 81-2207 3

Hinton to pay them 10% of the amount of each contract.

He said he would pay Dixson and Hinton their 10%

after cashing the checks he had received for his work

from UNI

Gerald Lilly, another contractor, testified that he had

been told by Dixson that he should pay 10% of the con-

tract price in order to receive a rehabilitation contract.

At one point Lilly met with Dixson and Hinton who

helped him prepare his bids. Hinton told Lilly on which

houses to bid and recommended that the amount of one

bid be lowered. Hinton also reassured Lilly that submit-

ting the bids was ust a formality. Subse vently id

paid Dixson when he received his first check from UNI,

1. Hinton and Dixson as “Public Officials”

Section 201(cX1) of 18 U.S.C. prohibits any “public

official” from directly or indirectly asking, demanding,

soliciting, accepting, or receivin anything of value in

return for being influence in the performance of any

official act. 18 U.S.C. § 201(e)(1) (1976). Section 201(a)

defines “public official” to inc ude any person “acting

for or on behalf of the United States or any department,

agency or branch of Government thereof.” 18 U.S.C.

§ 201(a) (1976). Both appellants, relyin primarily on

the decisions of the Second Circuit in United States v.

Loschiavo, 531 F.2d 659 (2d Cir. 1976), and United

States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied,

423 U.S. 826 (1975). assert that they cannot be consid-

ered “public officials” because they were not acting for

or on behalf of the United States.

This court's recent decision in United States v. Mosley,

659 F.2d 812 (7th Cir. 1981), is dispositive of the argu-

ments advanced by the appellants in support of their

sition that they were not acting for or on behalf of the

nited States. In Mosley, we istinguished Loschiavo

and Del Toro as involving @ separate statutory scheme

— “Model Cities” program) from that in Mos

mprehensive Employment and Training or “C

program). In light of the statute, regulations, and legis-

(the

TA”

3A

7 oe

4 Nos. 81-2206 & 81-2207

lative history of the CETA program, we concluded that

federal government involvement in the CETA program

was more substantial than that in the Mode) Cities pro-

ram, to the extent that Mosley was acting for or on

half of the United States in the CETA program. This

conclusion was buttressed by review of Mosley's position

within the federal program. Jd. at 814-15.

The present case involves a different statutory scheme

from that in Mosley, and, for that matter, from that in

Loschiavo and Del Toro. Although the Act consolidated

into one program several community development pro-

rams including the Model Cities program at issue in

schiavo and Del Toro, federal involvement in the

or on Development Block Grant program differs

meres from what it had been in the Model Cities

program. The Housing and Community Development

Act of 1974 provides for substantial federal supervision

over the cities and all sub-grantees responsible for local

distribution of grant funds. Two of the stated objectives

of the Act are “substantial expansion of the greater con-

tinuity in the scope and level of Federal! assistance” and

the “development of a national urban growth policy by

consolidating a number of complex and overlapping

rograms of financial assistance to communities of vary-

ing sizes and needs into a consistent system of Federal

aid.” 42 U.S.C. § 5301(bX2) and (d) (Supp. III 1979).

In order for an applicant to receive a Arent. the appli-

cant must submit to the Secretary of HUD, inter alia, a

three-year comprehensive community development plan,

a detailed program of a and a housing

assistance plan, that must be approved by the Secretary

prior to “pees Id. § 5304. The activities which ~ be

performed under a Community Development Block

Grant program are circumscribed in great detail. /d.

5305. In addition, annual performance reports must

submitted with an assessment of compliance with the

objectives of the Act. The Secretary is also directed to

make reviews and audits of the grantees’ programs on

at least an annual basis to determine whether the grant-

ees are meeting the federal standards and to adjust

federal funds in accordance with such findings. Jd.

4A

Nos. 81-2206 & 81-2207 Ls)

; 5304(d). The Secretary reserves the right to audit the

inancial transactions © fund recipients. Jd. § 4504(g).

Pursuant to the statute, the Secretary of HUD has

issued extensive regulations governing mmunity De-

velopment Block grants. 24 C.F.R. Part 570 (1981).

These regulations govern in detail grant procedures, as

well as program esign, management, and administra-

tion. Specifically, section 570.204 governs EN activi-

ties by private non- rofit entities such as UNI. 24 C.F.R.

570.204 (1981). Section 570.507 provides that OMB

ircular No. A-102 governs the procurement of mate

rials and services funded under the program and 4

cured by subgrantees and subrecipients. /d. § 570.507.

Section 570.509 reserves to the Secretary a right of

access to all books, accounts, records, reper. files and

other aye or property of subgrantees for the purpose

of making surveys, au its, examinations, excer ts, an

transcripts. Jd. § 570,509. Section 570.900 sets orth the

performance standards by which all recipients of funds

are to be evaluated by the Secretary, the reports to be

submitted by recipients and the records to be main-

uoed by recipients. Jd. § 570.900-.918.

Although the purpose of the Act was, in part, to allow

flexibility to local units in administering the grants, the

legislative history demonstrates that the Act was pri:

marily intended to improve federal supervision over ed-

eral housing and urban development programs. Senate

Report No. 93-693 notes that the consolidation of com-

munity development programs was designed to oe

a single, more comprehensive commun ty development

vag om “primarily to insure that Federal funds woul

used with a priority” to meet the objectives of the

Act. S. Rep. No. 93-693, 93d Cong., 2d Sess. 2, reprinted

in 1974 U.S. Code Cong. & Ad. News 4273, 4274. Under

the Community Development Block Grant program, as

under the CETA pie in Mosley, the federal funds

flow from the local sponsor to the recipient of a contract

rather than directly from the agency. Nevertheless, it is

clear from the legislative history of the Act, as it was in

the legislative history of CETA, that the purpose of this

procedure was to streamline the funding process rather

6 Nos. 81-2206 & 81-2207

than to abdicate federal contro) over the substantive

aspects of the hp Thus, the statute, regulations,

and legislative history manifest Congress’ intent to pro-

mote efficient, effective federal supervision over the

pce | Development Block Grant em.

extent of federal involvement is such that Dixson and

Hinton were acting on behalf of the United States in

their administration of the federal funds under the pro

gram.

Analysis of Dixson’s and Hinton's positions within the

rogram buttresses our conclusion that they were “pub-

ic officials” within the meaning of § 201(a. The sala-

ries of each and the entire cost of the program they

administered were funded by the federal government

for federal objectives. Their employment by the state

does not preclude a determination that they were acting

on behalf of the United States. See, ¢.g., United States v,

Mosley, 659 F.2d 812 (7th Cir, 1981); United States v.

Kirby, 587 F.2d 876 (7th Cir. 1978); United States v.

Griffin. 401 F. a 7 1222 (S.D. Ind. 1975), affd without

opinion sub nom. United States v. Metro Management

‘orp., 541 F.2d 284 (7th Cir. 1976); United States v.

Gallegos, 510 F. 5 1112 (D.N.M. 1981). Dixson, as

Executive Director of UNI, and Hinton, as UNI's Hous-

ing Rehabilitation Coordinator, were acting as federal

agents in the sense of having discretion in administer-

ing the expenditure of federal funds. In light of the

broad interpretation to be accorded section 201, United

States v. Mosley, 659 F.2d at 816, we conclude that Dix-

son and Hinton were acting on behalf of the United

States and, therefore, were “public officials.”

The appellants attach significance to testimony that

only the Housing Committee could award contracts.

However, there was also evidence Dixson and Hinton

had awarded contracts without the approval of the

Housing Committee. Indeed, apparently neither in deal-

ing with the contractors displayed any aspect of hypobu-

lia. Viewing the evidence in the light most favorable to

the Government, Glasser v. United States, 315 U.S. 60,

80 (1942), the contractors favored b the appellants

were successful in their bids, so that Dixson and Hinton

6A '

Nos. 81-2206 & 81-2207 7

were in effect authorizing the expenditure of federal

funds themselves. Even if they had not been able to

award contracts on their own, we question whether the

requirement of Housing Committee approval alone would

so attenuate the appellants’ authority to administer fed-

eral funds as to preclude their status as public officials.

United States v. Mosley, 659 F.2d at 816.

The authority of the a in relation to the fed-

era) ernment is closely analogous to the authority of

the defendant in United States v. Griffin, 401 F. Supp.

jy Ind. 1975), affd without opinion sub nom.

United States v. Metro Management Corp., 541 F.2d 284

(7th Cir. 1976), and the appellants’ attempts to distin-

guish that case are unpersuasive. In Griffin, the defend-

ant was the principal officer and agent of a corporation

awarded an area management broker contract by HUD.

The corporation was responsible for soliciting cornpeti-

tive bids on housing contracts under a federal program.

The corporation then submitted the three lowest bids to

HUD with a recommendation that the lowest bid be

accepted. Ordinarily the lowest bidder was awarded the

contract if the bid met the federal criteria and estimate

set by the area broker. The corporation received pay-

ment from HUD for each contract issued. As in the

instant case, the defendant in Griffin solicited a 10%

kickback for his favoritism in accepting bids although

he alone did not have technical authority to award con-

tracts. As the district court stated in finding the defend-

ant Griffin, as well as the corporation, to be persons

“acting for or on behalf of the United States”:

While the low bidder among those from which the

area broker solicited bids was not ae of

being awarded the contract 7 HUD, testimony

was presented that such low bidder was in fact

awarded the job at least 95% of the time. Thus the

Court feels that the defendants were placed in a

position of responsibility and were enabled to exer-

cise discretion to act for and on behalf of HUD in

cpereeor the system to — for the rehabilita-

tion of HUD properties. e mere fact that defend-

ant Jack Griffin, as President of MMC, is an em-

7A "s

wre —

8 _ Nos, 81-2206 & 81-2207

Ewes of the corporation and not of the United

tates does not prevent him from acting as a “pub-

lic official” as defined in 18 U.S.C. 201(as.

401 F. Supp. at 1230. Similarly, Dixson and Hinton had

the authority and power to influence or control the dis-

rsal of federal funds on behalf of HUD.* Accordin ly,

inton and Dixson a as “public officials” within

the meaning of section 201(c).*

II. Sufficiency of the Evidence as to Hinton

Hinton's ——— objections on appeal may be briefly

addressed. Hinton claims that he was entitled to acquit-

tal because there was insufficient evidence on all rele-

vant counts for the jury to find that Hinton awarded

any contracts, or that he accepted or solicited a bribe

from Gerald Lilly as alleged in Count X of the indict-

ment. Both objections are without merit.

On appeal the evidence must be viewed in the light

most favorable to the Government, together with all

reasonable inferences. As previously pointed out, the

testimony of Ora Logsdon was that he had been awarded

contracts which, according to other witnesses’ testimony,

* In emphasizing the extent to which contracts were actually

awarded based on Hinton's and Dixson's actions, we do not

intend to suggest that the solicitation of a bribe actually had

to have resulted in the award of a contract for a violation of

section 201 to have occurred. at. United States v. Arve

581 F.2d 649, 654 n.10 (7th Cir. 1978), cert. denied, 439 U.S.

1069 cere . The frequency with which the appellants effectu-

ated the solicited result relates to their contro) and discretion

over the funds and, thus, to the issue of whether they were

acting on behalf of the United States in their positions.

* We attach no significance to the testimony of James

Barnes, program manager of the Chicago area office of HUD,

that he was not specifically aware of UNI and was

required to be aware of its existence. Mr. Barnes’ personal

knowledge of a specific subgrantee in a regional area is of lit-

tle probative value in assessing the pervasiveness of federal

regulation of the program.

BA

Nos. 81-2206 & 81-2207 9

had not been awarded by the Housing Committee. Logs-

don testified that he had been awarded ten contracts, and

that Hinton and Dixson had agreed to award him all

the contracts he could handle if he paid them kickbacks.

Oscar Penn, a member of the Housing Committee, testi-

fied that housing rehabilitation contracts were awarded

that had not been approved by the Committee. As to

Count X of the indictment,‘ there was testimony that

Hinton, with assistance from Dixson, told Lilly on which

houses to bid, that one bid had to be lower than he had

originally made it, and that the bids were simply a for-

mality. Lilly went to UNI’s office with $2,000.00 from

his first check from UNI, and paid the money to Dixson

who was in the office at that time. This evidence, and

the inferences which can be drawn therefrom, were suf-

ficient to sustain the jury verdict as to Hinton on all

counts.

III. The Cross-Examination of Ora Logsdon

Hinton objects to the district court's refusal to allow

him cross-examination of Logsdon for impeachment pur-

poses based on Logsdon’s purported misappropriation of

certain UNI funds. Generally a trial court has wide dis-

cretion to limit cross-examination, with the standard on

review for the adequacy of cross-examination on bias or

motive being whether the jury had sufficient informa-

tion to make a discriminating appraisal of the witness's

bias or motive. United States v. Fitzgerald, 579 F.2d

1014 (7th Cir.), cert. denied, 439 U.S. 1002 (1978).

Logsdon admitted to bribing Hinton and Dixson. He

was questioned in cross-examination about law enforce-

‘ Count X alone was predicated on 18 U.S.C. § 201(c\1) and

(2). Section 201(c)(2) prohibits a public official from, directly

or indirectly, asking, demanding, exacting, soliciting, seeking,

accepting, receiving or agreeing to receive anything of value

in return for being influenced to commit or aid in commit-

ting, or to collude in, or allow, any fraud, or make opportu-

nity for the commission of any fraud, on the United States. 18

U.S.C. § 201(cX2) (1976) (emphasis added).

9A

10 Nos. 81-2206 & 81-2207

ment officers having sought him out for information,

about denying any involvement in the bribery to the

officers, about his first interview by law enforcement

officials in his attorney's office, and about owing money

to the Government for unpaid taxes. The cross-examina-

tion made it clear that Logsdon was a party to the ille-

gal transaction and that he had been sought out by law

enforcement officials. This cross-examination was suffi-

cient to allow the jury to assess adequately Logsdon’s

bias or motive so that the district court’s limitation on

further cross-examination was not an abuse of discre-

tion.

Finally, Hinton appears to suggest that the indict-

ment was defective because it failed to allege how Hin-

ton was acting for or on behalf of the United States.

However, each count of the indictment alleged that Hin-

ton and Dixson, as employees of UNI, were involved in

accepting bids and awarding and administering con-

tracts between UNI and contractors for the rehabilita-

tion of housing under grant funds from HUD, a depart-

ment of the Government of the United States, to the city

of Peoria, pursuant to a contract between UNI and the

city. These allegations of the indictment were clearly

sufficient to apprise Hinton of the nature and elements

of the charge as set forth in Hamling v. United States,

418 U.S. 87, 117 (1974).

For the reasons stated herein the judgment of the dis-

trict court is as to both appellants on all counts

AFFIRMED.

A true Copy:

Teste:

er rn eww oe we re re ce me coos eee eee es cseeeecece

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 5730—Midwest Law Printing Co., Inc., Chicago—-7-8-82—400

10a

- hs

}UDGM ENT — ORAL ARGUMENT’

| United States Court of Appeals - me

For the Seventh Circuit

Chicago, Illinos 60604

oe Se a)

Before

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. THOMAS E. FAIRCHILD, Senior Circuit Judge

Hon. JESSE E. ESCHBACH, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

1 Appeals from the United States

District Court for the Central

No s. 81-2206 and "| rcp ep of Illinois, Peoria

81-2207 No. 81-CR-10007

JAMES LEE HINTON and ARTHUR DIXSON, : Robert D. Morgan, Judge

Defendants-Appellants.

_

This cause was heard on the record from the United States District

Court for the peatees District of $2 1inois

Peoria Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND ADJUDGED by

this Court that the judgment of the said District Court in this cause appealed

from be, and the same is hereby, AFFIRMED as to both appellants on all

counts, in accordance with the opinion of this Court filed this

date.

18

a

IN THE SUPREME COURT OF THE UNITED STATE

OCTOBER TERM, 1982

no. ¥32-S979

a

UNITED STATES OF AMERICA

Vv.

ARTHUR DIXSON, PETITIONER

MOTION TO PROCEED IN FORMA PAUPERIS

RECEIVED

AUG 2 4 1982

Orrivt OF THE CLERK

SUPREME COURT, U.S,

Pursuant to Rule 46 of this Court, I, Donald V.

Morano, move for leave to proceed in forma pauperis as counsel

for Arthur Dixson in his petition for a writ of certiorari.

I have attached a photostatic copy of my appointment as

counsel for petitioner in his appeal before the Seventh

Circuit Court of Appeals.

Donald V. Morano

Attorney for Petitioner

Arthur Dixson

1231 Jarvis Avenue

Chicago, Illinois 60626

(312) 761-6201

i ll . C

~~

| —RECELFE

AUG 2 4 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S,

Bo-S377

AFFIDAVIT OF SERVICE

TO: Solicitor General

Department of Justice

Washington, D.C. 20530

I, Donald V. Morano, being duly sworn on oath,

depose and state that I served the foregoing Petition for a

Writ of Certiorari, in accordance with Rule 28(c), to the

above-mentioned individual at his respective address by

depositing in the United States mail at 55 East Monroe Street,

Chicago, Illinois, 60603, a true and correct copy thereof in

a sealed envelope, postage prepaid, on the 20th day of August,

Subscribed and sworn to

before me this 20th day

of August, 1982.

Bataro tH. Boast

Notary Public

, ARTHUR DIXSON

PROCEEDING (denerBe br ietty)

Appeal

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