Petition — Hinton v. United States

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RECEIVED

No. 3Q.533] |] AuG 31 1982

Orocins

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witht UF THE CIERK _

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JAMES LEE HINTON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Ronald F. Neville

221 North LaSalle Street

Suite 2114

Chicago, Illinois 60601

Richard D. Trainor

221 North LaSalle Street

Suite 1812

Chicago, Illinois 60601

COUNSEL FOR PETITIONER

QUESTION PRESENTED

WHETHER PETITIONER, AN EMPLOYEE OF A PRIVATE, NON-PROFIT

ORGANIZATION THAT WAS THE SUB-GRANTEE OF COMMUNITY DEVEL-

OPMENT BLOCK GRANT FUNDS, WAS A PUBLIC OFFICIAL WITHIN

THE MEANING OF TITLE 18 UNITED STATES CODE §201 (a).

TABLE OF CONTENTS

PRAYER o . . . . . . . . . . . . . . . . . . . . . 1

OP IN ION BELOW . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURSIDICTION .. + + © © © © © © «© « 2

STATUTORY PROVISIONS . . + «© © © © © © © © © #© © # 2

STATEMENT OF CASE. . «© «© © «© © © © © © © © © © # @ 4

REASONS FOR GRANTING THE WRIT ... + © © © «© «© « 6

ke

The decision of the Seventh Circuit Court of

Appeals has broadened the definition of "public

official" within the meaning of Title 18 United

States Code §20l(a) in a manner that is contrary

to and irreconcilable with the decisions of an-

other federal court of appeals. ......++-. 6

3

The legislative history of Title 18 United

States Code §20l(a) establishes that Congress

never intended Section 201 to apply to one in

the position of Petitioner. . .. +. + + + «+s 9

CONCLUS ION . * * . . . *. . . * . . . . . . . . . . 1 1

APPENDIX:

A. Opinion of the Court of Appeals for the

Seventh Circuit, dated July 8, 1982.

B. Judgment of Seventh Circuit Court of

Appeals.

Ee

TABLE OF AUTHORITIES

CASES

United States v. Del Toro 513 F2 656

cert. denied. 423 U.S. 826 (1975) ..

United States v. Loschiavo 531 F2 659

conn Gat. terol 8 es 6 ee Oe

STATUTES

Title 18, United States Code, Section

Title 18, United States Code, Section

Title 18, United States Code, Section

201 (a).

201(b).

201(c).

Title 42, United States Code, Sections 5301-5320.

OTHER AUTHORITIES

United States Congressional and Adminstrative

News 3851 (1970) * . . . . . . . . . . * . . . . *

House Report 748, 87th Congress, 12th Session. . .

iii.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

JAMES LEE HINTON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PRAYER

The Petitioner, James Lee Hinton, respectfully prays

that a Writ of Certiorari issue to review the Judgment

and Order entered by the United States Court of Appeals

for the Seventh Circuit on July 8, 1982, affirming Petitioner's

conviction in the United States District Court for the

Central District of Illinois, Peoria Division.

OPINION BELOW

The Opinion of the United States Court of Appeals for

the Seventh Circuit, not yet reported, affirming the judg-

ment of conviction below, is attached hereto and appears

as Appendix A.

O . O

STATEMENT OF JURSIDICTION

The Petitioner, James Lee Hinton, appealed his

conviction in the United States District Court for the

Central District of Illinois, Peoria Division, to the

United States Court of Appeals for the Seventh Circuit.

On July 8, 1982 the United States Court of Appeals for

the Seventh Circuit affirmed the judgment of conviction.

This Petition for a Writ of Certiorari was filed within

60 days of that date. The jurisdiction of this Honorable

Court is invoked under 28 U.S.C. 1254(1) and Rule 17(1) (a)

and (c) of the Rules of this Court.

STATUTORY PROVISIONS INVOLVED

Title 18 Section 201(a) provides

For the purpose of this section:

“public official” means Member of Congress, the

Delegate from the District of Columbia, or Resident

Commissioner, either lefore 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; and

“person who has been selected to be a public

official" means any person who has been nominated

or appointed to be a public official, or has been

officially informed that he will be so nominated or

appointed; and

“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 official,

in his official capacity, or in his place of trust

or profit.

O . e

Title 18 Section 201(b) provides

Whoever, directly or indirectly, corruptly gives,

offers or promises anything of value to any public

official or person who has been selected to be a

public official, or offers or promises any public

official or any person who has been selected to be

a public official to give anything of vaule to any

other person or entity, with intent:

(1) to influence any official act; or

(2) to influence such public official or

person who has been selected to be a

public official to commit or aid in

committing, or collude in, or allow

any fraud, or make opportunity for

the commission of any fraud, on the

United States; of

(3) to induce such public official or

such person who has been selected

to be a public official to do or

omit to do any act in violation

of his lawful duty; of

Title 18, Section 201(c), United States Code Provides

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 him:

(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;

of

Shall be fined not more than $20,000

or three times the monetary equivalent

of the thing of vaule, whichever is

greater, or imprisoned for not more

than fifteen years, or both, and may

be disqualified from holding any office

of honor, trust, or profit under the

United States.

O : O

STATEMENT OF THE CASE

Petitioner James Lee Hinton, was named in an eleven

count indictment returned by a federal grand jury on

March 12, 1981. Petitioner was charged with bribery

under Title 18 United States Code §201(c)(1) and with

being an accessory to bribery under Title 18 United

States Code §201(c)(2). After a trial by jury Mr. Hinton

was found guilty on all Counts as charged in the indictment.2/

Judgment was entered on the verdict; the Petitioner

was committed to the custody of the Attorney General for

7 1/2 years on Counts I through VI. He was sentenced to

three years probation on Counts VIII through XI to commence

after parole on Counts I through VI.

The Seventh Circuit Court of Appeals entered an order

on July 8, 1982 affirming the conviction and judgment of

the District Court. 2/

The Defendant, James Lee Hinton, was at all relevant

times employed as Housing Rehabilitation Coordinator for

a community-based, non-profit organization called United

Neighborhoods Inc. (U.N.I.). In 1979 and 1980 the city

of Peoria, Illinois, was the recipient of a Community

Development Block Grant and a Metro-Reallocation Grant

from the United States Department of Housing and Urban

Development. The city received the grants pursuant to

i/ Co-defendant Arthur Dixon was also found guilty on all

counts as charged in the indictment.

2/ Arthur Dixon was a party to the appeal. His conviction

was similarly affirmed by the Seventh Circuit.

the Housing and Community Development Act of 1974, Title

42 United States Code §5301-5320 (Supp. III 1979) (The Act).

The grants were to be used for Community Development,

including the rehabilitation of housing. The city of Peoria

contracted with U.N.I. to administer these grant funds.

U.N.I. then solicted bids from local contractors to perform

rehabilitation on housing which met the requirements of the

Act. The contractors were paid for their work from the grant

funds directed to U.N.I. by the city of Peoria. U.N.I. had

to account to the city for the money it spent. The city

provided supervision and technical assistance to U.N.I.

The salaries of U.N.I. employees were paid from the grant

funds. U.N.I. personnel were hired by the U.N.I. Board

of Directors. The Department of Housing and Urban Development

did not provide supervision or direct U.N.I. or its employees.

Two contractors were the primary government witnesses

against Hinton and his co-defendant, Dixon. The contractors

testified that they paid kickbacks to Hinton and Dixon in

return for receiving housing rehabilitation contracts.

C e

REASONS FOR GRANTING THE WRIT

I

THE DECISION OF THE SEVENTH CIRCUIT COURT OP

APPEALS HAS BROADENED THE DEFINITION OF "PUBLIC

OFFICIAL" WITHIN THE MEANING OF TITLE 18,

UNITED STATES CODE §201(a) IN A MANNER THAT

IS CONTRARY TO AND IRRECONCILABLE WITH THE DECISIONS

OF ANOTHER FEDERAL COURT OF APPEALS.

The ruling of the Seventh Circuit Court of Appeals

rested on two factors, namely: 1) the extent of federal

involvement in the Community Development Bloc* Grant

Program and 2) James Hinton's position was such that

he had discretion in administering the expenditure of

funds which were federal in origin. Based on these

two factors the Court concluded Hinton was acting on

behalf of the United States and was therefore a “public

official" within the meaning of Title 18, United States

Code §201(a).

The Second Circuit Court of Appeals has had

occasion to define “public official” within the

meaning of 18USC §20i(a) in the cases of United

States v. Del Toro 513 F2 656 cert. denied 423 U.S.

826 (1975) and United States v. Loschiavo 531 F2 659

In Del Toro, the Defendant was charged with bribing

a public official in violation of 18USC §201(b). The

recipient of the bribe was a city employee who administered

a model cities program. The program was funded by a

federal grant to the city of New York. In addition,

the Department of Housing and Urban Development actually

-6-

C : C

supervised the model cities program to some extent. At

issue in Del Toro was whether the recipient of the bribe

was “public official” within §20l(a). The Court held

that he was not, finding that the controlling factor in

determining status as a “public official” was the employ-

ment relationship, if any, with the federal government.

The Second Circuit Court of Appeals reached the

same conclusion in Loschiavo, a companion case. On the

"public official" issue the Court stated:

The type of public project involved, or the amount

of federal funding entailed, may be important in

applying other parts of the statute, such as the

"Official Act” requirement of §201(b) (1), or the

“fraud .. . on the United States” requirement of

§201(b) (2), but for the purpose of deciding Morales’

Status as a “public official" under §20l(a) it is

not the aspects of the particular project which are

of the greatest significance, but the character and

attributes of his employment relationship, if any

with the federal government 531 F2 at 661.

The foregoing decisions of the Second Circuit stand

for the proposition that the test for determining status

as a “public official” under 18USC §201l(a) is whether

the particular individual has an employment relationship

with the federal government. Absent such a relationship

an individual cannot be considered within the purview

of §201(a).

Implict in the ruling of the Seventh Circuit in

the present case is that an individual can be a "public

official” within §201(a) without any employment relation-

ship with the federal government.

~ =

We respectfully submit that the broad construction

given Title 18 United States Code §201(a) by the decision

of the Seventh Circuit Court of Appeals is therefore

contrary to the decisions of another Federal Court of

Appeals. Accordingly it is essential that this Honorable

Court undertake to reconcile the decision in this pro-

ceeding and the decisions of another circuit on this

issue.

II.

THE LEGISLATIVE HISTORY OF TITLE 18 UNITED STATES

CODE §201(a) ESTABLISHES THAT CONGRESS DID NOT

INTEND §201(a) TO APPLY TO ONE IN THE POSITION OF

PETITIONER.

With respect to Section 201, Senate Report 2213

States:

The current bribery laws in Title 18, United States

Code §201-213 consist of seperate sections applicable

to various categories of persons - - - Government

employees Members of Congress, judges, and others. .

Section 201 would bring all these categories within

the purview of one section and make uniform the pro-

scribed acts of bribery, as well as the intent or

purpose making them unlawful.

The term “public official” is broadly defined to

include officers and employees of the three branches

of government, jurors and other persons carrying an

activities for or on behalf of the Government. U.S.

Code Cong. and Ad. News 3851 (1970).

With respect to the last category, the House Report

on Section 20l(a) states:

Subsection (a) the phrase, person acting for or on

behalf of .. . is used as in the present section 201

and 202 to include within the statutory coverage

those persons who perform activities for the government,

as for example, through a contractual relationship

H. Rep. 748 87 Cong. 12 Sess.

Petitioner was not an employee of the federal government.

He did not work under federal supervision and control. Nor

did he or his employer, U.N.I., stand in any contractual

relationship with the federal government. The contractual

relationship in this case existed between the city of

Peoria and Petitioner's employer, U.N.I. It is clear

from the Senate and House Reports that Congress intended

Section 201(a) to include officials and employees of the

federal government and their agents, within the ordinary

G : C

meaning of those terms. It is not apparent that Congress

intended Section 201(a) to be construed so broadly as to

include one in the position of Petitioner as a "public

official”.

It is respectfully submitted that Petitioner, as

an employee of U.N.I., was outside the perview of Title 18

United States Code §201(a).

-10-

CONCLUSION

For these reasons a Writ of Certiorari should issue

to review the judgment and opinion of the Seventh Circuit

Court of Appeals.

Respectfully submitted,

Ronald F. Neville

221 North LaSalle Street

Suite 2114

Chicago, Illinois 60601

Richard D. Trainor

221 North LaSalle Street

Suite 1812

Chicago, Illinois 60601

COUNSEL FOR PETITIONER

3n the

United States Court of Appeals

For the Seventh Cirrutt

Nos, 81-2206 and 81-2207

United STATES OF AMERICA,

Plaintif-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 Feeruary 9, 1982—Decipep JuLy 8, 1982

Before PELL, Circuit Judge, FAIRCHILD, Senior Circuit

Judge, and EscuBacu, 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-

rofit 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

-~

2 Nos. 81-2206 & 81-2207

Block Grant and a Federal Metro Reallocation Grant

from the United States Department of Housing and

Urban Development (HUD).' The Community Develop-

ment Block Grant program administered by UNI was

entirely sponsored by federal 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 from 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 gree 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-

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 recornmended that the amount of one

bid be lowered. Hinton also reassured Lilly that submit-

ting the bids was just a formality. Subsequently Lill

paid Dixson when he received his first check from UNI.

I. 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 receiving anything of value in

return for being influenced in the performance of any

official act. 18 U.S.C. § 201(cX1) (1976). Section 201(a)

defines “public official” to include 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, relying 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” hecause 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

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

nited States. In Mosley, we distinguished Loschiavo

and Del Toro as involving a separate statutory scheme

the “Model Cities” program) from that in Mosley (the

mprehensive ep impo and Training or “CETA”

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

-3A-

ob

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 Model Cities pro-

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

behalf 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

Community Development Block Grant program differs

significantly 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

programs 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 grant, the appli-

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

three-year comprehensive community development plan,

a detailed program of implementation, and a housing

assistance plan, that must be approved by the Secretary

prior to funding. /d. § 5304. The activities which may be

performed caiee a Community Development Block

Grant program are circumscribed in great detail. /d.

oo 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. /d.

-4A-

Nos. 81-2206 & 81-2207 5

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

inancial transactions of fund recipients. Jd. § 5504(g).

Pursuant to the statute, the Secretary of HUD has

issued extensive regulations governing Community De-

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

These regulations govern in detail grant procedures, as

well as program design, management, and administra-

tion. Specifically, section 570.204 governs eligible activi-

ties by private non-profit 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 pro-

cured by subgrantees and subrecipients. Jd. § 570.507.

Section 570.509 reserves to the Secretary a right of

access to all books, accounts, records, reports, files and

other a or property of subgrantees for the purpose

of making surveys, audits, examinations, — and

transcripts. Jd. § 570.509. Section 570.900 sets forth 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-

tained by recipients. Jd. § 570.900-.913.

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 fed

eral housing and urban development programs. Senate

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

munity development programs was designed to produce

a single, more comprehensive community development

— “primarily to insure that Federal funds would

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 —— 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

-SA-

6 Nos. 81-2206 & 81-2207

than to abdicate federal contro] over the substantive

aspects of the program. Thus, the statute, regulations,

and legislative hetery manifest Congress’ intent to pro-

mote efficient, effective federal supervision over the

Community Development Block Grant program. The

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

cere buttresses our conclusion that they were “pub-

ie 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, e.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. Supp. 1222 (S.D. Ind. 1975), aff'd without

opinion sub nom. United States v. Metro Management

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

Gallegos, 510 F. “yf 1112 (D.N.M. 19%1). 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 ievarsite to

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

80 (1942), the contractors favored by 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.

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

The authority of the appellants in relation to the fed-

eral government is closely analogous to the authority of

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

1222 (S.D. Ind. 1975), aff'd 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 competi-

tive bids on housing contracts under a federal program.

The corporation then submitted the three lowest bids to

HUD with a recomrnendation 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 guaranteed of

being awarded the contract by 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

operating the system to provide for the rehabilita-

tion of {UD properties. The mere fact that defend-

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

-7A-

8 Nos. 81-2206 & 81-2207

ployee 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(a),

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

the wpe ys | and power to influence or control the dis-

rsal of federal funds on behalf of HUD,* Accordingly,

inton and Dixson queltty as “public officials” within

the meaning of section 201(c).*

II. Sufficiency of the Evidence as to Hinton

Hinton's remaining objections on appeal may be briefly

addressed, Hinton tains 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. Roth 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, Bg. United States v, Arrowe.

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

1069 (1979), The requency with which the appellants effectu-

ated the solicited result relates to their control 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 not

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 Cornmittee. 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 indictrnent,’ 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 frorn 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, ti er 579 F.2d

1014 (7th Cir), cert. denied, 489 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(e1) 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:

ny for the commission of any fraud, on the United States, 18

U.S.C. § 201(¢)2) (1976) (emphasis added),

- 9A-

10 Nos, 81-2206 & 81-2207

ment officers a 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

+ haga cross-examination was not an abuse of discre-

tion,

Finally, Hinton appears to suggeat 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;

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 6730~Midweat Law Printing Co. Ine, Chicago—7-8-42-—400

~10A-

Opinion by Judge Pell

JUDGMENT — ORAL ARGUMENT

Gnited States Court of Appeals 1

For the Seventh Circuit

Chicago, I!linos 60604

ee Se Ee

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,

} Appeals from the United States

District Court for the Central

No s. 81-2206 and o. | cous of Illinois, Peoria

81-2207 No, 81-CR-10007

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

Defendants-Appellants. 4

_

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

Cour fer the__Costre? ___missrics of __22 24 n0%0

——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.

© : oO

No. $D-S33|

IN THE

SUPREME COURT OF THE UNITED STATERECEIVED

October Term, 1982

AUG 31 1982

OFFICE OF THE CLERK

JAMES LEE HINTON, SUPREME COURT, U.S.

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The Petitioner, James Lee Hinton, asks leave to file

the attached Petition for Writ of Certiorari without pre-

payment of costs, and to proceed in forma pauperis pursuant

to 46(1) of the Rules of this Court.

Petitioner sought leave to appeal in forma pauperis

in the United States District Court for the Central District

of Illinois, Peoria Division. Leave was granted by the

District Court. Appellate counsel was subsequently appointed

pursuant to the Criminal Justice Act of 1964, as amended,

by the United States Court of Appeals for the Seventh Circuit.

Ronald F. Neville

221 North LaSalle Street

Suite 2114

Chicago, Illinois 60601

Richard D. Trainor

221 North LaSalle Street

Suite 18612

Chicago, Illinois 60601

COUNSEL FOR PETITIONER

.

D | Go oepecenve”

QUINLIVAN & TRAINOR R

ATIOGMNLYS AT LAW .

221-N, LaSalle Sireet, Suite 1812 SEP -4 1982

Chicago, Ilinois 60601

— OFFICE OF THE CLERK

eee SUPREME COURT, U.S.

August 30, 1982

Office of the Clerk

Supreme Court of the United States

Washington, D. C. 20543

RE: James Lee Hinton v. United States of America

Dear Sir:

Pursuant to United States Supreme Court Rule 28.2, please

be advised that I did, on August 30, 1982 at approximately

11:00 a.m., deposit in a United States Post Office with

first-class postage prepaid and properly addressed to the

Clerk of the United States Supreme Court, 10 copies of a

Petition for Writ of Certiorari in the above-captioned

cause. By causing this mailing on August 30, 1982 as

Stated above, the Petition for Writ of Certiorari was

filed within the permitted time as set out in United

States Supreme Court Rule 20.1.

truly yours,

RONALD F. NEVILLE

I, RONALD F,. NEVILLE, having been first duly sworn,

state that I have read the above and is true and correct.

SU8SCRIBED AND SWORN to

before me this 30th day

of August, 1982.

Notary Public

—-——-—

(D | ©

QUINLIVAN & TRAINOR

ATTORNEYS AT LAW : RECEIVED

221 N. LaSalle Street, Suite 1812

SEP -1 1982 |

Chicago, Illinois 60601

OFFICE OF THE CLERK

SUPREME COURT, U.S.

(312) 346-3180

Office of the Clerk

Supreme Court of the United States

Washington, D.C. 20543

RE: James Lee Hinton vs. United States of America

I hereby certify that on the 30th day of August, 1982

three copies of the Petition for Writ of Certiorari were

mailed, postage prepaid to Assistant United States Attorney

Terry G. Harn, Peoria, Illinois and the Solicitor General,

Washington, D.C., Counsel for Respondent.

In addition a copy was mailed to Donald V. Marano,

Ronald F. Neville

221 North LaSalle Street

Suite 2114

Chicago, Illinois 60601

Attorney for Arthur Dixon.

SUBSCRIBED AND SWORN to

before me this 30th day

of August, 1982.

SS yeu

Notary Public