Petition for Writ of Certiorari — Gaspard v. United States

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84-1152]

IN THE SUPREME COURT

OF THE UNITED STATES

NO.

NEWTON GASPARD,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

JOSEPH C. KOSAREK

FUNDERBURK, CONQUE © HERPIN

101 South St. Charles

Post Office Box 807

Abbeville, Louisiana, 70511-0807

Attorneys for Petitioner

Solicitor General

Department of Justice

Washington, D.C., 20530

Attorneys for Respondent,

United States of America

ai cata AK atm! S08 cece

QUESTIONS PRESENTED FOR REVIEW

Did the indictment

sufficiently charge the

crime of mail fraud in all

twelve counts?

The decisions by the Fifth

Circuit require greater

specificity in an

indictment than found

here.

Was sufficient evidence

presented to exclude every

reasonable hypothesis of

the defendant's innocence

and is mere breach of

fiduciary duty now

sufficient to constitute

mail fraud?

The decision of the

Fifth Circuit is at odds

with prior decisions of

the Fifth Circuit and

several other federal

circuits and requires

clarification.

Were the prosecutor's

closing remarks improper

and thereby deny defendant

ef his right to a fair

“£ial?

Again, the Fifth

Circuit. decision

herein is contrary to the

prior decisions of the

Fifth Circuit and of

several other federal

circuits and requires

Clarification.

Did the trial court

adequately present

defendant's theory of the

case to the jury?

The decision of the Fifth

Circuit in

this case is in conflict

with the prior decisions

of that Circuit and with

the decisions of several

other federal circuits and

requires clarification.

Was the cumulative effect

of several prejudicial

errors sufficient to deny

defendant his right to a

fair trial?

The Fifth Circuit decision

herein held that none of

the alleged errors were

prejudicial and ignored

their cumulative effect,

contrary to the prior

decisions of that circuit,

requiring clarification.

Was the restitution

statute, 18 U.S.C. 3579,

unconstitutionally applied

to this proceeding,

depriving defendant of a

fair trial?

This presents an important

question for review by the

Supreme Court of the

United States.

TABLE OF CONTENTS

Question Presented for Review

Table of Contents

Table of Authorities

The Ruling Below

Grounds for Jurisdiction

Statutes Involved

Statement of the Case

Argument

A. Insufficienty of Indictment

B. Insufficiency of Evidence

C. Improper Prosecutorial Comment

D. Jury Instructions

E. Other Prejudicial Errors and

Their Cumulative Effect

F. Restitution

Conclusion

Appendix

TABLE OF AUTHORITIES

STATUTES

18 U.S.C. 3579

18 U.S.C. 3580

P.L. 97-291

Federal Rule of Evidence,

Rule 1606, 28 U.S.C.

JURISPRUDENCE

United States vs. Ballard,

663 F. 426 334 (Stn Cir. 1961)

United States vs. Barta,

635 F. 2d 999 (2nd Cir. 1980)

United States vs. Bohonus,

628 F. 2d 1167 (9th Cir. 1980)

United States vs. Cauble,

706 F. 2d 1322 (5th Cir. 1983)

United States vs. Clark,

546 F. 2d 1130 (5th Cir. 1977)

United States vs. Conlin,

551 F. 2d 534 (2nd Cir. 1977)

United States vs. Dorr,

636 F. 2d 117 (5th Cir. 1981)

United States vs. Freeman,

619 F. 2d 1112 (5th Cir. 1980)

53,

46,

21,

United

States vs. Garza,

608 F.

United

2d 659 (5th Cir. 1979)

States vs. Gaspard,

747 F.

United

2d 438 (5th Cir. 1984)

States vs. Goss,

650 F.

United

2d 1336 (5th Cir. 1981)

States vs. Hable,

613 F.

United

2d 1321 (5th Cir. 1980)

States vs. Hammons,

566 F.

United

2d 1301 (5th Cir. 1978)

States vs. Howell,

719 F.

United

2d 1258 (5th Cir. 1983)

States vs. Kent,

608 F.

United

2d 542 (5th Cir. 1979)

States vs. Kreimer,

609 F.

United

2d 126 (5th Cir. 1980)

States vs. Labarbera,

581 F.

United

2d 107 (5th Cir. 1978)

States vs. Lewis,

592 F.

United

2q 1282 (5th Cir. 1979)

States vs. McDonald,

576 F.

United

2d 1350 (9th Cir. 1978)

States vs. McPhee,

731 F.

United

2g 1150 (5th Cir. 1984)

States vs. Mandel,

591 F. 2d 1347 (4th Cir. 1979)

United

States vs. Mastelotto,

717 F. 2g 1238 (9th Cir. 1983)

36,

15,

19,

22,

41,

23,

30,

vil

United States vs. Miller, 5}

715 F. 2d 1360 (9th Cir. 1983)

United States vs. Parker, 42

566 F. 2d 1304 (5th Cir. 1978)

United States vs. Rios, 38, 39

61l F. 2d 1335 (10th Cir. 1979)

United States vs. Rodriguez, 37, 40

585 F. 2d 1234 (5th Cir. 1978)

United States vs. Scales, 47

594 F. 2d 558 (6th Cir. 1979)

United States vs. Smyth, 34, 47

556 F. 2d 1179 (5th Cir. 1977)

United States vs. Swinehart, 38

617 F. 2d 336 (3rd Cir. 1980)

United States vs. Welden, 59

568 F.S. 516 (N.D. Ala. 1983)

United States vs. Wolfson, 4l

573 F. 2d 216 (5th Cir. 1978)

wee

IN THE SUPREME COURT OF THE UNITED STATES

No.

NEWTON GASPARD,

Petitioner,

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Comes now Newton Gaspard, who

petitions this Honorable Court to issue

the Writ of Certiorari to review the

ruling of the United States Court of

Appeals for the Fifth Circuit, and would

show unto the Court the following:

The Ruling Below.

This is a petition for the Writ

of Certiorari to review the decision of

the Court of appeals for the Fifth

Circuit, dated October 9, 1984, being

Docket No. 984-4233 in that Court, and

reported in the Federal Reporter as

744 yr. 438 , and that Court's

denial of a petition for rehearing and

suggestion for rehearing en banc on

November 7, 1984. The said Court refused

a stay of its mandate on November 26,

1984, and granted petitioner no further

time at all within which to file this

petition. The aforesaid rulings are

appended to this petition.

Grounds for Jurisdiction.

Petitioner was indicted in the

United States District Court for the

Western District of Louisiana for alleged

violations of 18 U.S.C. 1341, mail fraud.

Petitioner's conviction was appealed by

petitioner to the Court of Appeals for the

Fifth Circuit, which affirmed and denied

rehearing on the dates, supra. The

defendant in that prosecution, Newton

Gaspard, petitioner herein, brings this

petition to review by Certiorari the

action of the Court of Appeals. This

petition is brought pursuant to the

authority of the Supreme Court as set

forth in Title 28 U.S.C., 88 1254(1) and

2106.

Statutes Involved.

The statutory provisions at

issue herein are set out verbatim as

follows:

CONSTITUTION

te ON,

ease

'T Vi-JURY TRIAL FOR CRIMES, AND

PROCEDURAL RIGHTS

im all criminal prosecution, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the State and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the Assistance

of Counsel for his defence.

TITLE 18

CHAPTER 63-MAIL FRAUD

s 1341. Frauds and swindles

Whoever, having devised or

intending to devise any scheme or artifice

to defraud, or for obtaining money or

property by means of false or fraudulent

pretenses, representations, or promises,

or to sell, dispose of, loan, exchange,

alter, give away, distribute, supply, or

furnish or procure for unlawful use any

conterfeit or spurious coin, obligation,

security, or other article, or anything

represented to be or intimated or held out

to be such conterfeit or spurious article,

for the purpose of executing such’ scheme

or artifice or attempting so to do, places

in any post office or authorized

depository for mail matter, any matter or

thing whatever to be sent or delivered by

the Postal Service, or takes or receives

therefrom, any such matter or thing, or

knowingly causes to be delivered by mail

according to the direction thereon, or at

the place at which it is directed to be

delivered by the person to whom it is

addressed, any such matter or thing, shall

be fined not more than $1,000 or

imprisoned not more than five years, or

both.

TITLE 18

$3579. Order of restitution

(a) (1) The court, when

sentencing a defendant convicted of an

offense under this title or under

subsection (h), (3). 3). oF () of

section 902 of the Federal Aviation Act of

1958 (49 U.S.C. 1472), may order, in

addition to or in lieu of any other

penalty authorized by law, that the

defendant make restitution to any victim

of the offense.

(2) If the court does not order

restit:ition, or orders only partial

restitution, under this section, the court

shall state on the record t'i* reasons

therefor.

(b) The order may require that

such defendant--

(1) in the case of an

offense resulting in

damage to or loss of

destruction of

property of a victim

of the offense--

(A) return the property

to the owner of the

property or someone

designated by the

owner; or

(B) if return of the

property under

subparagraph (A) is

impossible,

ee ee ee

(2)

impractical, or

inadequate,

pay an

amount equal to the

greater of--

(1)

(ii)

(A)

the value of the

property on the

date of the

damage, loss, or

destruction, of

the value of the

property on

the date of

sentencing, less

the value (as of

the date the

property is

returned) of any

part of the

property that is

returned;

in the case of

an offense

resulting in

bodily injury to

a victim--

pay an amount

equal to the

cost of

necessary

medical and

professional

services and

devised

relating to

physical,

——

(3)

psychiatric,

and

psychological

care, ncluding

nonmedical care

and treatment

rendered in

accordance with

a method of

healing

recognized by

law of the place

of treatment;

(B) pay an amount

equal to the

cost of

necessary

physical and

occupational

therapy and

rehabilitation;

and

(Cc) reimburse the

victim for

income lost by

such victim as a

result of such

offense;

in the case of an

offense resulting in

bodily injury also

results in the death

of a victim, pay an

amount equal to the

cost of necessary

funeral and related

services; and

(4) in any cas?, if the

victim (or if the

victim is deceased,

the victim's estate)

consents, make

restitution in

services in

lieu of money, or

make restitution to a

person or

organization

designated by the

victim or the estate.

order restitution under this section, the

court shall, if the victim is deceased,

order that the restitution be made to the

victim's estate.

(d) The court shall impose an

order of restitution to the extent that

such order is as fair as possible to the

victim and the imposition of such order

will not unduly complicate or prolong the

sentencing process.

(e) (1) The court shall not

impose restitution with respect to a loss

for which the victim has received or is to

receive compensation, except that the

court may, inthe interest of justice,

order restitution to any person who has

compensated the victim for such loss to

the extent that such person paid the

compensation. An order of restitution

shall require that all restitution to

victims under such order be made before

any restitution to any other person under

such order is made.

(2) Any amount paid to a victim

under an order of restitution shall be set

off against any amount later recovered as

compensatory damages by such victim in--

(A) any Federal civil

proceeding; and

(B) any State civil

proceeding, to the

extent provided by

the law of that State

(£) (1) The court may require

that such defendant make restitution under

this section within a specified period or

in specified installments.

(2) The end of such period or

the last such installment shall not be

later than--

(A) the end of the period

of probation, af

probation is ordered;

(B) five years after the

end of the term of

imprisonment imposed,

if the court does not

order probation; and

date of sentencing

in any other case.

(3) If not otherwise provided

by the court under this subsection,

restitution shall be made immediately.

(g) If such defendant is placed

on probation or paroled under this title,

any restitution ordered under this section

shall be a condition of such probation or

parole. The court may revoke probation

and the Parole Commission may revoke

parole if the defendant fails to comply

with such order. In determining whether

to revoke probation or parole, the court

or Parole commission shall consider’ the

defendant's employment’ status, earning

ability, financial resources, the

willfulness of the defendant's failure to

pay, and any other special circumstances

that may have a bearing on the defendant's

ability to pay.

(h) An order of restitution may

be enforced by United States or a victim

named in the order to receive the

restitution in the same manner as a

judgment in a civil action.

TITLE 18

s3580. Procedure for issuing order of

restitution.

(a) The court, in determining

whether to order restitution under section

3579 of this title and the amount of such

restitution, shall consider the amount of

the loss sustained by any victim as a

result of the offense, the financial

resources of the defendant, the financial

needs and earning ability of the defendant

and the defendant's dependents, and such

other factors as the court deems

appropriate.

(b) The court may order’ the

probation service of the court to obtain

information pertaining to the factors set

forth in subsection (a) of this section.

The probation service of the court. shall

include the information collected in this

report of presentence investigation or in

a separate report, as the court directs.

both the defendant and the attorney for

the Government all portions of the

presentence or other report pertaining to

the matters described in subsection (a) of

this section.

(d) Any dispute as to the

proper amount or type of restitution shall

be resolved by the court by the

preponderance of the evidence. The burden

of demonstrating the amount of the loss

Sustained by a victim as a result of the

offense shall be on the attorney for the

Government. The burden of demonstrating

the financial resources of the defendant

and the financial needs of the defendant

and such defendant's dependents shall be

on the defendant. The burden of

demonstrating such other matters as the

court deems appropriate shall be upon the

party designated by the court as justice

requires.

(e) A conviction of defendant

for an offense involving the act giving

rise to restitution under this section

shall estop the defendant from denying the

essential allegations of that offense in

any subsequent Federal civil proceeding or

State civil proceeding, to the extent

consistent with State law, brought by the

victim.

RULES OF EVIDENCE

Rule 1006. Summaries

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.

Statement Of The Case.

This was a criminal proceeding

instituted in the United States District

Court for the Western District of

Louisiana by a twelve count indictment,

each count alleging a violation of 18

U.S.C. 1341, mail fraud. Counts I through

Voc the indictment alleged mail fraud

viol.tivuas by virtue of defendant's sale

of ..iecsel fuel to his employer, NL Baroid.

Counts VI through xX of the indictment

alleged mail fraud violations due to the

providing by defendant of tank cleaning

BEST AVAILABLE COPY

services to NL Baroid. Counts XV and XVI

of the indictment alleged mail fraud

violations based upon NL Baroid's payment

for cement actually delivered to private

residences,

During the trial, the

Prosecution introduced several charts and

made use of summary testimony to

establish, inter alia, the average price

per gallon paid wholesale for diesel by

defendant, the average price per gailon

paid retail for diesel by NL Baroid, and

the total amount paid for tank cleaning

services by NL Baroid to defendant. The

prosecution also elicited testimony, over

defendant's objection, of alleged

kickbacks to two of defendant's Superiors,

and of an offer of bribe to another NL

Baroid employee.

The prosecution's evidence also

established that the defendant had been

enplovet by NL Baroid for almost twenty-

five years at his termination, and _ had

attained the position of District

Operating Supervisor. Several vf Newton

Gaspard's superiors testified that they

knew of Newton Gaspard's personal

involvement with South State Oil & Gas,

te (the diesel business) and with Ed's

Tank Cleaning (the tank cleaning

business). Despite the Court of Appeal!s'

statement that this testimony was

"impugned" by the kickback testimony

(Opinion, p.5, 744 F. 2d 438 '

440 ), there was no showing of same at

trial. In fact, one supervisor, Woodrow

Wilson, testified that he approached

Newton Gaspard for a "kickback," received

one payment by check, and returned the

check without cashing it. The second

supervisor, Travis Kieffer, testified that

Newton Gaspard offered him a kickback but

that Kieffer refused the offer. The third

Supervisor, Dayton King, the second

highest ranking NL Baroid employee in the

concerned multi-state region, testified as

to his knowledge and this knowledge was

not tainted or impugned by any’ kickbacks

or other irregularity. Furthermore, all

allowed Newton Gaspard to continue his

Operations. These superiors had knowledge

of Newton Gaspard's activities and allowed

them to continue. Newton Gaspard knew

that these superiors knew of his

activities and operated under the good

faith impression that everyone with NL

Baroid who needed to know and approve of

the businesses did so.

As to Counts XV and XVI, the

concrete counts, the government's witness

testified that he was only 95% certain

that NL Baroid paid for concrete delivered

to the residences of two of Newton

Gaspard's relatives.

In closing argument, the

prosecutor made certain remarks appealing

to the passions and prejudices of the

jury. Although the Court of Appeals

looked disfavorably on the remarks

(Opinion, —. 7, nt. $;, 744 F. 2d

438 P 441 ), it held that they did

not constitute reversible error.

The jury returned a verdict of

guilty on all twelve counts of the

indictment. The trial court denied

defendant's motion for judgment of

acquittal or for a new trial. The

defendant appealed and the Court of

Appeals affirmed the convictions holding

that the indictment sufficiently charged a

crime, that there was sufficient evidence

to sustain a conviction and that the other

alleged errors were not severe

enough to merit either reversal or

consideration. A petition for rehearing

and a suggestion for rehearing en banc

filed by defendant-appellant, Newton

Gaspard, were denied and this Petition for

Certiorari results.

ARGUMENT.

A. Insufficiency of Indictment.

One of the points raised by

defendant on appeal was that Counts I

through xX of the indictment failed to

charge an offense. The Fifth Circuit held

that the indictment was sufficient, but,

in doing so, rendered a decision that is

in conflict with prior decisions of that

Circuit, including those cited by the

Fifth Circuit in support of its opinion.

The Fifth Circuit held that the contested

counts of the indictment herein met the

"Kent-Freeman standard." However, an

examination of those two cases, United

States v. Kent, 608 F. 2d 542 (5th Cir.

1979), and United States v. Freeman, 619

F. 2d 1112 (5th Cir. 1980), reveals an

indictment vastly more detailed and

specific than the one at issue here. In

Freeman, the indictment set forth with

great detail and specificity a scheme to

deprive investors of money by use of

several non-owned oil leases. See United

States v. Freeman, supra, at p. 1117, no.

3. In Kent, again the indictment alleged

very specifically a scheme to deprive an

Oil company, by one of its employees, of

confidential information, which was used

by the employee and others to beat the oil

company to the punch in the leasing of

attractive parcels. Furthermore, in

United States v. Goss, 650 F. 2d 1336 (5th

Cir. 1981), the acts charged to have been

committed were essentially fraudulent;

rae the defendants were accused of

selling to the victim a commodity that was

designated as crude oil that was not crude

Oil at all. In United States v. Cauble,

706 F.. 2d 1322 (5th Cir. 1983), the court

States that the indictment "details the

predicate offenses and overt acts with

great specificity," and "lists thirty-

seven overt acts." 706 F. 2d 1322, 1333.

This is the type of indictment that was

upheld in Cauble, and the type of

indictment that Newton Gaspard contends

was necessary in the present case. Counts

I through xX of the indictment in this case

only charge that Newton Gaspard provided

NL Baroid with necessary goods and

services and made a profit thereby. These

are clearly acts that are not criminal in

and of themselves. To criminalize these

acts and to make a sufficient allegation

of mail fraud, something more must _ be

alleged to show the fraudulent acts, the

concealment, and misrepresentation, if

any, of defendant. This is clearly

necessary because of the universal

jurisprudential requirement that ina mail

fraud case involving a defendant who owes

some sort of fiduciary obligation to the

victim, a showing must be made deliberate

and fraudulent misrepresentation and

concealment by the defendant from the

victim which resulted in harm to the

victim. See United States v. Barta, 635

F. 2d 999 (2d Cir. 1980); United States v.

Mandel, 591 F. 2d 1347 (4th Cir. 1979);

United States v. Bohonus, 628 F. 2d 1167

(9th Cir. 1980); and United States v.

Ballard, 663 F. 2d 534 (Sth Cir. 1981).

Clearly, this was not done. The Court's

reliance on United States v. Howell, 719

F. 2d 1258 (5th Cir. 1983), is also

inapposite because the crime charged there

was based upon a simply stated statute, 18

U.S.C. 871, the mere recitation of which,

without more, will allege a crime: making

a threat to take the life of the President

of the United States. In a mail fraud

case, however, there exists a much finer

line between criminal acts’) and non-

criminal acts. " {T]he statute does not

reject all business practices that do not

fulfill expectations, nor does it taint

every breach of a business’ contract."

United States v. Kreimer, 609 F. 2d 126

(Sth Cir. 1960), at @. see8 Greater

specificity than that found in the

instant case is clearly required in a mail

fraud indictment even if the requirement

is based solely upon the fact that mail

fraud schemes are often very complex and

the mere recitation of formulary language

cannot suffice. Petitioner urges that the

pricr decisions of the Fifth Circuit have

required greater specificity in a mail

fraud indictment and that the decision of

the Fifth Circuit in this matter is

contrary to those opinions. Petitioner

urges that the rule to be adopted is that

of the previous decisions of the Fifth

Circuit which require extensive detailing

of the alleged fraudulent scheme.

B. Insufficiency of Evidence.

One of the widely held

principles in the mail fraud jurisprudence

is that breach of a fiduciary obligation,

a mere passive fraud, is not sufficient to

constitute mail fraud. United States v.

Goss, supra; United States v. Ballard,

Supra; United States v. Bohonus, supra;

United States v. Barta, supra; and, United

States v. McDonald, 576 F. 2d 1350 (9th

Cit. 1976). The decision of the Fifth

Circuit in the present case presents an

important question for review because that

Opinion allows a passive-type fraud to

suffice for a mail fraud conviction and it

represents a serious departure from the

widely held and clearly established

jurisprudence cited above.

The Fifth Circuit seems to rely

upon its assertion that the testimony of

Newton. Gaspard's superiors that they knew

and approved of his operation of South

State Oil & Gas, Inc., and Ed's’ Tank

Cleaning was "impugned by convincing

evidence that Gaspard had paid or offered

"kickbacks' to a number of company

Supervisors." Opinion p. 5; 744 =F.

433 , 440. Again the Court has

failed to see this in its whole context.

Woodrow Wilson, a supervisor, approached

Newton Gaspard and demanded a kickback and

later returned the only check he received.

Rec. Vol. II at p. 150. Travis Kieffer

stated that Newton Gaspard offered him a

kickback once, but Kieffer never accepted.

Rec. Vol. III at p. 273. As noted by the

Fifth Circuit, Dayton King's office was in

Lafayette, Louisiana, which is

geographically near Intracoastal City but

that is of no consequence because Mr. King

was the second highest ranking man in the

region, multi-state who had direct

knowledge of and allowed Newton Gaspard to

continue his’ businesses. Wilson's’ and

Kieffer's reasons for not stopping the

diesel and tank cleaning activities had

nothing to do with the kickback, in fact

their testimony was directly to the

contrary, but were based upon Newton

Gaspard's outstanding performance as_ an

employee and the enormous profits

generated by Newton Gaspard at the

Intracoastal City facility. Although it is

probable the NL Baroid hierarchy in

Houston and New Jersey had little or no

knowledge of Newton Gaspard's involvement

with South State Oil & Gas, Inc., and Ed's

Tank Cleaning, it is without question that

these superiors knew at all times’ what

products and services Baroid was receiving

and how much Baroid was paying for’ them.

In fact, it is clear in the final

analysis, thet at the time Newton Gaspard

was terminated, Baroid's concern was not

with how much it was paying for diesel and

tank cleaning, but to whom Baroid was

paying the money. This is shown by the

facts and Baroid's actions following the

meeting held by Newton Gaspard, Tom

Parker, and J.D. Love during the height of

the oil shortage. See Rec. Vol. II at p.

134. Mr. Parker testified that Baroid was

in a bind for diesel because of the

shortage. Parker also testified that

Newton Gaspard stated that he could obtain

diesel for Baroid. Parker, who at’ the

time believed that Newton Gaspard intended

to purchase the fuel from Newton Gaspvard's

son, told Newton Gsapard to go ahead as

| long as the price was competitive. Rec.

Voli. II at p. 134. Obviously, the price

remained competitive because Newton

Gaspard continued business as South State

Oil & Gas, Inc., in this manner for over

five years. Another factor that the Fifth

Circuit over looked is that at this

meeting, when Newton Gaspard said he could

get diesel, he meant he could start his

own company, later South State Oil & Gas,

Inc., and sell diesel to Baroid. Mr.

Parker's recollection that he though

Newton Gaspard was going to buy the diesel

from Newton Gaspard's son shows at least a

partial understanding and knowledge by

Parker of Newton Gaspard's personal

iia

involvement with the sale of diesel to

Baroid. Clearly Newton Gaspard acted in

good faith in selling diesel to Baroid via

South State Oil & Gas, Inc., and this was

ignored by the Court. It is well

established that good faith is a complete

defense to a mail fraud prosecution.

United States v. Goss, supra. ihere was

no evidence presented at trial that Newton

Gaspard ever tried to hide, conceal, or

misrepresent h’s involvement with South

State Oil & Gas, Inc., and Ed's’ Tank

Cleaning. Additionally, there was no

evidence, as in United States v. Hable,

613 F. 2d 1321 (5th Cir. 1980), of Newton

Gaspard attempting to lull Baroid into a

false sense of security or of Newton

Gaspard attempting to postpone inquiries.

He has always admitted and never tried to

deny his involvement with South State Oil

& Gas, Inc., and Ed's Tank Cleaning. This

Court's decision herein has’ drastically

altered the jurisprudence surrounding mail

fraud prosecutions concerning fiduciary

relationships. As is widely held and

well-established a breach of a fiduciary

duty standing alone is only a passive fraud

| and does not constitute mail fraud. Some

active fraud must be shown. The

government must show some actions by the

defendant intended to mislead the victim.

That is the essence of fraud. United

States v. Clark, 546 F. 2d 1130 (5th Cir.

i977). The Court now seems to be

instilling an affirmative requirement for

employees to make sure that everyone

Superior to them know of their activities

in order to avoid a mail fraud

prosecution. The jurisprudence, however,

Simply does not require that type of

activism by a potential defendant. "The

laws protecting against fraud are most

needed to protect the careless and the

naive from lupine predators, and they are

designed for that purpose." United States

v. Kreimer, 609 F. 2d 126 (5th Cir. 1980),

at p. 132. The decision of the original

panel represents a clear departure from

those standards and makes a passive fraud

sufficient to sustain a mail fraud

conviction. It must be noted that Newton

Gaspard never intentionally failed to

disclose his activities with South State

Oil & Gas, Inc., and Ed's Tank Cleaning.

He admitted it to everyone who inquired

and, in fact, operated under the good

faith belief that he has express

permission to do. so. Any . failure to

disclose was inadvertent at most and is

insufficient to constitute mail fraud. It

must be stressed, however, that the

decision of the original panel would now

require anyone who does business with his

employer to see to it that everyone from

the mail room to the board room be aware

of the transaction. But the

jurisprudential requirements are simply

not that stringent. Mail fraud is

governed by a nontechnical standard and

seeks to promote fundamental honesty and

fair play. United States v. Kreimer,

Supra. In the present case, Newton

Gaspard did business with his’ employer

with the knowledge and approval of at

least two levels of supervisors superior

to him. Newton Gaspard had a good faith

belief that every superior with Baroid who

needed to know of his businesses knew. In

addition, every superior who knew of

Newton Gaspard's businesses allowed them

to continue and approved of them until the

intervention of the private investigator.

Baroid knew what price it was paying for

the goods and services delivered to it and

did nothing to alter the situation based

upon the monetary considerations. The law

does not impose a requirement upon Newton

Gaspard to, in order to avoid a mail fraud

prosecution, seek out all personnel in a

Superior position to inform them of what

he intends to do. By not doing so, Newton

Gaspard may have violated company policy

and that may have justified his

termination, but he did nt violate the

law and his convictions are not justified.

If this now constitutes mail fraud, then

the Fifth Circuit has set a whole new

standard of proof for mail fraud and a

whole new requirement for conviction.

Petitioner urges that this Court

reject the new standard for conviction

pronounced by the Fifth Circuit in this

case and adhere to the long accepted

and firmly established requirement of an

active fraud to constitute mail fraud.

C. Improper Prosecutorial Comment.

"A prosecutor's duty in closing

arguments is to be scrupulous and to avoid

all efforts to obtain a conviction by

going beyond the evidence before the jury

or by putting the sanction of his office

behind the testimony of the witnesses."

United States v. Dorr, 636 F. 2d 117 (5th

Care E005), Gt Ds 120. In this case,

where the evidence of fraud against the

Gefendant was weak, certain remarks made

by the prosecutor in closing and rebuttal

argument were improper and denied Newton

Gaspard of a fair trial.

First, the prosecutor remarked

that the defendant "was better paid than

most members of this jury or any other

jury sitting in the State of Louisiana."

(Transcript of Arguments, p. 32). This is

clearly an improper attempt by the

prosecutor to appeal to the passion and

personal prejudices of the jurors. See

United States v. Smyth, 556 F. 2d 1179

(Sth Cir. 1977).

Even more harmful and

prejudicial than this last

statement are two remarks made by the

prosecutor regarding Defense Exhibit 1,

which was a letter from NL Baroid signed

by Travis Kieffer, one of Newton Gaspard's

superiors, acknowledging that Newton

Gaspard was selling diesel to NL Baroid as

South State Oil & Gas, Inc. First, the

prosecutor stated, "I submit to you that

this is not a legitimate letter."

(Transcript of Arguments, p. 35). Lastly,

he remarked about the letter that "this is

a paste up. ‘This is a phony. it*s =a

fraud....Well, I think I was wrong because

now there's a fourth scheme, a fourth

fraud, and that is this bogus letter, the

fourth scheme, but now there's a new

victim. And who's the victim now? I

submit to you, ladies and gentlemen, you

are." (Transcript of Arguments, p. 60).

Not only is this last remark improper and

erroneous for commenting upon evidence

outside the record, but is also an

improper attempt to appeal to the passion

and personal prejudices of the jurors.

although Mr. Kieffer testified that he did

not remember writing the letter and that

he could not remember a reason for writing

the letter, he did state without

equivocation that the signature on the

letter was his (Transcript of Proceedings,

p. 271) and that the facts contained in

the letter were true: he and many others

with NL Baroid had knowledge of the fact

that Newton Gaspard was selling diesel to

NL Baroid via South State Oil & Gas, Inc.,

(Transcript of Proceedings, p. 267). any

comments tending to suggest that the

letter was a fraudulent fabrication

clearly exceeds the evidentiary bounds and

are improper.

To the extent an

attorney's closing argument

ranges beyond these boundaries

it is improper. Except to the

extent he bases any opinion on

the evidence in this case, he

may not express his’ personal

opinion on the merits of the

case or the credibility of

witnesses. (Citations

omitted). Furthermore, he may

not suggest that evidence

which has not’ presented at

trial provides additional

grounds for finding defendant

guilty. United States V.

Garza, 608 F. 2d 659 (5th Cir.

1979) at p. 663.

Of course, the prosecutor did just that by

suggesting to the jury that the letter was

a "paste up" and a "phony." He led the

jury to believe that he has a personal

ee eee eee ee ee eee ee

belief and opinion which must obviously

have been based upon some evidence outside

the record because no one at trial

testified that, based upon their

expertise, the letter was fraudulently

constructed.

It is improper for counsel

to express his

personal opinion or to state

facts of his own knowledge,

not in evidence, and not part

of his evidence to

be presented.

* * *

A prosecutor's expression of

personal belief may be

tolerated 5 ae & is based

solely upon the evidence

introduced and the jury is not

led to believe that other

evidence unavailable to them,

justified the belief.

(Citations omitted). Hence,

he may state, '‘'I believe that

the evidence has shown the

defendant's guilt,' but not,

‘I believe that the defendant

is guilty." United States v.

Rodriguez, 585 F. 2d 1234 (5th

Cir. 1978), at p. 1243-1244.

The prosecutor here said, in effect, "This

letter is fraudulent," which is absolutely

improper and prejudicial. Since the

prosecutor commented on these matters

which were outside the record, reversible

error per se has been committed and Newton

Gaspard is entitled to have his

convictions reversed. See United States

v. Swinehart, 617 F. 2d 336 (3rd Cir.

1980). This is so even though no trial

objection was made, as held by the Tenth

Circuit in United States v. Rios, 611 F.

2d 1335 (10th Cir. 1979):

The effect of these assertions

before the jury was that

defense counsel's investigator

was clearly charged with

contriving the defense

testimony, with no _ factual

basis to justify such a

serious charge.

* * *

‘We hold and conclude that the

prosecutor's comments

constituted gross

prosecutorial misconduct

requiring reversal of

defendant's conviction, even

though no trial objection was

lodged.' 611 F. 2d 1335, 1342.

The Fifth Circuit, in its

decision, cited the case of United States

v. McPhee, 731 F. 2d 1150 (5th Cir. 1984),

in support of its position that these

remarks, although bad, were not bad enough

to require reversal. In McPhee, the Fifth

Circuit reversed a conviction because of

improper prosecutorial remarks that

implied some special knowledge by the

prosecutor. Here, the prosecutor did more

than imply special knowledge; he _ stated

without equivocation that the letter had

been fraudulently conceived even’ though

there was absolutely no evidence to that

effect at trial and even though the author

of the letter positively identified his

Signature and testified as to the truth of

the letter's contents. McPhee clearly

required reversal in this situation as to

the Fifth Circuit decisions in United

States v. Dorr, 636 F. 2d 117 (5th Cir.

1981), United States v. Garza, 608 F. 2d

659 (5th Cir. 1979), and United States v.

Rodriguez, 585 F. 2d 1234 (5th Cir. 1978).

Petitioner urges that these

remarks were fatal to his right to a fair

trial and that the Fifth Circuit has again

ignored established jurisprudence.

Petitioner urges this Court to. redirect

the jurisprudence and uphold petitioner's

right to a fair trial.

D. Jury Instructions.

In perfunctorily dismissing

defendant's alleged error concerning jury

instructions, the Appellate Court has

Clearly failed to apply certain well-

established principles of the Fifth

Circuit.

The primary purpose of jury

instructions is to define with

substantial particularity the

factual issues , and clearly

to instruct the jurors as_ to

the principles of law which

they are to apply in deciding

the factual issues involved in

the case before them.

(Citations omitted ) °

Accordingly, a defendant is

entitled to a charge which

precisely and specifically,

rather than merely, generally

or abstractly, points to the

theory of his defense.

* * *

W e cannot depend on defense

counsel's closing argument to

save the Judge from error.

United States v. Wolfson, 573

F.2d 216 (5th Cir. 1978) at

p. 221. Emphasis provided.

In reviewing the failure to give

a defendant's proposed instruction

regarding his’ theory of the case, the

court must accept the testimony most

favorable to the defendant, United States

v. Lewis, 592 F. 2d 1282 (Sth Cir. 1979).

We must view this case under

defendant's version of the

facts, for ‘defendant was

entitled to have presented

instruction relating to a

theory of defense for which

there is any foundation in the

evidence, even though the

evidence may be weak,

insufficient, or of doubtful

credibility.' United States v.

Hammons, 566 F. 2d 1301 (5th

Cir. 1978), at p. 1302.

See also United States v. Parker, 566 F.

2d 1304 (5th Cir. 1978).

Upon review of the facts of this

case, it is clear that a mistake was made.

Befcre the jury instructions were given, a

charge conference was held at which the

Trial Judge presented his proposed

instructions. This proposed set contained

no theory of defense charges at all. Upon

review of Defendant's Requested Charges 14

and 15 (Record, p. 182 and 183), the Trial

Judge added only the following:

It is the defendant's

contention regarding the

activities of South State Oil

& Gas, Inc., and Ed's’ Tank

Cleaning that he did not

conceal his relationship with

these companies, that NL

Baroid did not suffer by doing

business with the two

companies and that he operated

both companies in good faith

without intent to defraud.

(Transcript of Instructions,

So. 12).

This instruction bareiy related

to the diesel and tank cleaning charges

and made no mention at all of Newton

Gaspard's theory regarding the concrete;

i.e., that the paperwork chain was_ so

deficient that the crime charged was not

proved. Furthermore, the charge given

makes no mention of the fact that NL

Baroid routinely did business with its own

employees, which was clearly shown by the

government's own witnesses. Nor did the

charge make note of the fact that tank

cleaning was not part of a Baroid

employee's regular duties and was

customarily and routinely contracted out.

The given charge also omits the fact that

while the employees cleaning the tanks may

have been on the Baroid premises during

their three days "on," they may not

necessarily and probably were not on the

Baroid time clock. These facts were well

shown at trial by the governments’ own

witnesses and, if believed by the jury,

would surely have resulted in an

acquittal. This is especially clear

because the prosecution relied heavily on

the argument that the tank cleaning was

done by Baroid employees while on Baroid

time. But, as indicated by Ralph Andrews,

there is no way to prove that when the

Baroid employees cleaned the tanks’ they

were actually on Baroid time (Transcript

of Proceedings, p. 207). "It has long

been well established in this Circuit that

it is reversible error to refuse a charge

on a defense theory for which there is an

evidentiary foundation and which, if

believed by the jury, would be legally

sufficient to render the accused

innocent." United States v. Lewis, supra

at p. 1285. It is reversible error to

refuse to sufficiently instruct as to the

diesel and tank cleaning charges and it is

reversible error to refuse to instruct at

all as to the concrete counts.

By literally ignoring this

assertion of error in its opinion in this

case, the Fifth Circuit has again refused

to recognize another serious impairment of

defendant's right to oe f64F trial.

Petitioner urges that this court reaffirm

the jurisprudence ignored by the. Fifth

Circuit.

E. Other Prejudicial Errors and Their

Cumulative Effect.

In addition to the errors

discussed at length above regarding the

improper prosecutorial remarks and the

deficient jury instructions, defendant

alleged other errors on appeal, which

independently deprived him of his right to

a fair trial, but which have a much

greater cumulative effect.

The first of these errors

concerned the use of charts and summaries

by the prosecution. During the course of

the trial, the government introduced three

charts into evidence and elicited summary

testimony from three witnesses. The

justification for the use of summary

evidence is found in Federal Rules of

Evidence, rule 1006, 28 U.S.C., which

provides that "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." Although this

appears to be a rather blanket statement,

the jurisprudence has set certain limits

regarding the use of charts and summaries.

Summaries and charts are not to be

considered evidence themselves. Charts and

summaries may be used at trial providing

the trial court gives a proper limiting

instruction. See United States v. Smyth,

Dee ee) ee) CUS Sth «6CCir. «€©61977)3 = «and,

United States v. Scales, 594 F. 2d 558

(6th Cir. 1979). The Fifth Circuit in

United states v. Smyth, Supra, also

indicated that the use of charts’ and

Summaries is a matter which should be

resolved at a pre-trial level and that

defense counsel should have an opportunity

to not only examine the underlying

documents but also to examine the charts

and summaries. Of course, in this case,

defense counsel was not given the

opportunity to examine the charts. and

Summaries and no cautionary instruction

was given to the jury.

In addition, the trial court,

over objection by defense counsel, allowed

the testimony of Owen Odom, case agent

from the F.B.I., whose sole testimony

consisted of summarizing evidence that had

been previously summarized and to

introduce a chart containing those

summaries. This is beyond the scope of

Rule 1006, which provides for summary of

"voluminous document," which had already

been done. "A chart submitted by the

prosecution is a very persuasive and

powerful tool and must be fairly used,

Since, by its arrangement and use, it is

an argument to the jury during the course

of the trial." United States v. Conlin,

533 Ff. 26 S36 (2ne Cit. i977}, at p. $38-

$39. To have allowed this summary of

summaries and the accompanying chart, all

without prior examination by defense

counsel and without the proper limiting

instruction, is clearly a plain error and

substantially affected defendant's right

to a fair and impartial trial. Not only

did the trial judge fail to give a

cautionary instruction regarding the

charts and summaries, but his charge

inferred that the charts were, themselves,

evidence. The jury was charged that the

"term evidence includes...the exhibits

admitted in the record." (Transcript of

Charges, p. 5). The jury was even allowed

to view the charts during their

deliberations.

The Fifth Circuit, in its

opinion in this matter acnkowledges that a

problem exists with the introduction of

these charts and summaries, it holds that

it does not constitute reversible error.

Opinion, p. 8; 744 F. 2d 438,

442.

The next error, which was also

ignored by the Fifth Circuit, concerns the

admission into evidence of the testimony

of Charles Guidry, a NL Baroid employee.

The thrust of Mr. Guidry's testimony was

that Newton Gaspard offered Mr. Guidry a

bribe to falsify certain diesel fuel

reports to those reports would not reflect

a diesel deficiency. What the government

seemed to be attempting to show is’ that

Newton Gaspard was embezzling fuel that

belonged to NL Baroid. But this testimony

is totally unrelated to the indictment

which only charges that Newton Gaspard

sold diesel to NL Baroid and made a

profit. By rejecting this error without

discussion, the Fifth Circuit closed its

eyes to not only the blatant

inconsistencies in Mr. Guidry's testimony

fi.e., the report that he was to falsify

was only "a little bit off," (Transcript

of Proceedings, p. 180), and that his

superiors (who were also Newton Gaspard's

superiors) told him not to worry about the

shortage (Transcript of Proceedings, p.

180), and that this whole set of

circumstances occured in 1983, (Transcript

of Proceedings, p. 180) after Newton

Gaspard had been terminated in 1982] , but

also to the fact that if the jury

considered this evidence and convicted

Newton Gaspard because of it, then Newton

Gaspard may have been convicted of a crime

with which he was not’ charged. A mail

fraud defendant cannot be convicted of

scheme Y if he was only charged with

scheme X, "even if the schemes themselves

overlap or are concentric." United States

v. Mastelotto, 717 F. 2d 1238 (9th Cir.

1983), at p. 1248-1249; quoted with

approval in United States v. Miller, 715

F. 2d 1360 (9th Cir. 1983), at p. 1362.

It is further evident that’ the

Fifth Circuit ignored the cumulative

effect of the errors alleged. Although

they have acknowledged a problem with two

of the specified errors, not sufficient

individually, however, to require

reversal, the Fifth Circuit declined to

consider the established jurisprudence of

that circuit which holds that even though

individual errors may not independently

require reversal, the cumulative effect

of those errors will require reversal.

United States v. Labarbera,581 F. 2d 107

(Sth Cir. 1978). Four serious errors were

alleged to have been committed at the

trial level: improper prosecutorial

remarks, deficient jury instructions,

erroneous introduction and use of

summaries and charts, and the erroneous

admission of testimony. These errors are

so clearly prejudicial that defendant was

seemingly without hope of obtaining a fair

trial.

Petitioner urges that the

opinion of the Fifth Circuit in this

matter is clearly contrary to and non-

responsive to the case law regarding

these particular prejudicial errors and

their cumulative effect. Petitioner urges

that this Court should adopt the more

reasoned principle of protection of a

defendant's Constitutionally mandated

right to a new trial and hold that’ these

errors and their cumulative effect require

reversal of the convictions.

F. Restitution.

Although the defendant was not

required to pay restitution pursuant to

Title 18 U.S.C. 3579, its application to

this trial presents an important question

for review by the Supreme court. This is

another issue upon which the Fifth Circuit

declined to comment.

Title 18 U.S.C. 3579, inter

alia, provides that a “court, when

sentencing a defendant convicted of an

offense under this title...may order, in

addition to or in lieu of any other

penalty authorized by law, that the

defendant make restitution to any victim

the offense." It is clear, not only

from the plea discussions held with

Assistant U.S. Attorney and the F.B.I.

agents, but also from the government's

thrust of proof at trial that one of the

government's main interests was to obtain

an award of restitution for NL Baroid

pursuant to 18 U.S.C. 3579. In the plea

discussions it was literally and

expressly said as such. At trial it is

shown first by the government's motion in

limine filed January 20, 1984, which

motion was granted by the trial court.

The motion sought to allow the government

to introduce as evidence an enormous

amount of invoices and other documents not

specifically enumerated in the indictment.

What was introduced pursuant to this

motion were all the invoices of diesel

wholesalers to South State Oil & Gas,

Inc., and all the invoices from South

State Oil & Gas, Inc., to NL Baroid within

the indictment's time frame. Contrary to

the assertions of the government, this

paperwork was absolutely unnecessary and

superfluous in their attempt to prove a

scheme to defraud. A scheme to defraud,

if there had been one, could have been

proven by first showing that Newton

Gaspard was operating the two businesses

and that he was selling goods and services

» BEST AVAILABLE COPY &

to his employer. This could have easily

been shown by the ten checks from NL

Baroid which attempt to make up Counts I

through xX of the indictment. Each check

was issued pursuant to the generation of

several Baroid purchase orders which, in

turn, were generated from respective South

State Oil & Gas, Inc., and Ed's’ Tank

Cleaning invoices. These documents alone

were more than sufficient to establish a

business relationship between South State

Oil & Gas, Inc., and NL Baroid and between

Ed's Tank Cleaning and NL Baroid. The

rest of the documents, introduced through

the various summary witnesses, have as

their sole purpose an attempt to show an

amount of money which NL Baroid should be

compensated. There was even a_ specific

chart to show that exact amount,

Government Exhibit 28. These documents

have absolutely no relation to showing the

next requirement for mail fraud, i.e.,

active, deliberate, and fraudulent

concealment or misrepresentation. The

government and the court were mixing the

criminal trial with the civil aspect of 18

U.S.C. 3579. This is highly improper and

prejudicial especially in view of the fact

that not only is there a statutory

provision for the separate determination

of restitution, i.e., 18 U.S.C. 3580, but

there is an administrative avenue alrady

functioning in the for of the United

States Probation Office, which handies the

pre-sentence investigation. In this case,

the probation officer actually did her own

investigation regarding possible

restitution. The intertwining the

criminal with the civil can only serve to

confuse the jury as to their proper role.

In this case, the jury's function was to

decide whether the defendant had

deliberately and fraudulently concealed or

misrepresented any material fact from his

employer. That decisional process was not

helped, but was, in fact, hindered and

confused by the substantial government

testimony and evidence on the pure

numbers.

To further highlight the extreme

impropriety of the application to this

Statute to these proceedings is the fact

that the restitution statute, 18 U.S.C.

3579, is not applicable to these charges

at all. Section 9 (b)(2) of Public Law

97-291 — that the "amendments made

by section 5 of this Act [which enacts 18

U.S.C. 3579 and 3580] shall apply with

respect to offenses occurring on or after

January 1, 1983." As can be clearly seen

from the indictment, the offenses charged

were all alleged to have occurred in 1981

and 1982, so restitution is an

inappropriate remedy for this situation

and to have allowed its application to

this case absolutely deprived Newton

Gaspard to his right under the Sixth

Amendment to a fair trial.

The noteworthy decision by Judge

Acker in United States v. Welden, 568 F.

Supp 516 (N.D. Ala. 1983), further

emphasized the defective nature of 18

U.S.C. 3579 and, in fact, declared the

statute to be unconstitutional even when

presented in the format of having a

separate trial to determine guilt and then

another trial to determine the amount of

restitution. It is submitted, therefore,

that to have allowed application of 18

U.S.C. 3579 to the proceedings in this

case was plain error and unconsitutionally

deprived Newton Gaspard of his right toa

‘

TO See SE ~~ eee

fair trial. In having declined to address

this issue, the Fifth Circuit has again

ignored a substantial question and

petitioner urges this Court to consider

the application of the restitution statute

of these proceedings.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED,

Petitioner prays that this Court issue the

Writ of Certiorari to review the judgment

of the Court of Appeals for the Fifth

Circuit and that, upon doing so, the Court

reverse the convictions of the defendant.

RESPECTFULLY SUBMITTED:

FUNDERBURK, CONQUE & HERP

01 South St. Charles

Post Office Box 807

Abbeville, LA 70511-0807

Phone: (318) 893-8140

Attorneys for Petitioner

CERTIFICATE

I hereby certify that a copy of

the above and foregoing has this day been

forwarded to the Solicitor General, by

depositing same in the United States

Mail, postage prepaid, and properly add-

ressed.

Abbeville, Louisiana, this 11th

day of December, 1984.

FUNDERBURK, CONQUE & HERPIN

Post Office Box 80

Abbeville, LA 70511-0807

Attorneys for Petitioner

A-l

APPENDIX

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

UNITED STATES OF AMERICA

VERSUS CRIMINAL NO:

CR83-60059

NEWTON GASPARD;

JAMES A. GASPARD

SOUTH STATE OIL & GAS,

INC., J.P. RENTALS, 18 U.S.C. 8371;

INC. 61341; 6 2

TIBDOLOTaER FT

THE GRAND JURY CHARGES:

COUNT I

1) AT ALL TIME MATERIAL HEREIN:

a. NEWTON GASPARD was an

employee of N.L. Baroid, a Division of

N.L. Industries, Incorporated, at

Intracoastal City, Louisiana.

b. NEWTON GASPARD was a

District Operating Supervisor for N.L.

Baroid.

Cc. NEWTON GASPARD'S

en a

responsibilities were, among others,

directing the ordering, purchasing, and

receiving of materials to N.L. Baroid from

outside vendors and to insure the

distribution of N.L. Baroid products to

its customers.

d. NEWTON GASPARD was the

President of SOUTH STATE OIL AND GAS,

INCORPORATED hereinafter referred to as

SSOG, INC. and a 51% shareholder in that

corporation.

e. NEWTON GASPARD, in his

capacity as a District Operating

Supervisor, had authority to approve

invoices to N.L. Baroid for materials in

any amount, if the material is a required

inventory purchase.

o. NEWTON GASPARD, in his

Capacity as District Operating Supervisor,

had authority to approve invoices to N.L.

Baroid up to $2,000 for such non-recguired

purchases as maintenance and repair.

g. NEWTON GASPARD, as an

employee of N.L. Baroid, signed a

statement of understanding that he would

not engage in any conflicts of interest

with his employer.

2) AT ALL TIMES MATERIAL HEREIN:

a. N.L. Baroid,-a subsidiary of

N.L. Industries, is a major manufacturer

ar distributor of drilling mud, with

offices at Intracoastal City, Louisiana.

b. N.L. Baroid is in the

business of producing drilling mud _ for

drilling well sites throughout the

Louisiana Gulf Coast area.

Ce In producing the drilling

mud, N.L. Baroid purchases enormous

amounts of dies] fuel.

dad. It is the written policy of

N.L. Industries, Incorporated that no

employees shall be engaged ina conflict

of interest.

3) Beginning on or about January 20,

1981, and continuing until October, 1982,

in the Western District of Louisiana

and elsewhere, NEWTON GASPARD, the

defendant herein, having devised and

intending to devise a scheme and artifice

to defraud and to obtain money under false

and fraudulent pretenses and to deprive

his employer, N.L. Baroid, of:

a. N.L. Baroid's right to the

honest, loyal, and faithful service of its

employee, NEWTON GASPARD.

b. N.L. Baroid's right to have

its employee perform his duties free from

dishonesty, fraud, and motivation for

personal profit; which scheme and artifice

was in substance as follows:

4) It was part of the scheme and

artifice to defraud that:

a. NEWTON GASPARD incorporated

SOUTH STATE OIL AND GAS, INC., on April

17, 1980.

b. NEWTON GASPARD would order

hundreds of thousand of gallons of diesel

fuel and resell it to his employer, N.L.

Baroid.

es NEWTON GASPARD utilized the

tanks, fuel lines, and other equipment of

his employer, N.L. Baroid, to operate his

personal business, SSOG, INC.

d. NEWTON GASPARD resold

diesel fuel to his employer, N.L. Baroid,

at a profit.

e. NEWTON GASPARD, a supervisor

at N.L. Baroid would order his

subordinated to receive and distribute

SSOG, INC., diesel fuel while these

subordinates were working for N.L. Baroid.

Be NEWTON GASPARD used his

N.L. Baroid office as his SSOG, INC.,

office and further utilized the N.L.

Baroid telephone number on his SSOG, INC.,

| invoices.

g. NEWTON GASPARD' submitted

invoices to N.L. Baroid billing Baroid for

purchases of diesel fuel.

h. The SSOG, INC., invoices

generated and caused to be mailed

A NAN ite itt i eepemenmmee NO tetas wa ©

numerous checks from N.L. Industries,

Hightstown, New Jersey, to SSOG, INC.,

Post Office Box 905, Abbeville, Louisiana.

A Na TN nasa st

$. On or about January 20, 1981, in

the Western District of Louisiana,

NEWTON GASPARD and SOUTH STATE OIL AND

GAS, INC., defendants herein, for the

purpose of executing the aforesaid scheme

and artifice to defraud and attempting to

imtennuctins Pts armors

do so, knowingly caused N.L. Industries to

place in an authorized depository for mail

matter to be sent and delivered by the

| i

United States Postal Service, that is, an

enve lope to SSOG, INC., Abbeville,

Louisiana, containing an N.L. Industries

check number 07413590, in the amount of

$79,902.58, in violation of Title 18,

United States Code, Section 1341. [18

U.S.C. §& 1341]

COUNT II

1) The Grand Jury realleges and

incorporates by reference all of the

allegations of paragraphs one though four

of Count I of this indictment as a_ scheme

and artifice to defraud.

2) On or about August 24, 1981, in

the Western District of Louisiana, NEWTON

GASPARD and SOUTH STATE OIL AND GAS, INC.,

the defendants herein, for the purpose of

executing the aforesaid scheme and

artifice to defraud and attempting to do

so, knowingly caused N.L. Industries to

place in an authorized depository for mail

matter to be sent and delivered by the

United States Postal Service, that is, an

envelope to SSOG, INC. FROM N.L.

Industries, containing a check numbered

01382461 in the amount of $47, 363.40, in

violation of Title 18, United States

Code, Section 1341. [18 U.S.C. § 134]

COUNT III

1) The Grand Jury realleges' and

incorporates by reference all of the

allegations of paragraphs one through four

of Count I of this indictment as a scheme

and artifice to defraud.

2) On or about December 17, 1981, in

the Western District of Louisiana, NEWTON

GASPARD and SOUTH STATE OIL AND GAS, INC.,

the defendants herein, for the purpose of

executing the aforesaid scheme and

artifice to defraud and attempting to do

so, knowingly caused N.L. Industries to

place in an authorized depository for mail

matter to be sent and delivered by the

United States Postal Service, that is, an

envelope to SSOG, INC., from N.L.

Industries, containing a check numbered

07665966 in the amount of $79,535.80, in

violation of Title 18, United States Code,

Section 1341. [18 U.S.C. 81341]

COUNT IV

1) The Grand Jury realleges and

incorporates by reference all of the

allegations of paragraphs one through four

of Count I of this indictment as a_ scheme

and artifice to defraud.

2) On or about April 26, 1982, in

the Western District of Louisiana, NEWTON

GASPARD and SOUTH STATE OIL AND GAS, INC.,

the defendants herein, for the purpose of

executing the aforesaid scheme and

artifice to defraud and attempting to do

A~-10

so, knowingly caused N.L. INdustries to

place in an authorized depository for mail

matter to be sent and delivered by the

United States Postal Service, that is, an.

envelope to SSO0G, INC., from N.L.

Industries, containing a check numbered

08108054 in the amount of $63,575.72, in

violation of Title 18, United States Code,

Section 1341. [18 U.S.C. $1341]

COUNT V

1) The Grand Jury realleges' and

incorporates by reference all of the

allegations of paragraphs one though four

of Count I of this indictment as a scheme

and artifice to defraud.

2) On or about July 9, 1982, in the

Western District of Louisiana, NEWTON

GASPARD and SOUTH STATE OIL AND GAS, INC.,

the defendants herein, for the purpose of

executing the aforesaid scheme and

artifice to defraud and attempting to do

eae

A-1l

so, knowingly caused N.L. Industries to

place in an authorized depository for mail

matter to be sent and delivered by the

United States Postal Service, that is, an

envelope to SSOG, INC., from N.L.

Industries, containing a check numbered

08221098 in the amount of $49,612.50, in

violation of Title 18, United States code,

Section 1341. [18 U.S.C. 81341]

COUNT VI

1) The Grand Jury realleges and

incorporates by reference paragraphs one

and two of Count I of this Indictment.

2) Beginning on or about July 9,

1981, and continuing until on or about

July 15, 1982, in the Western District of

Louisiana and elsewhere, NEWTON GASPARD,

the defendant herein, devised a scheme and

artifice to defraud and to obtain goods

under false and fraudulent pretenses and

A-12

to deprive his employer, N.L. Baroid of:

a. Its right to the honest,

loyai, and faithful service of its

employee, NEWTON GASPARD.

b. N.L. Baroid's right to have

its employee perform his duties free from

dishonesty, fraud, and motivation for

personal profit.

c. The services of certain N.L.

Baroid employees who were being supervised

by NEWTON GASPARD.

3) It was part of the scheme and

artifice to defraud that:

a. NEWTON GASPARD formed Ed's

Tank Cleaning and Cajun Tank Cleaning

Service.

b. Ed's Tank Cleaning and Cajun

Tank Cleaning Service were involved with

cleaning Grilling mud tanks at N.L.

Baroid.

c. Ed's Tank Cleaning and Cajun

ia ilaniieianeniaiaemieeiieamineunilial

A-13

Tank Cleaning Service had no full-time

employees but hired certain N.L. Baroid

employees on a part-time basis.

d. These N.L. Baroid employees

were solicited by their supervisor, NEWTON

GASPARD, to work on the tanks.

e. NEWTON GASPARD paid ‘these

employees in cash to clean the tanks.

t. Many of these employees

were on duty and were being paid by N.L.

Baroid while at the same time being paid

by NEWTON GASPARD for cleaning drilling

mud tanks.

G. NEWTON GASPARD' submitted

numerous invoices to N.L. Baroid from Ed's

Tank Cleaning and Cajun Tank Cleaning

Service for tanks- that were being cleaned

by N.L. Baroid personnel on N.L. Baroid

time.

2. NEWTON GASPARD, as a

* BEST AVAILABLE COPY

A-14

supervisor at N.L. Baroid, solicited his

subordinates to work for NEWTON GASPARD'S

private business interests while knowing

full well that that said employees were

also being paid for their services by

their employer, N.L. Baroid.

i. The invoices submitted to

N.L. Baroid by NEWTON GASPARD generated

numerous checks being mailed from N.L.

Industries' office in Hightstown, New

Jersey.

4. On or about August 10, 1981,

NEWTON GASPARD, the defendant herein, for

the purpose of executing the aforesaid

scheme and artifice to defraud and

attempting to do so, knowingly caused N.L.

Industries to place in an authorized

depository for mail matter to be sent and

delivered by the United States Postal

Service, that is, an envelope containing

check number 04476258 in the amount

A-15

$5,920.00, which was addressed to Ed's

Tank Cleaning, 216 €E. Trails End,

Abbeville, Louisiana, in violation of

Title 18, United States Code, Section

1341. [18 U.S.C. 81341] .

COUNT VII

1. The Grand Jury realleges and

incorporates by reference paragraphs one

and two of Count I and paragraphs two and

three of Count VI of the Indictment

herein:

2. - On or about September 14, 1981,

NEWTON GASPARD, the defendant herein, for

the purpose of executing the aforesaid

scheme and attempting to do so, knowingly

caused N.L. INdustries to place in an

authorized depository for mail matter to

be sent and delivered by the United States

Postal Service, that is, an envelope

containing check number 07594166 in the

A-16

amount of $7,905.00, which was addressed

to Ed's Tank Cleaning, 216 E. Trails End,

Abbeville, Louisiana, in violation of

Title 18, United States Code, Section

1341. [18 U.S.C. 681341]

COUNT VIII

ie The Grand Jury realleges and

incorporates by reference paragraphs one

and two of Count I and paragraphs two and

three of Count VI of the Indictment

herein:

2 On or about September 18, 1981,

NEWTON GASPARD, the defendant herein, for

the purpose of executing the aforesaid

scheme and artifice to defraud and

attempting to do so, knowingly caused N.L.

Industries to place in an authorized

depository for mail matter to be sent and

delivered by the United States Postal

Service, that is, an envelope containing

check number 07602665 in the amount of

A-17

$7,840.00, which was addressed to Ed's

Tank Cleaning, 216 £E. Trails End,

Abbeville, Louisiana, in viclation of

Title 18, United States Code, Section

1341. (18 U.S.C. $1341 ]

COUNT IX

1. The Grand Jury realleges and

incorporates by reference paragraphs one

and two of Count I and paragraphs two and

three of Count VI of the indictment

herein:

a On or about April 26, 1982,

NEWTON GASPARD, the defendant herein, for

the purpose of executimg the aforesaid

scheme and artifice to defraud and

attempting to do so, knowingly caused N.L.

Industries to place in an authorized

depository for mail matter to be sent and

delivered by the United States Postal

Service, that is, an envelope containing

A-18

check number 08108053 in the amount of

$11,725.00, which was addressed to Ed's

Tank Cleaning, 216: E. Trails End,

Abbeville, Louisiana, in violation of

title 18, United States Code, Section

1341. [18 U.S.c. § 1341]

COUNT X

1. The Grand Jury realleges' and

incorporates by reference paragraphs one

and two of Count I and paragraphs two and

three of Count VI of the Indictment

herein:

2. On or about July 15, 1982, NEWTON

GASPARD, the defendant herein, for the

purpose of executing the aforesaid scheme

and artifice to defraud and attempting to

do so, knowingly caused N.L. Industries to

place in an authorized depository for mail

matter to be sent and delivered by the

United States Postal Service, that is, an

envelope containing check number 08228564

A-19

in the umount of $13,500.00, which was

addressed to Ed's Tank Cleaning, 216 E.

Trails’ End, Abbeville, Louisiana, in

violation of Title 18, United States Code,

Section 1341. [18 U.S.C. 81341]

COUNT XV

1) The Grand Jury realleges' and

incorporates by reference to paragraphs

one and two of Count I of the indictment

herein.

2) From some time in April 1982 and

continuing into September, 1982, in the

Western District of Louisiana and

elsewhere, NEWTON GASPARD, the defendant

herein, having devised and intending to

devise a scheme and artifice to defraud

and to obtain property under false and

fraudulent pretenses and to deprive his

employer, N.L. Baroid, of:

a. Its right to the honest,

A-20

loyal, and faithful service of its

employee, NEWTON GASPARD.

b. N.L. Baroid's right to have

its employee perform his duties free from

dishonesty, fraud, and motivation for

personal profit; which scheme and artifice

was in substance as follows:

3) It was part of the scheme and

aritfice to defraud that:

a. NEWTON GASPARD ordered loads

of concrete from Roy E. Young.

b. NEWTON GASPARD ordered

concrete to be delivered to the new home

of his son-in-law, Joseph Kosarek; said

deliveries occurring on or about April 29,

1982, and May 21, 1982.

Ce NEWTON GASPARD ordered

concrete to be delivered to the new home

of his son, James Gaspard; said deliveries

occurring on or about July 19, 1982, and

August 20, 1982.

d. NEWTON GASPARD approved the

concrete invoices as having been received

and purchased by his’ employer, N.L.

Baroid, while knowing full well that the

concrete in question was not for any

business-related purpose.

e. Roy E. Young, the concrete

vendor, was paid by N.L. Baroid for

concrete delivered to NEWTON GASPARD'S

relatives.

£. On or about November 5,

1982, after an investigation was

initiated, NEWTON GASPARD paid Roy E.

Young $4,872.14 in cash, representing a

reimbursement of the value of the concrete

at Joseph Kosarek's house.

4) On or about August 12, 1982,

NEWTON GASPARD, the defendant herein, for

the purpose of executing the aforesaid

scheme and aritifce to defraud and

A-22

attempting to do so, knowingly caused N.L.

Industries to place in an authorized

depository for mail matter to be sent and

delivered by the United States Postal

Service, that is, an envelope to Roy E.

Young, Abbeville, Louisiana, containing

N.L. Industries check number 08264159, in

violation of Title 18, United States Code,

Section 1341. U8 U.S.C.61341) .

COUNT XVI

1) The Grand Jury realleges and

incorporates by reference paragraphs one

and two of Count I and paragraphs two and

three of Count XV of the indictment

herein.

2) On or about August 23, 1982,

NEWTON GASPARD, the defendant herein, for

the purpose of executing the aforesaid

scheme and artifice to defraud and

attempting to do so, knowingly caused N.L.

Industries to place in an authorized

depository for mail matter to be sent and

delivered by the United States Postal

Service, that is, an envelope to Roy E.

Young, Abbeville, Louisiana, containing

N.L. Industries check number 08275736, in

violation of Title 18, United States Code,

Section 134l. N8 u.S.c. 81341) .

A TRUE BILL:

4 WILLIE PROVOST

FOREMAN: FEDERAL GRAND

JURY

JOSEPH S. CAGE, JR.

United States Attorney

BY:JAMES T. MCMANUS

Assistant United States Attorney

JURY INSTRUCTIONS

THE COURT: Now that you have heard

the closing arguments, I might have one

comment on the argurcments for the jury.

It is proper for counsel, in

A-24

Summation, to make arguments relating to

the credibility of the witnesses and the

weight of the evidence where such comments

are based on his observation of the

witnesses and the weight of the evidence

where such comments are based on his

obversation of the witnesses and the

inferences and conlusions that may be

deduced from the evidence. On the other

hand, it is improper for him to inject his

own personal beliefs and knowledge and

that belief of this clients. So, in any

Situation, in regard to what the

government may have in the government's

mind, that means nothing.

Members of the jury, you have now

heard all of the evidence in the case as

well as the final arguments of the lawyers

for the parties. It becomes my duty,

therefore, to instruct you on the rules of

A-25

law that you must follow and apply in

arriving at your decision in the case.

In any jury trial, there are, in

effect, two judges. I amone of the

judges; the other is the jury. It is my

duty to preside over the trial and to

determine what testimony and evidence is

relevant under the law for your

consideration. It is also my duty at the

end of the trial to instruct you on the

law applicable to the case.

You, as jurors, are the judges of the

facts, but in determining what actually

happened in this case, that is in reaching

your decision as to the facts, it is your

sworn duty to follow the law I am now in

the process of defining for you, and you

must follow all of my instructions as a

whole. You have no right to disregard or

give special attention to any one

instruction or to question the wisdom or

;

correctness of any rule I may state to

you, that is you must not substitute or

follow your own notion or opinion as_ to

what the law is or ought to be. It is

your duty to apply the law as I give it

to you regardless of the consequences.

By the same token, it is also your

duty to base your verdict solely upon the

testimony and evidence in the case without

rejudice or sympathy. That was a promise

you made and the oath you took before

being accepted by the parties as jurors in

this case, and they have the right to

expect nothing less.

The indictment or formal charge

against a defendant is not evidence of

guilt. Indeed the defendant is presumed

by law to be innocent. The law does not

require a defendant to prove his innocence

Or to produce any evidence at all, and no

BEST AVAILABLE COPY

inference whatever may be drawn from the

election of a defendant not to testify.

The government has the burden of proving

him guilty beyond a reasonable doubt, and

if it fails to do so, you must acquit him.

Thus while the government's burden of

proof is a strict or heavy burden, it is

not necessary that the defendant's guilt

be proved beyond a possible doubt. It is

only required that the government's proof

exclude any reasonable doubt concerning

the defendant's guilt. A reasonable doubt

is a real doubt based upon reason and

common sense after careful and impartial

consideration of all of the evidence in

the case. Proof beyond a_ reasonable

doubt, therefore, is proof of such a

convincing character that you would be

willing to rely and act upon it without

hesitation in the most important of your

own affairs.

If you are convinced that the

accused has been proved guilty beyond a

reasonable doubt, say so; if you are not

convinced, say So.

As stated earlier, it is your duty to

determine the facts, and in sce doing you

must consider only the evidence I have

admitted in the case. The term evidence

included the sworn testimony of the

witnesses and the exhibits admitted in the

record. Neither the indictment nor

statements of the attorneys are evidence

in the case. Remember that any

statements, objections or arguments made

by the lawyers are not evidence in the

case. The function — lawyers is to

point out those things that are most

significant or most helpful to their side

of the case, and in so doing call your

attention to certain facts or inferences

> ee

A-29

that might otherwise escape your notice.

In the final analysis, however, it is your

own recollection and interpretation of the

evidence that controls in this case. What

the lawyers say is not binding upon you.

So while you should consider only the

evidence in the case, you are permitted to

draw such reasonable inferences from the

testimony and exhibits as you feel are

justified in the light of common

experience. In other words, you may make

deductions and reach conclusions which

reason and common sense lead you to draw

from the facts which have been established

by the testimony and evidence in the case.

You may also consider either direct or

circumstantial evidence.

Direct evidence is the testimony of

the one who asserts actual knowledge of a

fact such as an eyewitness.

circumstantial evidence is proof of a

chain of facts and circumstances

indicating either the guilt or innocence

of the defendant. The law makes no

distinction between the weight to be given

to either direct or circumstantial

evidence. It requires only that you

weigh all the evidence and be convinced of

the defendant's guilt beyond a reasonable

doubt before he can be convicted.

Now, I had said that you must

consider all of the evidence. This does

not mean, however, that you must accept

all of the evidence as true or accurate.

You are the sole judges of the credibility

or believability of each witness and _ the

weight to be given to his testimony.

In weighing the testimony of a

witness, you should consider his

relationship to the government or the

defendant, his interest if any in the

outcome of the case, his manner of

testifying, his opportunity to observe or

acquire knowledge concerning the facts

about which he testified, his candor,

fairness and intelligence, and the extent

to which he has been supported or

contradicted by other credible evidence.

You may, in short, accept or reject the

testimony of any witness in whole or in

part.

Also the weight of the evidece is

not necessarily determined by the number

of witnesses testifying as to the

existence or non-existence of any fact.

You may find that the testimony of a

smaller number of witnesses as to any fact

is more credible than the testimony of a

larger number of witnesses to the

contrary.

A witness may be discredited or

impeached by contradictory evidence by

showing that he testified falsely

concerning a material matter or by

evidence that at some other time the

witness has said or done something or has

failed to say or do something which is

inconsistent with the witness' present

testimony. If you believe that any

witness has been so impeached, then it is

your exclusive province to give the

testimony of that witness such credibility

or weight, if any, as you may think it

deserves.

For your review, Newton Gaspard has

been charged with twelve counts of mail

fraud. Each separate use of the mails in

furtherance of a scheme to defraud

constitutes a separate offense. The

indictment charged Newton Gaspard in

counts one through count five of mail fraud

regarding checks mailed from NL

A-33

Industries' office in Hightstown, New

Jersey and delivered by the United States

postal service to South State Oil and Gas,

Incorporated.

Counts six through ten is mail fraud

regarding checks mailed from NL Industries

in Hightstown, New Jersey and delivered by

the United States postal service to Ed's

Tank Cleaning, and in count fifteen and

sixteen of mail fraud regarding checks

mailed from NL Industries' office in

Hightstown, New Jersey to Roy Young, a

concrete vendor, in payment of concrete

delivered to the home of Newton Gaspard's

son and son-in-law.

All counts charge the defendant with

violation of Title 18, United States Code,

Section 13:41. In order to establish that

the defendant is guilty of mail fraud, the

government must prove beyond a_ reasonable

doubt that, one, the defendant willfully

and knowingly devised a scheme or artifice

to defraud or for obtaining money or

property by means of false pretenses,

representations or premises; and, two, the

defendant used the United States postal

service by mailing or by causing to be

mailed some matter or thing for the

purpose of executing the scheme to

defraud.

The words scheme and artifice include

any plan or course of action intended to

deceive others and to obtain by false or

fraudulent pretenses representations or

promises money or property from persons so

deceived. A statement or a representation

is false or fraudulent within the meaning

cf this statute if it relates to a

material fact and is known to be untrue or

is made with reckless indifference as to

its truth or falsity and is made or caused

A-35

to be made with the intent to defraud. A

statement or representation may also _ be

false or fraudulent when it constitutes a

half-truth or effectively concealed a

material fact with intent to defraud. The

material fact is a fact that would be

important to a reasonabie person in

deciding whether to engage or not engage

in a particular transaction.

To act with intent to defraud means

to act knowingly and with the specific

intent to deceive, ordinarily for the

purpose of causing some financial loss _ to

another or bringing about some financial

gain to one's self. In order to prove

violations of the mail fraud statute, it

must be proved beyond a reasonable doubt

that Newton Gsapard had specific intent to

defraud.

The government proves specific intent

under the mail fraud statute if it proves

that the scheme was reasonably calculated

to deceive persons of ordinary prudence

and comprehension. This intent is shown

by examining the scheme itself. It is not

necessary that the government prove all

the details alleged in the indictment

concerning the precise nature and purpose

of the scheme or that the material mail

was itself false or fraudulent or that the

use of the mail was intended as a specific

or exclusive means of accomplishing the

alleged fraud. What must be proved beyond

a reasonable doubt is that the accused

knowingly and willfully devised or

intended to devise a scheme to defraud,

substantially the same as the one alleged

in the indictment and that the use of the

U.S. mail was closely related to the

scheme in that the accused either mailed

something or caused it to be mailed in an

ee el clas Wa vel,

A-37

attempt to execute or carry out the

scheme.

To cause the mails to be used is to

do an act with knowledge that the use of

the mails will follow in the ordinary

course of business or where such use can

reasonably be foreseen.

Further, if you find beyond a

reasonable doubt that the defendant,

Newton Gaspard was employed by NL Baroid,

a division of NL Industries, for the

purpose of, among other things, purchasing

products and services for and approving

invoices to NL Baroid, then you are

instructed that the defendant stood in a

fiduciary relationship to NL Baroid. Such

a fiduciary relationship would require

that Newton Gaspard exercise utmost good

faith in his relationships with NL Baroid

and make full disclosure to NL Baroid of

any hidden interest he might have in the

A-38

purchases he was approving.

If you find beyond a reasonable doubt

that Newton Gaspard knowingly used that

fiduciary position to obtain or attempt to

obtain secret profits for his own personal

use and benefit at the expense of NL

Baroid, then that would be a breach of a

fiduciary duty, however breach of a

fiduciary duty standing alone is

insufficient to establish mail fraud

violations.

In order to establish a mail fraud

violation here, there must also be proof

of, one, a recognizable scheme formed with

specific intent to defraud; two, the use

of the maiis in execution of the scheme;

and, three, some detriment to the

employer.

The detriment to NL Baroid alleged

here is, one, an acutal financial loss;

—

a a

a acaehins adits sitar EL oe

and, two, the deprivation of Newton

Gaspard‘s faithful and honest service in

that he failed to fulfill his duty to

disclose material information to NL

Industries and or NL Baroid.

Information is material whenever an

employee has reason to believe the

information would lead a reasonable

employer to change its business conduct.

Thus, in order to find that Newton

Gaspard's breach of fiduciary duty

constitutes an illegal fraud under 18

U.S.C. Section 13:41 you must also find

beyond a reasonable doubt that his acts

resulted ina financial loss to NL Baroid

and/or that he breached a duty to disclose

information which he believed would have

led NL Baroid to change its business

conduct.

It is the defendant's contention

regarding the activities of South State

Oil and Gas and Ed's Tank Cleaning that he

Gid not conceal his relationship with

these companies, that NL Baroid did not

suffer by doing business with the two

companies and that he operated both

companies in good faith without intent to

defraud. You are instructed that good

faith is a complete defense to a charge of

intent to defraud under the mail fraud

statute involved here. If the evidence in

this case leaves you with a_ reasonable

doubt whether Newton Gaspard acted in good

faith at the time of the alleged mailings,

then you should acquit the defendant.

Where a defendant has offered

evidence of good general reputation of

truth and veracity or honesty and

integrity or as a law-abiding citizen, the

jury should consider such evidence along

with all other such evidence in the case.

Evidence of a defendant's reputation

inconsistent with those traits of

character ordinarily involved in the

commission of the crime charged may give

rise to a reasonable doubt since the jury

may think it improbable that a person of

good chiracter in repsect to those traits

would commit such a crime.

The jury will always bear in mind

that the law never imposes’ upon a

defendant in a criminal case the burden or

duty of calling any witness or producing

any evidence. You will note that the

indictment charges that the offense was

committed on or about a certain date. The

proof need not establish with certainty

the exact date of the alleged offense. It

is sufficient if the evidence in the case

establishes beyond a reasonable doubt that

the offense was” committed on a day

reasonable near the date alleged.

The word knowingly as that term has

been used from time to time in these

instructions means that the act was done

voluntarily and intentionally and not

because of mistake or intent. The word

willfully as that term has been used from

time to time in these instructions means

that the act was committed voluntarily and

purposely with the specific intent to do

something the law forbids, that is to say

with bad purpose either to disobey or

disregard the law.

I caution you, members of the jury,

that you are here to determine the guilt

Cr innocence of the defendant from the

evidence in this case. The defendant is

not on trial for any conduct or offense

not alleged in the indictment.

Evidence that an act was done at one

time or on one occasion is not evidence of

proof whatever that a similar act was done

at another time or on another occasion.

That is to say evidence that the defendant

may have committed an act similar to’ the

act alleged in the indictment may not be

considered by the jury in determining

whether the defendant in fact committed

any act charged in the indictment. Nor

may evidence of some other act of a like

nature be considered for any other purpose

whatever unless the jury first finds that

the other evidence in the case standing

alone establishes beyond reasonable doubt

that the defendant did the particular act

charged in the particular count of this

indictment then under deliberation.

If the jury should find beyond a

reasonable doubt from other evidence in

the case that the defendant did the act

charged in the particular count’ under

deliberation, then the jury may consider

evidence as to an alleged act of a_ like

nature in determining the state of mind or

scheme in furtherance of which the

defendant did the act charged in the

particular count. And where proof of an

alleged act of a like nature is

established by evidence which is clear and

conclusive, the jury may but is not

obligated to draw the inference and find

that in doing the act charged in the

particular count under deliberation the

defendant acted knowingly and

intentionally.

Also the punishment provided by law

for the offense charged in the indictment

is a matter exclusively within the

province of the Court or judge and should

never be considered by the jury in any

way in arriving at an impartial verdict as

to the guilt or innocence of the accuse.

Any verdict must represent the

considered judgment of each juror. In

order to return a verdict, it is necessary

that each juror agree thereto. im other

words, your verdict must be unanimous.

It is your duty as jurors to consult

with one another and to deliberate in an

effort to reach agreement if you can do so

without violence to your individual

judgment. Each of you must decide the

case for yourself, but only after an

impartial consideration of the evidence in

the case with your fellow jurors.

In the course of your deliberations,

do not hesitate to reexamine your own

views and change your opinion if convinced

it is erroneous, but do not surrender your

honest conviction as to the weight or

effect of the evidence solely because of

the opinion of your fellow jurors or for

the mere purpose of returning a verdict.

A-46

Remember at all times you are not

partisans, you are judges, judges of the

facts. Your sole interest is to seek the

truth from the evidence in the case.

Upon returning to the jury room, you

should first select one of your number to

act as your foreman or forewoman who will

preside over your deliberations and will

be your spokesman here in Court.

A formal verdict has been prepared

for your convenience and at really

requires little explanation. It simply

states, "We the jury find the defendant,

Newton Gaspard", and there is a list of

the counts involved in this case and there

are blanks. You will either fill in the

blank guilty or not guilty on each

verdict, and you will take the verdict

form to the jury room, and when you have

reached a unanimous agreement, you will

have the foreman fill it in, date it and

sign it and then return to the courtroom.

If during the course of your

deliberations you should desire to

communicate with the Court, please reduce

your message or question to writing signed

by the foreman or forewoman and pass the

note to the marshal who will bring it to

my attention. I will then respond as

promptly as possible either in writing or

by having you return to the courtroom so

that I can address you orally. I caution

you, however, with regard to any message

or question you might send, you should

never state or specify your numerical

division at the time.

Now, I'm going to send along with the

verdict to the jury room two copies of the

indictment. As you know, I have read the

indictment once. I will not read it again

at this time except I want to remind you

A-48

again that the indictment is not evidence

against the accused and affords no

inference of guilt.

Do the attorneys need to approach the

bench for anything?

MR. MCMANUS: No, Your Honor.

MR. THEALL: No, Your Honor.

THE COURT: Juror number fifty-one,

Mr. Beverly?

MR. BEVERLY: Yes, sir?

THE COURT: Mr. Beverly, you are the

alternate juror, and therefore none of the

other jurors have had to be excused during

the course of the trial, so you will not

deliberate with the twelve-man jury. We

will be happy to have you remain here with

us. You can stick around or you will be

free to go, SO you will not go to

deliberate.

Mr. Marshal, would you please escort

the jury out?

A-49

I might say this. I am not sending

any of the exhibits at this time with you

to the jury room. If you all need any

exhibits that you need to review, please

send a request to me or to the marshal.

(Whereupon the jury was retired from

the courtroom to begin their

deliberations at 11:10 a.m.)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

UNITED STATES OF AMERICA CRIMINAL NO: CR

83-60059

VERSUS

18 U.S.C. $371;

NEWTON GASPARD, et al. $1341; $2

* * * * * _ * * * * e

DEFENDANTS' REQUESTED CHARGE NO. 14

DEFENDANTS' THEORY OF THE CASE-DIESEL

The defendants contend with respect

to the diesel charges that the supervisors

of Newton Gaspard within NL Baroid were

A-50

well aware of his connection with South

State Oil & Gas, Inc., and accepted it for

more than three years. Newton Gaspard

contends that he sought and obtained the

approval of his supervisors to sell diesl

to NL Baroid at competitive prices.

Defendants further contend that it was to

the benefit of NL Baroid to do business

with South State Oil & Gas, Inc., in that

Baroid was assured of a source of supply

even during fuel shortages, and was a

preferred customer of any other local

supplier. Defendants further contend that

NL Baroid did not lose any money as a

result of doing business with South State

Oil & Gas, Inc., but actually spent less

than it would have otherwise. Defendants

contend that they dealt with NL Baroid

openly and above board and in good faith,

and did not conceal the relationship

between Newton Gaspard and South State Oil

A-51

& Gas. They further contend that NL

Baroid as a routine practice knowingly and

regularly did business with its own

employees or their families.

Authority: Recommendations of Devitt and

Blackinar, Federal Jury Practice and

Instructions, 3d ed. 1977, in 1983 pocket

part of pp. 627 and 629; U.S. V. GOSS, 650

F. 2d 1336, at 1344 (5th cir. 1981).

THEALL & FONTANA

BY:/s/ GARY E. THEALL

ATTORNEY FOR “DEFENDANTS

A-52

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

UNITED STATES OF AMERICA CRIMINAL NO:

CR 83-60059

VERSUS

18 U.S.C. 8371;

NEWTON GASPARD, et al. 81341; $2

* * * * * * * x * * *

DEFENDANTS' REQUESTED CHARGE NO. 15

DEFENDANTS' THEORY OF THE CASE-TANK

CLEANING

Defendant, Newton Gaspard, contends

with respect to the tank Cleaning charges

that in his capacity as supervisor of the

Intracoastal City Office of NL Baroid, he

solved a problem to the mutual benefit of

all concerned by establishing a tank

Cleaning business. He contends that tank

cleaning was not a part of the duties of

the Nl Baroid employees but was normally

contracted out. He contends that the

problem arose when outside tank cleaning

services became so expensive that NL

Baroid customers, to whom this cost was

passed on, began to complain and in some

instances refused to pay, causing NL

Baroid to suffer a loss. He contends that

NL Baroid employees at Intracoastal City

were paid for 16 hours and were on the

premises 24 hours per day for three days

at a time, and there were many occasions

when there was not enough NL Baroid work

within their job classifications to fill

16 hours. He conceived the idea of

allowing these NL Baroid employees to

replace the tank cleaning crews in their

Spare time, provided it did not interfere

with their assigned NL Baroid duties. He

contends that he acted in good faith, and

that his action resulted in lower cost to

NL Baroid, more satisfied customers, extra

pay for NL Baroid employees, and at no

time interferred with their NL Baroid

duties.

Authority: Recommendations of Devitt and

Blackmar, Federal Jury Practice and

Instructions, 3d ed. 1977, in 1983 pocket

part of pp. 627 and 629; U.S. v. Goss, 650

F. 2d 1336, at 1344 (5th Cir. 1981).

THEALL & FONTANA

BY:/s/GARY E. THEALL

ATTORNEY FOR

DEFENDANTS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

UNITED STATES OF AMERICA

CRIMINAL ACTION NO:

VERSUS —83-60059-01

NEWTON GASPARD SECTION O

MEMCBANDUN RULING ON MOTION FOR

JUDGMENT OF ACQUITTAL NOTWITHSTANDING

THE VERDICT OR IN THE ALTERNATIVE, FOR

"A NEW TRIAL

The defendant's Motion for Judgment of

Acquittal Notwithstanding the Verdict, or

in the Alternative, for a New Trial was

submitted to the Court on the briefs of

counsel and without the necessity of oral

argurment.

The defendant's motion is based on the

ground that the verdict lacks substantial

evidence to convict defendant of fraud in

connection with his sale of diesel to his

employer, N.L. Baroid, his operation of a

tank cleaning business on the premises of

N.L. Baroid with the use of N.L. Baroid

employees and equipment, and that the

record does not contain substantial

evidence that N.L. Baroid paid for the

concrete that the defendant procured from

Young for his personal use at residences of

members of his family. Finally, defendant

contends he is entitled to a new trial due

to improper remarks made by the prosecutor

in closing argument in characterizing the

A-56

defendant as some sort of kingpin whose

powers extended over South Louisiana and

one with whom his superios were afraid

to deal, and that a letter introduced into

evidence by the defendant was a forgery.

In regard to the counts involving the

diesel sales, the record is clear that

defendant made a profit on each gallon sold

to his employer. The record is also clear

to the effect that on most occasions when

Baroid employees were working for defendant

in his tank cleaning business they were

being paid by N. L. Baroid to do work for

N. L. Baroid. It is also clear that

there was substantial evidence for the jury

to conclude that N. L. Baroid paid for the

concrete delivered to the two homes as_ is

evicenced by the checks introduced in

evidence.

In Glasser v. United States, 315 U.S.

60, 62S. Ct. 457, 86 L. Ed. 680 (1942),

A-57

the Court stated that it was not for’ the

justices "...to weigh the evidence or to

determine the credibility of witnesses.

The verdict of a jury must be sustained if

there is substantial evidence, taking the

view most favorable to the government, to

Support it." Supra, p. 80. In the present

Situation, there were facts before the

jury as to each and every element of the

crime charged . This Court's inquiry here

is limited to considering whether evidence

was admitted sufficient to ground a belief

by the jury that beyond a reasonable doubt,

the defendant in this case was guilty of

the crime charged. United States v.

Burnette, 524 F.2d 29 (5th Cir. 1975).

The Court finds that from the evidence and

facts presented, the jury could have

reasonably determined guilt.

The Court does not find that counsel

A-58

for the government made any improper

remarks in arguing his case. Much latitude

is permitted counsel in arguing his’ case.

Counsel may state his views of the evidence

and various inferences’) and conclusions

which he believes the jury should draw from

the testimony. In regard to the copy of

the letter offered in evidence, the alieged

author testified that he recognized his

Signature but did not believe he ever wrote

such a ietter to the defendant. The Court

cannot say that the prosecutor's suggestion

to the jury that the letter was a forgery

constitutes plain error. Likewise,

counsel's reference to the fact that

defendant was a kingpin and his’ superiors

were afraid of him is not in the Court's

opinion an improper remark and certainly

not reprehensible or prejudicial to the

defendant.

Thus, the defendant's Motion for

BEST AVAILABLE COPY

Judgment of Acquittal Notwithstanding the

Verdict or in the Alternative for a New

Trial, is DENIED.

Opelousas, Louisiana, March 23, 1984.

/s/JOHN M. SHAW

UNITED STATES

DISTRICT JUDGE

A-60

UNITED STATES COURT OF APPEALS

For The Fifth Circuit

No. 84-4233

UNITED STATES of America,

Plaintiff-Appellee,

Newton GASPARD,

Defendant-Appellant.

Appeal for the United States District

Court for the Western District of

Louisiana

Decided and Filed October 9, 1984.

Before GARZA, REAVLEY and JOHNSON,

Circuit Judges.

JOHNSON, Circuit Judge:

Defendant Newton Gaspard was

convicted on twelve counts of mail fraud

for violations of 18 U.S.C. §$ 1341. He

received twelve concurrent sentences of a

year and a day and was fined a total of

$12,000.00. Gaspard alleges nine points

of error. We reject his contentions and

affirm the convictions.

I. Background

The twelve counts arise out of

Gaspard's employment at NL Baroid

("Baroid"), a major manufacturer and

distributor of drilling mud and other

products used in the oil industry.

Gaspard's employment responsibilities

included directing the ordering,

purchasing, and receiving of materials to

Baroid from outside vendors and insuring

the distribution of Baroid products to its

customers.

The twelve counts on which Gaspard

was convicted! may be divided into three

groups. Counts I through V deal with

Gaspard's majority ownership of South

State Oil & Gas ("SSOG"). These counts

allege that Gaspard defrauded Baroid by

Buying diesel for SSOC [sic] , storing

that fuel in Baroid's own tanks, and then

"selling" that diesel to Baroid at a

higher price. Counts VI through X concern

Gaspard's operation of Ed's Tank Cleaning

Service and Cajun Tank Cleaning.

According to the indictment, Gaspard used

Baroid employees (often while they were on

duty to Baroid) then billed Baroid for the

services supposedly performed by Ed's Tank

Cleaning. Counts XV and XVI allege that

Gaspard had concrete poured at the homes

of relatives, approved the concrete

invoices as having been received by

Baroid, and then cause Baroid to pay for

the concrete. All twelve counts alleged

use of the mails to accomplish these aims.2

II. Sufficiency of the Evidence

In addition to showing use of the

mail in a mail fraud case, the government

must show a scheme or artifice to defraud.

This Court has held that the mail fraud

statute extends to situations in which an

employee intentionally fails to disclose

information material to his employer that

he has a duty to disclose. See United

States v. Ballard, 663 F.2d 534 (5th Cir.

1981) (focusing on duty to disclose and

materiality). In addition, the government

must show that "the violation of [the]

fiduciary duty, though an act of fraud

within the meaning of the statute, [is]

coupled with the additional findings that

the defendant devised a scheme to defraud

and did so with specific intent to

defraud." United States v. Goss, 650 F.

2d 1336, 1346 (5th Cir.1981).

Gaspard's main contention is’ that

although he may well have breached a

fiduciary duty to Baroid in operating SSOG

and Ed's Tank Cleaning, the evidence was

insufficient to show that he intended to

conceal or misrepresent his involvement

with SSOG or Ed's Tank Cleaning. Instead,

Gaspard contends, the evidence shows that

Baroid officials knew of his involvement

with SSOG and Ed's Tank Cleaning and that

Baroid gave tacit, if not explicit,

approval.

In reviewing the sufficiency of the

evidence, this court is to determine

whether, considering the evidence in the

light most favorable to the government, "a

reasonable trier of fact could find that

the evidence establishes guilt beyond a

reasonable doubt." United States v. Bell,

678 F.2d 547, 549 (5th Cir.1982) (en

banc). Further, the jury may infer an

intent to defraud from all the facts and

circumstances surrounding the transaction.

United States v. O'Keefe, 722 F.2d 1175,

1181 (5th Cir.1983). An examination of

the record reveals more than adequate

evidence to support the jury's

determination regarding Gaspard's

ownership of SSOG on this standard.

Baroid's work required a great amount of

diesel. Gaspard served as a district

operating supervisor until his termination

on November 12, 1982. From January i981

to October 1982, Gaspard purchased diesel

for Baroid from Gaspard's own company

(SSOG). The testimony at trial indicated

that Gaspard would buy diesel in the name

of SSOG, have it delivered to Baroid's own

tanks, and then sell it (again in the name

of SSOG) to Baroid at a profit. See Rec.

Vol. IV, at 183; Vol. V, at 301; Vol. IV,

at 122; Vol. V at 360. By the admission

of Gaspard's son, SSOG had little or no

physical assets; it had no fuel _ tanks,

hoses, or trucks. Rec.Vol. V, at 301.

The jury also had before it evidence

showing that Gaspard had failed to obtain

company permission to sell fuel to NL

Baroid. When initially confronted with

his ownership of SSOG, Gaspard stated that

he had received such authority ina letter

from Baroid supervisor Tom Parker, but was

unable to produce the letter. 3 Rec.Vol.

III at 8-9. While Gaspard contends that

his supervisors knew of his ownership of

SSOG, this testimony was impugned by

convincing evidence that Gaspard had paid

or offered "kickbacks" to a number of

company supervisors. 4 Furthermore, these

supervisors were only Gaspard's immediate

supervisors in the area. On the other

hand, Robert E. Killion, regional manager

for Baroid and Gaspard's highest-ranking

supervisor to testify, stated that he had

neither given permission to Gaspard to

sell diesel to Baroid nor had any

knowledge of Gaspard's ownership of SSOG.

Rec.Vol. V at 370-71. A fair reading of

the record indicated that, while some of

the local supervisors (tainted or

otherwise) may have known of Gaspard's

activities, there is no indication in the

record that any of the supervisors outside

of the immediate area had such knowldege

or gave such consent. Finally, when

Baroid did find out about Gaspard's

ownership of SSOG, it did not react as a

company "which had known all along" but

instead moved quickly to terminate

Gaspard. See Rec.Vol. III at 12.

There is also more than adequate

evidence to uphold the jury's convictions

on Counts VI through xX (Ed's Tank

Cleaning) and XV through xXVI_ (concrete

pouring). Gaspard used Baroid employees

(often on Baroid's time) to clean’ tanks

with Baroid equipment. He then submitted

bills to Baroid for the services as if

they had been performed by an independent

contractor. Baroid investigator William

Edwards testified that Gaspard told him

that he had stopped Ed's Tank Cleaning

"because he [Gaspard] felt that he was

doing something wrong." Rec.Vol. III at

10. As for the concrete pouring counts,

the evidence demonstrated that Baroid had

paid for the concrete poured at the homes

of Gaspard's relatives and that Gaspard

had attempted to cover up at least one of

these payments by repaying the cement

contractor after the investigation had

begun. Rec.Vol. IV at 217-19, 236.

III. Improper Jury Argument

Gaspard chalienyes three statements

made by the prosecutor during closing

argument. Since Gaspard failed to object,

this Court reviews the statements under

the "plain error" standard, that is,

whether any error that may have been

committed affected the substantial rights

of the defendant. See Fed.R.Crim.P.

52(b); United States v. Garza, 608 F.2d

659, 665 (Sth Cir.1979).

The third statement challenged is the

only one that merits consideration. This

third statement by the prosecutor related

to a letter, allegedly signed by ravis

Kieffer, one of Gaspard's superiors. The

letter acknowledged that Gaspard was

selling diesel to Baroid through SSOG.

Rec.Vol. V at 299-300. As it was noted

earlier, the letter, found two or three

days before trial by Gaspard's son, was of

somewhat questionable authenticity. See

note 4 supra. Arguing this point to the

jury, the prosecutor contended: " [The

ietter] is a paste up. This is a phony.

It's a fraud ... Well, I think I was wrong

because now there's a fourth scheme, a

fourth fraud, and that is this bogus

letter, the fourth scheme [.] [B] ut now

there's a new victim. And who's’ the

victim now? I submit to you, ladies and

gentlemen , you are." Defendant's Brief

at 35-36.

Although this statement is

objectionable,’ it does not amount to

plain error in the context of the case at

bar. The statement does not indicate that

the government was indeed charging Gaspard

with a fourth fraud nor did the prosecutor

imply that he had some special knowledge

that Gaspard had committed an additional

crime. Cf. United States v. McPhee, 731

F.2d 1150, 1152-1153 (Sth Cir.1984)

(argument improper where prosecutor

implied he had special knowledge that

defendant committed additional crimes).

Further, the evidence particularly with

regard to Counts VI through xX and XV

through XVI is strong such that the

argument did not prejudice Gaspard's right

to a fair trial See id. at 1152.

IV. Admission of Evidence

Gaspard challenges the introduction

of a summary and chart into evidence and

contends that its introduction is

reversible error. The chart served as an

aid to the testimony of FBI agent Owen

Odom, who summarized evidence previously

introduced through other witnesses. Rec.

Vol. IV at 245-52. While the district

court may have erred in admitting the

chart into evidence or in failing to give

a cautionary instruction. See J.

Weinstein, Evidence 41006 [07] (1983),

any error that may have been committed is

A-72

not reversible. Agent Odom's testimony

concerned the magnitude of Baroid's loss

on each of the three sets of counts. See

Rec.Vol. IV at 247-50. The precise

magnitude of the loss is not crucial, and

the evidence is overwhelming that Baroid

suffered a loss on each of the three _ sets

of counts of the indictment..

V. Conclusion

The Court has examined Gaspard's

other grounds of error and finds that they

do not constitute reversible error.

Accordingly, the judgment of the district

court is

AFFIRMED.

Foot Notes:

i. Originally there were sixteen counts

in the indictment. Counts XI through XIV

were severed from the twelve counts at

issue here and were dismissed without

prejudice after the instant conviction.

See Rec.Vol. II at 232-34.

A-73

2. Gaspard, for the first time on appeal,

argues that Counts I through xX are

insufficient in failing to allege the

elements of mail fraud. This argument is

without merit. This Court has explicitly

held that the essential elements of an

indictment for mail fraud are "(1) a

scheme to defraud (2) which involved a use

of the mails (3) for the purpose of

executing the scheme." United States v.

Kent, 608 F.2d 542, 545 (5th Cir.1979)

cert. denied, 446 U.S. 936, 100 S.Ct.

2153, 64 L.Ed.2d 788 (1980). See also

United States v. Freeman 619 F.2d 1112

(Sth Cir.1980), cert. denied sub. nom.,

Patrick Petroleum Corp. of Michigan v.

United States, 450 U.S. 910, 101 S.Ct.

1348, 67 L.Ed.2d 334 (1981). Contrary to

Gaspard's contentions, the Court has held

that the "indictment need not specifically

charge, but the government must prove ‘a

specific intent to commit fraud.' x

Freeman, 619 F.2d at 1117 (quoting Kent,

609 F.28 S643 Wa See See also United

States v. Goss, 650 F.2d 1336, 1346 (5th

Cir.i98i}. The indictment here meets the

Kent-Freeman standard.

Even if Kent-Freeman did not apply,

however, the indictment is sufficient.

Since Gaspard did not challenge the

indictment below, this Court will reverse

only if the indictment "cannot within

reason be construed to charge a crime."

United States v. Cauble, 706 F.2d 1322,

1333 n. 25 (Sth Cif. 1983), Gert. denied,

eooceo= U.S. wore---, 104 §.Ct. 966, 79

L.Ed.2d 229 (1984). Although Gaspard

contends that the indictment fails to

allege concealment or specific

misrepresentation, Counts I through V

i) ek ee

Clearly alleged that Gaspard formed the

SSOG scheme "intending to ... defraud and

to obtain money under false and fraudulent

pretenses...." Rec.Vol. I at 3. Likewise,

Counts VI through X charged that Gaspard

"devised a scheme and artifice to

defraud...." Id. at 7. From this, a fair

reading of the indictment shows’ that

Gaspard was fairly informed of all

elements of mail fraud, including the

specific intent to defraud. Id. at 1333.

See also United States v. Howell,: 719 F.2d

1258, 1261 (5th Cir.1983) (indictment

sufficient where it states essential

elements of offense and gives sufficient

notice so that defendant may prepare his

defense).

3. A different letter, signed by a Baroid

district manager, Travis Kieffer, stated

that Gaspard's ownership of SSOG was know

to some supervisors, but the letter was of

questionable authenticity. See Rec.Vol.

V at 273-75.

4. Gaspard's immediate supervisor,

Woodrow Wilson, testified Gaspard gave him

a check for a kickback. Rec.Vol. IV at

148-50; Rec.Vol. III at 12. Gaspard also

offered a kickback to supervisor Travis

Kieffer. Rec.Vol. Vat 273. District

Manager Thomas Parker stated that he had

never given Gaspard permission to sell

diesel to Baroid and had no-~ direct

knowledge of Gaspard's sales to Baroid

through SSOG. Rec.Vol. IV at 134, 139.

Operations Manager Dayton King, whose

office was in Lafayette, testified that he

had "heard" that Gaspard was selling

diesel to Baroid but at no time granted

permission for Gaspard to do so. Rec.Vol.

A-75

V at 315-16.

$. At oral argument in the instant

appeal, the court urged the government's

counsel to take action so that statements

such as the one here----which puts’ the

jury in the role of the victim----are not

made. The Court's ruling here that such

argument does not amount to plain error

does not condone such appeals to the jury.

6. Gaspard also contends on this appeal

that the admission of two other charts

constitutes reversible error. These

charts illustrate Baroid's invoice

processing and SSOG'‘'s purchase and sales.

Gaspard's counsel failed to object. This

Court reviews the admission of the charts

on the "plain error" standard. United

States v. Lacoste, 721 F.2d 984, 988 (5th

Cir.1983). No such error was committed.

A-76

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 84-4233

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

NEWTON GASPARD,

Defendant~-Appellant.

Appeal from the United States District

Court for the Western District of Louisiana

ON PETITION FOR HEARING AND SUGGESTION FOR

REHEARING EN BANC

(Opinion10/09/84, 5 Cir., 196.4

F.2d __)

(November 7, 1984)

Before GARZA, Senior Judge, REAVLEY and

JOHNSON, Circuit Judges.

PER CURIAM:

( x) The Petition for Rehearing is DENIED

and no member of this panel nor Judge in

regular active service on the court having

requested that the Court be polled on

rehearing en banc, (Federal Rules of

Appellate Procedure and Local Rule 35) the

Suggestion for Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED

and the Court having been polled at _ the

request of one of the members of the court

and a majority of the Circuit Judges who

are in regular active service not having

voted in favor of it, (Federal Rules of

Appellate Procedure and Local Rule 35) the

Suggestion for Rehearing En Banc is also

DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause en banc,

and a majority of the judges in active

service not having voted in favor Gf it,

renearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/SAM JOHNSON

United States Circuit Judge

11/5/84 REHG-6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.