Petition for Writ of Certiorari — Hodder v. United States

| Suprame Court, Us,

97-1509 | PikeD

MAR § ivee

SORRPH F, SPANION, 41

OUERK

SCE o Seca ceeoreeenanmen

No. 87-

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1987

DAVID T. HODDER,

Petitioner,

Vv.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN H. HODDER

1131 N.E. 86th Street

Miami, FL 33138

(305) 751-8706

Attorney for petitioner David T. Hodder

March 9, 1988

ON RESENTE

1. Where a district court makes

special findings that demonstrate that it

convicted the defendant of participating

in a conspiracy that differed in time and

object from the conspiracy alleged in the

indictment, may a federal court of appeals

rely upon the lower court's otherwise

unsupported general finding tracking the

language of the indictment as negating the

existence of a prejudicial variance?

2 Do this Court's decisions

defining prejudicial variances require

reversal where

(a) the indictment alleged that

a private contractor entered into a pre-

award conspiracy with a federal employee

to obtain the award of a government

contract in exchange for an agreement to

award a sub-contract to the federal

employee, and

(b) where the prosecution sought

only to prove and the district court's

detailed special findings that show that

it convicted the private contractor of

entering into a post-award conspiracy in

connection with the award of the _ sub-

contract solely in the expectation that

"subtle benefits" would accrue as a result

of the federal employee's receipt of an

improper benefit?

3. Did the combination of

(a) the overbroad conspiracy

count;

(b) the improper multiplication

of one aiding and abetting count into

thirteen that resulted in the reversal of

the convictions on twelve of those counts;

(c) the district court's refusal

to grant separate trials for the private

contractor, who had proclaimed his

innocence, and the federal employee, who

had admitted his guilt; and

ii

(d) the prosecution's decision

to rely solely upon indirect and

circumstantial evidence

so far prejudice the private contractor's

right to a fair trial as to call for

review by this Court to determine whether

the judgment below can be reconciled with

the decisions of other courts of appeal or

sanctioned a departure from the proper

course of judicial proceedings that should

be corrected?+

1 Petitioner was tried with a co-

defendant Richard C. Jewell. The court of

appeals heard the cases together but

issued separate opinions.

iii

TABLES OF CONTENTS

QUESTIONS PRESENTED........+e2+e+- i

TABLE OF AUTHORITIES... -seeeeeeeeee¥

PETITION. ..cccccccccccvcccscecscceeel

OPINIONS BELOW... .cccccceceseeeeseel

JURISDICTION... cccccccccccsssesesesa

STATUES INVOLVEDIONS...---eeeeeeseeed

STATEMENT OF THE CASE....eeeeeeeee3

REASONS WHY REVIEW SHOULD BE

gd ee ee eS

CERTIFICATE OF SERVICE......+++++.28

APPENDIX

Memorandum, United States v.

Hodder, No. 86-1324 (9th Cir.

Sept. 8, 1987) eccccccccsccccccsced

Opinion and Verdicts, United

States v. Hodder, et al.,

CR-N-85-42-HDM (D. Nev.

Jul. 25, 1986) -cccccccccscccscseeed

Opinion, United States v.

Jewell, No. 86-1360 (9th Cir.

Sept. > F 1987) cccccccccccccecscead

TUGGMENC.. cc ccceceecessesevesesd3

pc PPP TPT TT TTTerrrriry |.

Statutes Involved.....ceeeeeeee +66

iv

TABLE OF AUTHORITIES

Statutes and Rules

18 U.S.C.

POPU reerrrrerrrrerrrrrrs

18 wee Ce ri T¢ \Prrererrererrrrrrr ey.

8

§

18 U.S.C. § B7liccccccccecccecccseeed

28 U.S.C. § 1254(1) wc cece ccccccceeed

Rule 23(c), Federal Rules of

Criminal Procedure............+.--18

Cases

ers ’

470 U.S. 564 C29SS) coccecssccesesat

v. W :

206 B.GE. BEST (ASSES) vcccccessecdll

Berger v. United States,

295 U.S. 78 (1938) cccccccccccece sd

otte s & es,

328 U.S. 750 (1946) cccccccccccesalé

Stirone v. United States,

se © ae we. peers

United States v. Brown, 716 F.2d

O57 CFG GiS. BSSD) coccccccsssaell

United States v. Little, 753 F.2d

2430 (SEGR CaF. 1964) cccccccresscad

United States v. Weischenberg,

604 F.2d 326 (5th Cir. 1979) 14, 22

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

DAVID T. HODDER,

Petitioner,

v.

THE UNITED STATES OF AMERICA,

Respondent.

David T. Hodder petitions the Court

to issue a writ of certiorari to the

United States Court of Appeals for the

Ninth Circuit to review the judgment that

court entered against hin.

OPINIONS BELOW

The opinion of the court of appeals

was not reported. It is set out in the

appendix to this petition at 1- 7. The

district court made specific findings in

an Opinion and Verdicts that was not

reported. The Opinion and Verdicts is

set out in the appendix at 8 - 22. Peti-

tioner was tried with a co-defendant and

their separate appeals were consolidated

for argument. The court of appeals issued

an opinion in the companion case that is

reported as United States v. Jewell, 827

F.2d 586 (9th Cir. 1987). A copy of the

opinion is set out in the appendix at 23 -

32.

JURISDICTION

The judgment of the court of appezls

was entered on September 4, 1987 (A. 33).

A timely petition for rehearing and sug-

gestion for rehearing en banc was filed

and was denied by the court of appeals on

December 10, 1987. On February 11, 1988

the Court extended the time within which

this petition might be filed until March

9, 1988 (O'Connor, J.). The petition was

filed on that date. The Court's jurisdic-

tion is invoked pursuant to 28 U.S.C. §

1254(1).

STATUTES INVOLVED

Petitioner was convicted of a con-

spiracy to defraud the United States in

violation of 18 U.S.C. § 371 and of aiding

and abetting, in violation of 18 U.S.C. §

2, a federal employee and co-defendant be-

low who violated the provisions of the

federal employee conflict of interest

statute codified at 18 U.S.C. § 208(a).

The provisions of the three statutory sec-

tions involved are set out in the appendix

at 66 - 68.

STATEMENT OF THE CASE

Introduction

This case is about government con-

tracting. Petitioner David Hodder, a for-

mer Chief Scientist at North American

Rockwell, is the sole proprietor of Geo-

scientific Systems and Consulting ("GSC"),

a small Southern California, earth science

consulting firm with remote sensing exper-

tise. Through GSC, Hodder undertook to

perform for the U.S. Department of the In-

terior, Bureau of Land Management (BLM),

an air quality survey in Nevada. The con-

tract was offered under the federal gov-

ernment's small business set aside pro-

gram. After advertisement and mailing of

eigthy-two bid solicitations, one of which

BLM mailed to GSC, BLM received three

timely bid proposals. Linda Warney, A BLM

regional contracter officer in Denver,

awarded the ccntract to GSC based upon the

favorable recommendation of a Technical

Proposal Evaluation Committee (TPEC) and

the fact Mr. Hodder agreed to perform the

Nevada Air Quality Study at for less than

the cost proposed by the next closest bid-

der.

This case arose after completion of

the contract when the government discov-

ered that a federal employee, Richard Jew-

ell, the Contract Officers Authorized Rep-

resentative (COAR), had benefitted from

work performed on the contract which he

had supervised in violation of the federal

conflict of interest statute. Mr. Jewell

admitted that he controlled a company to

which, aerial photography, a component of

the main contract, had been subcontracted.

The government filed an indictment

that sought to impose criminal liability

on the private contractor, Mr. Hodder, as

a conspirator and an aider and abetter for

the admitted violation by the federal em-

ployee. The indictment alleged a conspir-

acy that predated and had as its object

for Hoddler obtaining a government con-

tract for GSC.

At trial, the government declined to

present any evidence of a pre-award con-

spiracy. Instead, it offered circumstan-

tial evidence to support its claim that

Hodder entered into a conspiracy with and

begain aiding and abetting Jewell, the

government employee, some four months af-

ter the award of the contract.

The Indictment

The indictment alleged that a private

contractor had conspired with a federal

employee to defraud the United States (A.

35 =- 49). The private contractor was

David T. Hodder, chief scientist and owner

of Geoscientific Systems and Consulting

("GSC") of Playa del Rey, California. The

federal employee was Richard C. Jewell, a

GS-12 hydrologist employed by the federal

Bureau of Land Management ("BLM") at its

Nevada office.

The grand jury alleged a conspiracy

that antedated and, from Hodder's stand-

point, had as its object the award of a

BLM contract to GSC. According to the in-

dictment, the conspiracy was established

"(bjeginning on or about November 1980"

(A. 37). The indictment alleged that

"(ijt was a part [or a further part] of

the conspiracy": (1) that Jewell proposed

a study of the air quality of Nevada that

involved aerial photography; (2) that, on

December 29, 1980, Hodder submitted a pro-

posal on behalf of GSC that included a

component for aerial photography; (3) that

Jewell used his position as chair of a

technical proposal evaluation committee to

recommend that negotiations be conducted

only with Hodder and GSC; and (4) that

Hodder agreed to subcontract the specified

aerial photography work through a series

of conduit organizations so that the work

would be performed by Jewell for Jewell's

personal benefit and profit. (id. at 40 -

41). The grand jury explicitly alleged

that: (1) Hodder's submission of the GSC

proposal "[o]n or about December 29, 1980"

and (2) Jewell's participation at the

evaluation committee meeting “on or about

January 5-7, 1981" were “overt acts" com-

mitted "(ijn furtherance of the above de-

scribed conspiracy and to accomplish its

objectives" (id. at 44 - 45).

The remaining overt acts alleged in

the indictment concerned events that began

four months after the award of the con-

tract, in April 1981, in connection with

Hodder's selection of the aerial photogra-

phy subcontractor and with the performance

and progress payments made over the re-

mainder of the contract. Specifically,

the indictment alleged: (1) that in April

1981, Hodder formed an affiliate, Geo

Satellite Surveys ("GSS"), to which GSC

subcontracted the taking and analysis of

the aerial photographs required by the

contract; (2) that in May 1981, Jewell

rented a post office box for the two com-

panies through which he concealed his

role, Hamilton Photography and J-Co Aerial

Surveys ("J-Co"); and (3) that as part of

the conspiracy, GSS subcontracted the

aerial photography to Hamilton Photography

which in turn subcontracted the same ser-

vices to J-Co. (A. 41, 44 - 45.)

According to the indictment, Hodder

and Jewell each committed a further and

separate offense each time Jewell approved

a request for progress payment under the

contract. Between June 17, 1981, and

September 1982, Jewell approved thirteen

such progress payments. The indictment

alleged that in each occasion, Jewell

committed a separate violation of the fed-

eral employee conflict-of-interest provi-

sions codified at 18 U.S.C. § 208(a).

Hodder was charged with thirteen counts of

aiding and abetting Jewell in these viola-

tions. (A. 49 - 63.)

The Trial

Hodder and Jewell were tried in a

"dual" trial by the district court sitting

without a jury. Before the trial began,

Jewell admitted that he had violated the

provisions of 18 U.S.C. § 208(a) by per-

sonally profiting from the aerial photog-

raphy subcontract. He challenged the con-

spiracy count and argued that he could

only properly be convicted of a single vi-

olation of _— conflict-of-interest

statute. Hodder denied that he had con-

spired to defraud the government or that

he had intended to aid and abet Jewell's

criminal activity in any way and sought a

separate trial.

At trial, the government made no at-

tempt to prove the establishment of the

conspiracy alleged in the grand jury's

indictment. The government offered no ev-

idence, direct or indirect, to suggest any

contact between Mr. Hodder and Mr. Jewell

concerning the air quality prior to Jan-

uary 7, 1981. Mr. Hodder's testimony was

consistent with the government's evidence

and was inconsistent with a finding of any

impropriety. At the close of the trial,

the court reserved its ruling. Two weeks

10

——

later, the district court filed an Opinion

and Verdict, making detailed specific

findings of fact as well as a general

finding that Hodder was guilty of

conspiracy and of thirteen aiding and

abetting offenses.

h Ss Cc urt's dings

The district court's special findings

make it clear that it had convicted Hodder

of having entered into ae post-award

conspiracy in connection with the award of

the aerial services subcontracts to GSS in

April 1981 and thereafter to Hamilton

Photography and J-Co. (A. 8 = 22) The

court specially found "that Defendant Jew-

ell established Hamilton Photography and

Defendant Hodder established GSS for the

purpose of insulating and disguising pay-

ments from the Bureau of Land Management

to Jewell through Hodder" (id. at 11 -

12). To establish Hodder's post-award

knowledge the court relied upon circun-

11

stantial evidence concerning invoices sub-

mitted in May 1981 and payments made in

October 1982. The import of these find-

ings are confirmed by two further special

findings. The court found that:

- « » it appears clear that Jew-

ell was motivated by the mone-

tary benefits he derived under

the agreement. The benefits to

Hodder, while more subtle, were

quite real. In addition to the

additional monetary benefits he

derived from the handbook [a

mid-1982 addition to the con-

tract], he insured a continued

close relationship with Defen-

dant Jewell and could expect

only superficial scrutiny over

his contract.

(A. 16.) Finally the district court

explicitly found that the only "overt

acts" in furtherance of a conspiracy were

those beginning in April 1981, “the overt

acts set forth in paragraphs 3 through 16

on pages 7 through 9 of the Indictment"

(id., p.- 6). The district court did not

find that the first two overt acts alleged

by the grand jury, the only two overt acts

12

that antedated the award of the main con-

tract were a part of the conspiracy for

which it convicted Hodder. These specific

findings conflict with the district

court's general finding of guilt (id. p.

6).

The court of appeals reversed twelve

of the aiding and abetting convictions as

multiplicitous, but affirmed the _ con-

victions on the conspiracy count and an

unspecified aiding and abetting count. +

REASONS FOR GRANTING REVIEW

There are three specific reasons why

the Court should grant review in this

case. The decision conflicts with the law

concerning prejudicial variances estab-

lished by decisions of this Court. The

question whether a court of appeals may

rely upon a general finding that conflicts

1. The court's decisions in this and in

the companion case, United States v. Jew-

ell, No. 86-1360 (Sept. 12, 1987) are

reproduced in an Appendix ("A.") to this

petition for convenience.

13

with special findings of fact made by the

district court raises a question of ex-

ceptional importance to the proper admin-

istration of justice and the proper allo-

cation of functions between the courts of

appeals and the district courts. The

court of appeals decision rejecting the

Claim of unfair prejudice in the prosecu-

tion and trial appears inconsistent with

the standard established in the Fifth Cir-

cuit in United States v. Weischenberg, 604

F.2d 328 (5th Cir. 1979). Two aspects of

this case enhance the importance of those

reasons and independently establish the

need for review by this Court. This is

the first decision in which the government

has used conspiracy and aiding and abet-

ting theories to impose criminal liability

upon a private contractor for a federal

employee's violation of the conflict-of-

interest statute. Petitioner does not

contend that those theories are not avail-

14

able to the government in a proper case.

He does submit, however, that the use of

those theories in the context of govern-

mental contracting raises important ques-

tions that require guidance from the

Court.

l. This Court should grant review

because the decision of the court of ap-

peals conflicts with the decisions of this

Court governing prejudicial variances.

Hodder claimed that there was a fatal

variance, but the court of appeals over-

looked or misapprehended the nature of the

variance claimed and the law of the cir-

cuit on this point. This is not merely a

case in which the trial court "did not

consider that al] of the acts specified in

the indictment were part of the conspir-

acy” (A. 4).

The indictment alleged a conspiracy

that was formed prior to and had as its

object the award of the general contract.

15

The trial court, however, specifically de-

clined to find that any of the pre-award

overt acts alleged were part of the con-

spiracy. Moreover, the trial court

specifically found that the conspiracy to

defraud had been formed some four months

after the award of the general contract in

connection with the award of a subcontract

with "subtle benefits" being the only ob-

ject on the private contractor's side.

The court of appeals failed to consider

whether those special findings established

that the private contractor may have been

convicted of a conspiracy other than the

one alleged by the grand jury for which

reversal would be required.

The court of appeals decision con-

flicts with the precedents adopted by this

court and the policies those precedents

were intended to establish. See Berger v.

United States, 295 U.S. 78 (1935); Kot-

teakos v. United States, 328 U.S. 750

16

(1946); Stirone v. United States, 361 U.S.

212 (1960).

2. This case poses an important

question concerning the proper role of the

courts of appeals in reviewing judgments

in cases where a district court has made

detailed special findings based upon the

evidence presented to it. There was a

conflict between the district court's spe-

cial findings of fact and its general

finding of guilt. The district court's

special findings make it clear that it had

convicted the private contractor of a

post-award conspiracy that varied substan-

tially from the conspiracy alleged by the

grand jury. The appellate court, however,

relied upon the district court's general

finding of guilt “using the precise words

of the indictment" (A. 3) to affirm the

conviction.

The precise issue has not been ad-

dressed, but an appellate decision relying

17

upon a general finding that conflicts with

the trial court's special findings would

render the provisions of Rule 23(c) of the

Federal Rules oof Criminal Procedure

meaningless. See United States v. Brown,

716 F.2d 457 (7th Cir. 1983) (for an il-

lustrative analysis of the function spe-

cial findings should play in an analogous

case based upon circumstantial evidence) ;

compare Anderson v. City of Bessemer City,

105 U.S. 1504 (1985) and Icicle Seafood,

Inc. v. Worthington, 106 S. Ct. 1572

(1986).

The decision to rely upon a general

finding that conflicted with the district

court's specific findings of fact in-

terjected an issue of exceptional impor-

tance into this case concerning the proper

role of the court of appeals in reviewing

findings made by a district court. The

issue is clearly presented. Hodder's

principal claim on appeal was that the

18

CO

evidence was wholly insufficient to sup-

port a finding that he had entered into

the pre-award conspiracy alleged by the

grand jury and that the district court had

unfairly convicted him of a post-award

conspiracy having an object different from

that alleged by the grand jury. The spe-

cific and detailed findings of fact made

by the trial court support that view.

At a minimum, these claims, in light

of the specific findings made by the trial

court, must impose an enhanced burden on

an appellate court to identify evidence in

the record that would have supported the

additional specific findings necessary to

sustain a conviction on the conspiracy al-

leged in the indictment. The unexplained

reliance by the appellate court upon the

general finding here is specially trou-

bling because the government did not even

attempt in its brief to identify evidence

that would have supported the necessary

19

additional findings. *

3. The reasons for review by this

Court are enhanced by the fair trial con-

cerns presented by the record in this

case. Petitioner does not contend that

these concerns or the third question pre-

sented would, alone, warrant review by

this Court. The presence of those con-

cerns, however, enhances the importance of

the other issues and makes this an appro-

priate case through which the Court may

properly address concerns that might oth-

erwise escape review.

The court of appeals misapprehended

the nature of the prejudice to Hodder that

resulted from the disparate factors that

Z Counsel recognizes that the

unpublished decision will not establish

precedent for this practice. Nonetheless,

the memorandum illustrates a practice that

is unfair to Hodder and inconsistent with

the proper performance of the appellate

function. Counsel submits that the issue

thus interjected is of such importance

that it should be reconsidered by the

panel or considered by the Court.

20

combined in this case. In addition to the

district court's decision to conduct a

"dual" trial, there were other equally in-

portant factors. The grand jury had been

persuaded to return an indictment on the

apparent theory that only the award of the

general contract could provide sufficient

consideration to induce a person of Hod-

der's stature and background to enter into

a conspiracy with a mid-level BLM en-

ployee. At trial, however, the prosecutor

presented no evidence to support the pre-

award conspiracy alleged by the grand

jury. Instead, he presented evidence in

support of a different and far narrower

conspiracy. As the court of appeals

found, the prosecutor also had improperly

multiplied the aiding and abetting counts

in a manner that fragmented the issues and

forced Hodder to confront and the district

court to address multiple issues rather

than one.

21

Hodder claimed that it was this com-

bination of prosecutorial strategems that

brought this case within the principles

articulated by the Fifth Circuit Court of

Appeals in United States v. Weischenberg,

604 F.2d 328 (5th Cir. 1979) and noted

with approval in United States v. Little,

753 F.2d 1420, 1443 (9th Cir. 1984).

These are specially important con-

cerns when the government seeks to use the

prosecutorial net to impose criminal lia-

bility upon a party to a legitimate busi-

ness transaction such as the transaction

in this case. Scientists and businessmen

in the position of a David Hodder who con-

tract to perform services for their gov-

ernment serve the legitimate ends of both

government and business. These are legit-

imate transactions and those who par-

ticipate in them should not be placed in

the position of persons engaged in il-

legitimate transactions, such as_ drug

22

dealing, where any confederation for a

common end must in its nature result in a

corrupt conspiracy. This Court should

scrutinize the practices employed as well

as the evidence produced to assure that

the prosecutorial net of conspiracy is

contained within its proper bounds. These

concerns are sufficient to warrant grant-

ing review in this case.

4. The context in which this case

arose enhances the need for review by this

Court. This is the first case to come be-

fore the Court in which the government has

employed conspiracy and aiding and abet-

ting theories to extend criminal liability

to a private contractor for conflict-of-

interest violations by a federal employee.

Contracts between federal agencies and

private contractors are an important and

legitimate means of effecting the business

of the federal government. Given their

general importance and the context in

23

which they arise, these questions should

be resolved promptly and authoritatively

by this Court to provide necessary guid-

ance for the future.

Tne background of the defendants also

makes this an appropriate case for further

consideration. Appellant Hodder was a pi-

oneer in the remote sensing field and a

former chief scientist for North American

Rockwell. He had served that Corporation

as Chief Scientist performing classified

and other government contracts throughout

his career. In the late 1970's, after

Rockwell sold the subsidiary where he was

employed, Hodder established a small busi-

ness concern, GSC, through which he had

continued to obtain and perform contracts

for various federal agencies and other na-

tions, including work for BLM. Jewell was

a mid-level hydrologist who routinely

served as the local contract officer in

BLM's Nevada office. The facts in this

24

case strongly imply a person of the

stature of Hodder would enter never into a

conspiracy with a person in the position

of Jewell.

Against this background, the decision

below is capable of two readings, neither

of which is consistent with the law or the

needs of the situation.

The decision can be construed as a

ruling that the evidence was sufficient to

enable a rational trier of fact to find

beyond reasonable doubt that Hodder and

Jewell entered into a pre-award conspiracy

as alleged in the indictment. If that

were the true basis of the decision, then

no private contractor could safely deal

with the government. A contractor who had

done good work for a particular office

would run the risk that his firm would be

included in the bidder's list in future

projects requiring the same skills. Unbe-

knownst to him, he might submit a proposal

25

and obtain an award only to discover that

the same federal employee was still admin-

istering contracts for the office. There-

after, should the federal employee violate

the conflict-of-interests statute, the

government could claim the whole contract

was the product of a conspiracy and its

"evidence" would be sufficient to support

a conviction. Neither the objectives of

the criminal justice system nor the legit-

imate needs of the governmental contract-

ing process can be reconciled with such a

scenario. No rational trier of fact

should be permitted to find such a con-

spiracy on evidence presented here.

Alternatively, the decision below may

be read as holding that a conviction based

upon evidence that it viewed as sufficient

to support a finding that Hodder and Jew-

ell entered into a conspiracy that dif-

fered materially in time and object from

the conspiracy that the grand jury found

26

probable cause to allege did not create a

prejudicial variance. If that were the

true basis of the panel's decision, the

decision would not only conflict with the

law of the circuit, it would also under-

mine the role of the grand jury and pro-

vide incentives for prosecutorial conduct

that is not consistent with the fair ad-

ministration of justice.

Accordingly, petitioner submits that

this court should grant the review in or-

der that it may consider the important

questions presented.

Respectfully submitted,

Martin H. Hodder

1131 N.E. 86th St.

Miami, FL 33138

(305) 751-8706

Attorney for David Hodder

CERTIFICATE OF SERVICE

On September 28, 1987 three copies of

the foregoing Petition for Writ of Certio-

rari were mailed to:

The Honorable Charles Fried

Solicitor General of the United States

United States Department of Justice

Washington, D.C. 20505

Martin H. Hodder

“Ao

<5

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA

CA No. 86-1324

Plaintiff-Appellee,

)

)

)

)

Vv. ) DC No.

) CR-R-85-42-HDM

DAVID T. HODDER, )

) MEMORANDUM*

)

)

Defendant-Appellant.

Appeal from the United States District

Court for the District of Nevada

Honorable Howard D. McKibben,

District Judge, Presiding

Argued and Submitted August 10, 1987

San Francisco, California

FILED: September 4, 1987

Before: WRIGHT, FARRIS, and THOMPSON,

Circuit Judges.

Hodder was convicted of conspiring

with a government official to defraud the

United States, in violation of 18 U.S.C. §

371, and thirteen counts of aiding and

abetting a government official in the pos-

*This disposition is not appropriate for

publication and may not be cited to or by

the courts of this circuit except as pro-

vided by Circuit Rule 36-3.

1

session of a prohibited financial inter-

est, in violation of 18 U.S.C. § 208(a).

Hodder challenges his conspiracy convic-

tion on two grounds: that the court con-

victed him of a crime that differed mate-

rially from the crime alleged in the in-

dictment, and that the evidence was not

sufficient to prove the agreement that is

an essential element of conspiracy. He

argues also that the evidence was not suf-

ficient to support the thirteen aiding and

abetting convictions.

The indictment charged that Hodder

had entered into a conspiracy with a gov-

ernment official, Jewell, “to defraud the

United States of and concerning its gov-

ernmental functions and rights.” The con-

spiracy statute, 18 U.S.C. § 371, provides

that it is a crime for two or more persons

to “conspire either to commit any offense

against the United States, or to defraud

the United States, or any agency thereof

in any manner or for any purpose.” The

indictment set out at length the factual

background of the alleged conspiracy, be-

ginning with the point at which Hodder

submitted a bid for a contract which al-

legedly would serve as a vehicle for the

payment of government funds to Jewell’s

personal business. Hodder contends that

the indictment was for conspiracy to com-

mit fraud against the government, but that

the trial court convicted him of the dif-

ferent crime of conspiracy to commit an

offense against the United States, which

is also covered by 18 U.S.C. § 371. Hod-

der argues that the court denied him the

right to be tried on the grand jury’s

charges and to prepare a defense. The

district court specifically found Hodder

guilty of a conspiracy to defraud the gov-

ernment, using the precise words of the

indictment. The court convicted Hodder on

the basis of essentially the same acts

that were recounted in the indictment. It

is of no consequence that the court did

not consider that all of the acts speci-

fied in the indictment were part of the

conspiracy. The crime charged was the

crime of which Hodder was convicted.

Hodder also contends that the evi-

dence of a conspiracy was insufficient to

convict him. We review the evidence in a

light most favorable to the prosecution,

to determine whether any rational trier of

fact could have found the essential ele-

ments of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307,

318-19 (1979); United States v. Mara-

belles, 724 F.2d 1374, 1377 (1985). We

conclude that any rational trier of fact

could find beyond a reasonable doubt that

Hodder willfully became a member of a con-

spiracy to defraud the government, and

that he committed several overt acts in

furtherance of the conspiracy. The court

could reasonably infer from all of the ev-

idence that Hodder was aware that the com-

pany to which he sub-contracted work was

controlled by Jewell.

Hodder next contends that the evi-

dence was not sufficient to convict him of

thirteen counts of aiding and abetting

Jewell in having a prohibited financial

interest in a government contract. Hodder

made a series of payments to Jewell’s

business for work on the government con-

tract. The aiding and abetting charge de-

pends on a showing that Hodder knew that

the business was Jewell’s. Hodder argues

that there was no evidence that he knew of

Jewell’s deception. Our review of the

record satisfies us that any reasonable

trier of fact could find beyond a reason-

able doubt that Hodder was aware that he

was actually paying Jewell. The same evi-

dence was crucial in establishing the con-

spiracy.

However, we must reverse twelve of

the thirteen aiding and abetting counts as

multiplicitous. We have found in a sepa-

rate opinion, United States v. Jewell, No.

86-1360 (1987), that .2well could be con-

victed only of one count of participating

in a contract in which he had a financial

interest, in violation of 18 U.S.C. § 208.

It follows that Hodder can be convicted

only of one count of aiding and abetting

Jewell in that crime.

Hodder argues finally that his trial

was fundamentally unfair because of its

“dual” nature. He argues that the United

States “used a conspiracy as a device to

simplify its burden of proving the ele-

ments of aiding and abetting on each of

thirteen occasions alleged and compartmen-

talized the ’units of prosecution’ to max-

imize the defendant’s risks and burdens.”

We find nothing improper in the United

States’ reliance on a conspiracy theory.

The conspiracy and aiding and abetting

charges all depended upon a showing that

Hodder was aware that Jewell was a de

facto subcontractor on a government con-

tract and that Hodder furthered the fraud

against the government by his actions.

There was no impropriety in prosecuting

this case as an overarching conspiracy

with several components. Hodder has sug-

gested nothing that prevents the United

States from charging on several counts and

"“maximiz{[ing] the defendant’s risks’ and

burdens.”

Hodder’s conspiracy conviction is af-

firmed. All but one of his convictions

for aiding and abetting are reversed on

remand. The district court may adjust

Hodder’s sentence accordingly.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

UNITED STATES OF AMERICA, CR-N-85-42-HDM

Plaintiff,

vs. OPINION and

VERDICTS

DAVID HODDER, and

RICHARD C. JEWELL,

Defendants.

_/

Defendants Richard Jewell and David

Hodder are charged by Indictment with vio-

lating Title 18, U.S.C. § 371, Conspiracy,

and Title 18, U.S.C. § 208(a) and § 2,

Personal Financial Interest and Aiding and

Abetting. The defendant David Hodder is

charged with violating Title 18 U.S.C. §

287 by filing false, fictitious and fraud-

ulent claims with the Department of Inte-

rior, Bureau of Land Management. The

court will address the conspiracy charge

first. 18 U.S.C. § 371 provides:

"If two or more persons conspire

either to commit any offense

against the United States, or to

defraud the United States, or

any agency thereof in any manner

or for any purpose and one or

more of such persons do any act

to effect the object of the con-

epiracy. . .*

such persons shall be guilty of an offense

against the United States. The elements

the government must establish beyond a

reasonable doubt as to Count I before the

defendant can be found guilty are: That

the conspiracy was willfully formed and

existed at or about the time alleged in

the Indictment; that the defendant will-

fully became a member of the conspiracy;

that the defendant committed one or more

of the overt acts alleged in furtherance

of the conspiracy. Applying these ele-

ments to the facts of this case, the court

finds and concludes as follows:

The government established beyond a

reasonable doubt that between the period

November, 1980 and January, 1983:

1. Defendant Jewell was employed as

a GS-12 Hydrologist by the United States

Department of Interior, Bureau of Land

Management.

2. Defendant Jewell was chairman of

the Technical Proposal Evaluation Commit-

tee which recommended that negotiations

for the Nevada Air Quality Study be con-

ducted with Geoscientific Systems and Con-

sulting (GSC) owned by Defendant David

Hodder. That part of that study included

an estimated cost of $18,000 for visibil-

ity measurements accomplished by means of

aerial photography.

3. Defendant Jewell was appointed as

the contracting office’s authorized repre-

sentative to supervise the performance and

payment of claims to GSC for the air qual-

ity study contract which was awarded to

GSC.

4. Defendant Jewell was hired by GSC

through a business or businesses known as

J-Co and Hamilton Photography at $150 per

hour to take aerial photographs as a sub-

contractor under the GSC air quality con-

tract with BLM.

5. Defendant Jewell took the pho-

tographs and forwarded the same to David

Hodder at GSC. The photographs were re-

ceived by GSC through an entity known as

Geo Satellite Surveys (GSS). The court

finds that at all times relevant herein

GSS performed no work independent of GSC

and Eric Hodder did nothing independent of

David Hodder. The court, after careful

consideration of the relationship of De-

fendants Hodder and Jewell on this project

and previous projects, and after consider-

ing the temporal proximity between the

formation of GSS and Hamilton Photography

and the fact neither entity performed sig-

nificant services nor derived significant

income other than that generated by this

project, concludes that Defendant Jewell

11

established Hamilton Photography and De-

fendant Hodder established GSS for the

purpose of insulating and disguising pay-

ments from the Bureau of Land Management

to Jewell through Hodder.

In addition, the court finds two

items of documentary evidence to be per-

_suasive circumstantial evidence that De-

fendant Hodder knew that Defendant Jewell

was receiving payments through Hamilton

Photography for the aerial services under

the GSC contract with BLM. First, Exhibit

30 reflected that J-Co (the other entity

owned by Defendant Jewell which he used in

tandem with Hamil*t.n) billed Hamilton for

flying services on May 30, 1981, Hamilton

billed GSS for the same services on ex-

actly the same date and GSS also billed

Gsc for those same services on May 30,

1981. Second, on October 27, 1982 a check

for $3,423 from GSS to Hamilton Photogra-

phy representing payment for aerial work

12

during February, 1982 (Exhibit 39g) and on

October 28, 1982 a check for $3,440 from

GSS to Hamilton for aerial work during

March, 1982 was, according to the testi-

mony of Defendant Hodder, mailed to Pismo

Beach, California. Yet the checks were

deposited in Nevada National Bank in Reno

on October 29, 1982.

The reasonable and compelling infer-

ence the court draws from these transac-

tions is that Defendant Hodder delivered

these checks and prepared these invoices

with Defendant Jewell with both having

full knowledge of the other’s participa-

tion in the conspiracy.

Although the court has concluded the

evidence presented by the government in

its case in chief, together with the rea-

sonable inferences drawn from that evi-

dence, established the guilt of Defendants

Jewell and Hodder beyond a reasonable

doubt, the testimony of Defendant Hodder

13

confirmed those findings and conclusions.

While the court found Defendant Hodder to

have a remarkable memory as to details

surrounding most aspects of his air qual-

ity contract with BLM, he had great diffi-

culty remembering the details of communi-

cations with representatives of Hamilton

Photography yet his contract with Hamilton

was significant and a critical portion of

the air quality contract. The following

evidence about Hodder’s relationship with

Hamilton was not credible: his conversa-

tions with a person he only knew to be

“Kay”; that flights were made by Hamilton

without payment or a written contract;

that no meeting between the representa-

tives of the two entities ever occurred;

that all discussions were over the tele-

phone; that the person by the name of

“Kay” always called him with the exception

of the one occasion in which conveniently,

around July 4th, he reached “Kay” at the

14

Hamilton number; that payments were as

much as seven to eight months late and yet

no requests for payment were ever made in

writing or otherwise; that Defendant Jew-

ell never questioned Defendant Hodder

about the personal involvement in the

aerial flights and photography notwith-

standing this field was his particular in-

terest and field of expertise; that Defen-

dant Hodder expressed no surprise that De-

fendant Jewell was unconcerned about the

qualifications or expertise of his pilot

and photographer.

The government’s evidence against

both the Defendants Hodder and Jewell, in-

dependent of Defendant Hodder’s testimony,

established the guilt of both defendants

on Counts I through XIV of the indictment.

The testimony of Defendant Hodder simply

corroborated the conclusion reached by the

court.

15

While motive is not an element of the

offense, it appears clear the defendant

Jewell was motivated by the monetary bene-

fits he derived under the agreement. The

benefits to Defendant Hodder, while more

subtle, were quite real. In addition to

the additional monetary benefits he de-

rived from the handbook, he insured a con-

tinued close relationship with Defendant

Jewell and could expect only superficial

scrutiny over his contract.

Therefore, for the foregoing reasons,

the court finds the government established

beyond a reasonable doubt that Defendant

Richard Jewell and Defendant David Hodder

entered into an agreement to defraud the

United States Government of and concerning

its governmental functions; that they did

so willfully with knowledge of the activi-

ties of the other, and in furtherance of

the conspiracy, and committed the overt

acts set forth in paragraphs 3 through 16

on pages 7 through 9 of the Indictment.

In Counts II through XIV of the In-

dictment, it is alleged Defendant Richard

Jewell, aided and abetted by Defendant

David Hodder, unlawfully and knowingly

participated personally and substantially

as a government officer and employee

through decision, approval and recommenda-

tion, in signing certain certificates for

Contract Payment/Invoice submitted by GSC

to BLM under the air quality contract.

The evidence established beyond a

reasonable doubt that Defendant Richard

Jewell took photographs for the Nevada Air

Quality Project for which he received pay-

ments from GSC which payments he recorded

as the Contracting Officer Authorized Rep-

resentative (COAR) for the project. He

executed each of the certificates for Con-

tract Payment/Invoice submitted by GSC

and, as the court has previously deter-

17

mined, each such action constituted a sep-

arate offense.

For the reasons the court has previ-

ously articulated in this decision, the

defendant Hodder knew the defendant Jewell

had a present financial interest in the

air quality contract and that he partici-

pated personally and substantially in the

contract. With this knowledge and by his

activity in making payments to Defendant

Jewell through GSS and Hamilton Photogra-

phy, the defendant Hodder aided and abet-

ted Defendant Jewell in the commission of

each offense set forth in Counts II

through XIV of the Indictment.

Finally, the defendant Hodder is

charged in Counts XV, XVI and XVII with

violating Title 18, United States Code,

Section 287 by filing false, fictitious

and fraudulent claims with the BLM. To

establish these offenses, the government

must establish beyond a reasonable doubt

18

OQ

(1) that a claim was made or presented

upon or against an agency or department of

the United States; (2) That such claim was

false, fictitious or fraudulent; (3) That

the defendant knew that such claim was

false, fictitious or fraudulent when made;

(4) That the defendant acted wilfully.

The court has carefully scrutinized

the evidence presented by the government

on each of these counts. Count XV is sup-

ported by Exhibits 54 through 63(b) and

the testimony relating thereto. Count XVI

is supported by Exhibits 64 through 70 and

Count XVII is supported by Exhibits 71

through 78. While the court entertains

reasonable suspicions that portions of

each of these claims were false, ficti-

tious or fraudulent and that Defendant

Hodder had knowledge of such facts, the

court is not persuaded the government es-

tablished these offenses beyond a reason-

able doubt. While the evidence was com-

19

pelling in showing loose practices and un-

usual billings together with some substan-

tial evidence of inflated prices, the

court was not persuaded the government es-

tablished these offenses beyond a reason-

able doubt. The evidence presented in

connection with these alleged offenses

does, however, further illuminate Defen-

dant Hodder’s motivation for conspiring

with Defendant Jewell as charged in Count

I of the Indictment and the benefit he de-

rived from his agreement with Defendant

Jewell.

Therefore, for the foregoing reasons

and on the basis of all the evidence pre-

sented and received during the trial, the

court finds and concludes:

The defendant Richard Jewell is

guilty of conspiracy under Title 18 U.S.C.

§ 371 as charged in Count I of the Indict-

ment. The defendant Richard Jewell is

guilty of having a personal financial in-

20

ee

terest under Title 18 U.S.C. § 208(a), as

charged in Counts II, III, IV, V, VI, VII,

VIII, IX, X, XI, XII, XIII and XIV of the

Indictment.

The defendant David Hodder is guilty

of conspiracy under Title 18 U.S.C. § 371

as charged in Count I of the Indictment.

The defendant David Hodder is guilty of

aiding and abetting Richard Jewell in hav-

ing a personal financial interest under

Title 18, U.S.C. § 208(a) as charged in

Counts, I2, 122; PR M. Vit. Vitis ee

X, XI, XII, XIII and XIV of the Indict-

ment. The defendant David Hodder is not

guilty of filing a false, fictitious and

fraudulent claim under Title 18 U.S.C. §

287 as charged in Counts XV, XVI and XVII

of the Indictment.

IT IS SO ORDERED. It is further OR-

DERED that the verdicts of this court

Shall be made a part of the record of this

court and that a Judgment of Guilt shall

21

be entered in accordance with these ver-

dicts.

IT IS FURTHER ORDERED this matter is

referred to the Department of Parole and

Probation for a presentence report.

IT IS FURTHER ORDERED the defendants

appear before the court at 3:00 P.M. on

the 3rd day of October, 1986 for the pur-

pose of pronouncement of judgment and im-

position of sentence.

Dated this 25th day of July, 1986.

UNITED STATES DISTRICT JUDGE

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA

CA No. 86-1360

Plaintiff-Appellee,

)

)

)

) DC No. CR-R-

) 85-42-HDM

V. )

) OPINION

RICHARD C. JEWELL, )

)

Defendant-Appellant. )

Appeal from the United States District

Court for the District of Nevada

Howard D. McKibben, District Judge,

Presiding

Argued and Submitted August 10, 1987

San Francisco, California

FILED: Sept. 8, 1987

Before: WRIGHT, FARRIS, and THOMPSON,

Circuit Judges.

FARRIS, Circuit Judge:

Jewell, an employee of the United

States Bureau of Land Management, was con-

victed of thirteen counts of having a per-

sonal interest in a government contract,

in violation of 18 U.S.C. § 208(a), and

23

one count of conspiracy, in violation of

18 U.S.C. § 371.

On appeal, Jewell argues first that

the prosecution multiplied a single viola-

tion of 18 U.S.C. § 208(a) into thirteen

separate counts. Section 208(a) makes

criminally liable

whoever . . . participates per-

sonally and substantially as a

Government officer or employee,

through decision, approval, dis-

approval, recommendation, the

rendering of advice, investiga-

tion, or otherwise, in a judi-

cial or other proceeding, appli-

cation, request for a ruling or

other determination, contract,

claim, controversy, charge, ac-

cusation, arrest, or other par-

ticular matter in which, to his

knowledge, he, his spouse, minor

child, partner, organization in

which he is serving as officer,

director, trustee, partner or

employee, or any person or orga-

nization with whom he is negoti-

ating or has any arrangement

concerning prospective employ-

ment, has a financial interest

It is undisputed that Jewell partici-

pated substantially as an officer of the

United States in a contract in which he

—

24

had a personal financial interest. The

indictment charged a separate violation of

section 208(a) for every occasion on which

Jewell signed, in his capacity as a gov-

ernment official, an invoice authorizing

payment by the contractor to his company

as subcontractor. All of the authoriza-

tions were written under a single con-

tract. Jewell argues that because there

was only one contract, he was guilty of

only one conflict of interest. We agree.

Whether 18 U.S.C. § 208(a) allows

multiple counts in this case is a question

of statutory interpretation, which we re-

view de novo. Trustees of Amalgamated

Ins. Fund v. Geltman Industries, 784 F.2d

926, 929 (9th Cir.) , cert. denied, 107 S.

Ct. 90 (1986).

The district court considered the

question of multiplicity in the indictment

and declined to force the prosecution to

elect from among the allegedly multiplici-

25

tous counts. The court found that each

time Jewell signed an invoice, “he al-

legedly participated personally and sub-

stantially as a Government employee

through approval of a claim in which he

had a substantial financial interest.”

The court relied primarily upon the fol-

lowing language from United States v.

Irons, 640 F.2d 872 (7th Cir. 1980):

the legislative history of Sec-

tion 208 demonstrates an inten-

tion to proscribe rather broadly

employee participation in busi-

ness transactions involving con-

flicts of interest and to reach

activities at various stages of

these transactions. . . . the

scope of 18 U.S.C. 208 includes

acts which lead up to the forma-

tion of contract, as well as

those which might be performed

in the execution of the con-

tract.

640 F.2d at 876-77. The district court

took this statement as an indication that

section 208(a) was intended to punish sep-

arately each step in transactions involv-

ing conflicts of interest. When taken in

26

context, however, the import of the Sev-

enth Circuit’s statement is clear: lia-

bility for conflict of interest may be

founded on a variety of acts leading up to

the formation of a contract even if those

acts are not specifically mentioned in the

text of section 208(a). The section’s

“catch all” language ("participates .. .

through decision, approval, recommenda-

tion, the rendering of advice, investiga-

tion, or otherwise. . . .”) was designed

to allow prosecution on the basis of any

type of action taken to execute or carry

to completion a contract. 640 F.2d at

878. In Irons, although the opinion noted

that several actions separately constitut-

ing “participation” were taken pursuant to

contracts as to which there was a conflict

of interest, the indictment was in two

counts -- one for each contract in which

the defendant was involved. Id. at 874-

7S. The government did not attempt to

27

charge separately each of the acts taken

under each contract. The court ruled that

many types of actions could constitute

participation, not that each of those ac-

tions was a separate violation of the

statute.

The indictment here alleged that each

time Jewell signed an invoice for payment

to his company, he participated in “a con-

tract, claim and matter in which .. . he

had a financial interst.” The routine ap-

proval of each invoice under the contract

was not participation in a discrete

“claim” or “particular matter” within the

meaning of the statute. Jewell’s signing

of invoices was-part of an ongoing process

of monitoring the government contract with

Hodder in which Jewell had a financial in-

terest. If every minor action that Jewell

took in relation to the contract could be

considered a separate “matter” under sec-

tion 208(a), his participation in the con-

28

tract could be multiplied into endless

criminal counts. Congress referred in

section 208(a) to participation in a con-

tract, claim, or other particular matter.

Use of the disjunctive indicates that

Congress did not intend to cover partici-

pation in a minor claim or other matter

coming under a contract. By “claims”

Congress meant something more substantial

- something on the order of a separate

government proceeding. See Perkins, The

New Federal cConflict-of-Interest Law 76

Harv. L. Rev. 1113, (1963) (commenting on

the earlier, essentially similar version

of the statute). A matter may form a sep-

arate basis for liability under section

208 only if it is a discrete transaction.

It cannot be part of a larger transaction,

and cannot be continuous or overlapping

with another matter. Jewell’s participa-

tion in those claims was simply part of

his participation in the contract, a sin-

29

gle violation under the terms of section

208(a).

This distinction was recognized in

Irons. There, as here, the defendant’s

various actions regarding a contract were

part of his participation in that con-

tract, not separate “participations”

bringing separate liability. Other courts

have consistently treated a series of ac-

tions taken by a defendant in connection

with a particular matter as a single in-

stance of participation in the matter.

See United States v. Gorman, 807 F.2d 1299

(6th Cir. 1986), petition for cert. filed,

April 2, 1987 (Assistant U.S. Attorney

charged with one count of participating

extensively in the case in which he had

financial interest); United States v. Con-

lon, 481 F. Supp. 654 (D. D.C. 1979), mod-

ified, 628 F.2a@ 150 (D.C. -Cir. 1980)

(several actions on one proposal prose-

cuted as one count of participation in

30

matter in which defendant had financial

interest). We have found no other pub-

lished opinions involving convictions un-

der 18 U.S.C. § 208(a) and none have been

brought to our attention.

Jewell argues also that his conspir-

acy conviction was unsupported by the evi-

dence. We review the evidence in a light

most favorable to the prosecution to de-

termine whether any rational trier of fact

could have found the essential elements of

the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19

(1979); United States v. Marabelles, 724

P.2@ i374, i377 (9th Cir. i985}. Jewell

contends that there was no evidence that

his alleged co-conspirator, Hodder, had

agreed with him to defraud the United

States. Hodder made a series of payments

to Jewell’s business for work on the gov-

ernment contract that Jewell was oversee-

ing. The conspiracy charge depends on ev-

idence that Hodder knew that the business

was Jewell’s. We find that any rational

trier of fact could conclude beyond a rea-

sonable doubt that Hodder was aware that

he was actually paying Jewell. There was

evidence from which the trial court could

conclude that Hodder made some payments on

the subcontract directly to Jewell.

Jewell’s conviction of conspiracy is

affirmed. His convictions on the multi-

plicitous counts in the indictment --

Count III through Count XIV -- are re-

versed. Jewell could be convicted of only

one count of violating 18 U.S.C. § 208(a)

on these facts. On remand the court may

adjust Jewell’s sentence accordingly.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

Wie

UNITED STATES OF AMERICA

CA No. 86-1324

Plaintiff-Appellee,

CR-R-85-42-HDM

DAVID T. HODDER,

MEMORANDUM

)

)

)

)

Vv. ) DC No.

)

|

Defendant-Appellant.)

)

Appeal from the United States District

Court for the District of Nevada

JUDGMENT

This cause came on to be heard on the

transcript of the record from the United

States District Court for the District of

Nevada and was duly submitted;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the order of the District Court ap-

pealed from, in this cause be, and the

33

same is hereby, AFFIRMED IN PART AND RE-

VERSED IN PART.

FILED AND ENTERED:

September 4, 1987

CATHY A. CATTERSON

CLERK

U.S. COURT OF APPEALS

WILLIAM A. MADDOX

United States Attorney

Federal Building and Courthouse

300 Booth Street, Room 2032

Reno, Nevada 89509

Telephone: 784-5439

JOHN J. KLEIN

U.S. Department of Justice

Criminal Division, Fraud Section

P.O. Box 7814

Ben Franklin Station

Washington, D.C. 20044

Telephone: 202-724-7138

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Criminal No.

R-85-42-ECR

UNITED STATES OF )

AMERICA, )

)

Plaintiff, ) INDICTMENT FOR

) VIOLATION OF TITLE

RICHARD C. JEWELL, )

DAVID T. HODDER, )

)

)

)

18, UNITED STATES

CODE, SECTIONS 371,

208, 287, 2 (Cone

spiracy, Personal

Financial Interest,

False Claims, Aid-

ing and Abetting)

Defendants.

COUNT I

THE GRAND JURY CHARGES: THAT

At all times pertinent to this

indictment the United States Department of

the Interior, Bureau of Land Management,

was a department and agency of the execu-

35

tive branch of the United States Govern-

ment with responsibility, among other

things, to conduct surveys of air quality

on land owned by the United States.

2. At all times pertinent to this

indictment RICHARD C. JEWELL, the defen-

dant herein, was employed as a GS-12 hy-

drologist by the United States Department

of the Interior, Bureau of Land Manage-

ment, in Reno, Nevada.

Be At all times pertinent to this

indictment DAVID T. HODDER, the defendant

herein, was the owner and chief scientist

of Geoscientific Systems and Consulting of

Playa del Rey, California, a business

which conducted geoscientific surveys and

studies.

4. At all times pertinent to this

indictment Geo Satellite Surveys, a busi-

ness owned and operated by DAVID T. HODDER

and his son, Eric A. Hodder, served as a

36

subcontractor for Geoscientific Systems

and Consulting.

oe Beginning on or about June 1981

Hamilton Photography was a photo business

established as a conduit for payments from

DAVID T. HODDER to RICHARD C. JEWELL and

was operated by RICHARD C. JEWELL’S wife,

Karen Jewell, from their residence in

Reno, Nevada.

6. At all times pertinent to this

indictment J-Co Aerial Surveys was. an

aerial photography business owned, domi-

nated, controlled and operated by RICHARD

C. JEWELL from his Reno, Nevada, resi-

dence.

I Beginning on or about November

1980 and continuing to on or about January

1983, the exact dates being unknown to the

grand jury, in the District of Nevada,

RICHARD C. JEWELL and DAVID T. HODDER, the

defendants herein, did unlawfully, know-

ingly and willfully combine, conspire and

37

agree together with each other and with

other persons known and unknown to the

grand jury, to defraud the United States

Government of and concerning its govern-

mental functions and rights, hereinafter

described, that is:

(a) of and concerning its right to

have its business and its affairs, partic-

ularly the transaction of the official

business of the Department of the Inte-

rior, Bureau of Land Management, conducted

free from fraud, conflicts of interest,

corruption, dishonesty, deceit, miscon-

duct, partiality and bias;

(b) of and concerning its right to

have its officers and employees, particu-

larly the personnel of the Department of

the Interior, Bureau of Land Management,

free to transact the official business of

the United States unhindered, unhampered,

and unimpaired by the exertion upon them

of dishonest, corrupt, unlawful, improper

38

and undue pressure and conflicts of inter-

est; and

(c) of and concerning its right to

the conscientious, loyal, faithful, disin-

terested and unbiased services, decisions,

actions and performance of the defendant

RICHARD C. JEWELL in his official capacity

as an employee of the Department of the

Interior, Bureau of Land Management, free

from fraud, conflicts of interest, corrup-

tion, dishonesty, deceit, misconduct, par-

tiality and bias resulting from his per-

sonal and pecuniary interest in the busi-

ness transacted by Geoscientific Systems

and Consulting with the Department of the

Interior, Bureau of Land Management.

MANNER AND MEANS

8. It was part of the conspiracy

that RICHARD C. JEWELL, as part of his du-

ties as an employee of the Bureau of Land

Management, proposed methodologies for a

study of the air quality of Nevada to be

39

funded by the Bureau of Land Management.

His proposal suggested the use of aerial

photography services to measure

“visibility” at an estimated cost of

$9,000.

9. It was further part of the con-

Spiracy that on December 29, 1980, DAVID

T. HODDER, representing Geoscientific Sys-

tems and Consulting, submitted to the Bu-

reau of Land Management a proposal for a

study of the air quality of Nevada. The

proposal included an $18,000 estimated

cost for visibility measurements accom-

plished by means of aerial photography.

10. It was further part of the con-

spiracy that RICHARD C. JEWELL, Chairman

of the Technical Proposal Evaluation Com-

mittee which analyzed and rated contract

proposals received by the Bureau of Land

Management, recommended that negotiations

for the Nevada air quality study be con-

40

ducted “only” with DAVID T. HODDER’s firm,

Geoscientific Systems and Consulting.

11. It was further part of the con-

spiracy that following the award of the

contract to study Nevada air quality to

Geoscientific Systems and Consulting,

DAVID T. HODDER subcontracted the perfor-

mance of the aerial photography aspect of

the contract to Geo Satellite Surveys

which, in turn, subcontracted those same

services to Hamilton Photography which

subcontracted those services to J-Co

Aerial Surveys.

12. It was further a part of the

conspiracy that RICHARD C. JEWELL took the

aerial photographs for which DAVID T.

HODDER was reimbursed by the Bureau of

Land Management pursuant to Geoscientific

Systems and Consulting’s Nevada air qual-

ity contract.

13. It was further part of the con-

Spiracy that RICHARD C. JEWELL recommended

41

twelve progress payments to Geoscientific

Systems and Consulting for work on the

Nevada air quality contract by signing

twelve Certificates for Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting, each of which con-

tained a claim for aerial photography ser-

vices.

14. It was further part of the con-

spiracy that the Bureau of Land Management

reimbursed Geoscientific Systems and Con-

sulting $42,358 for aerial photography

services provided for the Nevada air qual-

ity contract; that Geo Satellite Surveys

paid $40,442 for the same services to

hamilton Photography which paid $40,197 to

J-Co Aerial Surveys for these aerial pho-

tography services.

15. It was furtner part of the con-

spiracy that RICHARD C. JEWELL, who was

appointed the Bureau of Land Management’s

Contracting Officer’s Authorized Represen-

42

tative to supervise the performance and

payment claims of DAVID T. HODDER and Geo-

scientific Systems and Consulting on the

Nevada air quality contract, failed to

disclose to the Bureau of Land Management

that his business, J-Co Aerial Surveys,

had been hired at $150 per hour to take

aerial photographs as a subcontractor on

Geoscientific Systems and Consulting’s

Nevada air quality contract.

16. It was further part of the con-

spiracy that RICHARD C. JEWELL, as part of

his duties as an employee of the Bureau of

Land Management, initiated the purchase of

a $7,800 Aerial Photography Visibility

Handbook from Geoscientific Systems and

Consulting.

17 « It was further part of the con-

Spiracy that Geoscientific Systems and

Consulting purchased the Aerial Photogra-

phy Visibility Handbook from Geo Satellite

Surveys which paid $4,000 for graphics and

43

a

other services for the handbook’ to

Hamilton Photography which, in turn, paid

$4,000 for editing, graphics, and other

handbook preparation services to J-Co

Aerial Surveys.

18. It was further part of the con-

spiracy that RICHARD C. JEWELL, who was

appointed the Bureau of Land Management’s

Contracting Officer’s Authorized Represen-

tative to supervise the performance and

payment claims of DAVID T. HODDER and Geo-

scientific Systems and Consulting on the

Nevada air quality contract, failed to

disclose to the Bureau of Land Management

that his business, J-Co Aerial Surveys,

had been hired for $4,000 to provide hand-

book preparation services as a subcontrac-

tor on Geoscientific Systems and Consult-

ing’s Nevada air quality contract.

OVERT ACTS

In furtherance of the above-described

conspiracy and to accomplish its objec-

44

a 2

tives the defendants did commit the fol-

lowing overt acts in the District of

Nevada and elsewhere:

ke On or about December 29, 1980,

DAVID T. HODDER, representing Geoscien-

tific Systems and Consulting, submitted a

proposal for a Nevada air quality study to

the Bureau of Land Management.

2. On or about January 5-7, 1981,

RICHARD C. JEWELL chaired meetings of a

Bureau of Land Management Technical Pro-

posal Evaluation Committee which rated

proposals submitted for a Nevada air qual-

ity study.

3. On or about April 15, 1981, DAVID

T. HODDER, representing Geoscientific Sys-

tems and Consulting, signed a letter order

for aerial photography services from Geo

Satellite Surveys.

4. On or about May 5, 1981, RICHARD

C. JEWELL rented post office box number

45

20418 in Reno, Nevada, for J-Co Aerial

Surveys and Hamilton Photography.

5. On or about June 12, 19281, DAVID

T. HODDER submitted to the Bureau of Land

Management a Certificate For Contract Pay-

ment/Invoice from Geoscientific Systems

and Consulting which included a $3,219

claim for aerial visibility measurements.

6. On or about June 17, 1981,

RICHARD C. JEWELL signed a Certificate For

Contract Payment/Invoice submitted by

DAVID T. HODDER for Geoscientific Systems

and Consulting which included a $3,219

claim for aerial visibility measurements.

ur On or about July 13, 1981, DAVID

T. HODDER drew Geo Satellite Surveys check

number 010 in the amount of $3,219 to the

order of Hamilton Photography and annoted

“Invoice 5/30/81.”

8. On or about May 17, 1982, DAVID

T. HODDER submitted to the Bureau of Land

Management a Certificate For Contract Pay-

46

ment/Invoice from Geoscientific Systems

and Consulting which included a $3,800

claim for aerial visibility measurements.

9. On or about June 1, 1982, RICHARD

C. JEWELL signed a Certificate For Con-

tract Payment/Invoice submitted by DAVID

T. HODDER for Geoscientific Systems and

Consulting which included a $3,800 claim

for aerial visibility measurements.

10. On or about November 15, 1982,

DAVID T. HODDER drew Geo Satellite Survey

check number 132 in the amount of $3,338

to the order of Hamilton Aerial [sic] Pho-

tography and annotated "April invoice -

Nev air qual visib.”

Al. On or about March 3, 1982,

RICHARD C. JEWELL wrote a memorandum rec-

ommending increased funding to accommodate

cost overruns projected by Geoscientific

Systems and Consulting on the Nevada air

quality contract.

47

——————

12. On or about July 12, 1982,

RICHARD C. JEWELL wrote a memorandum rec-

ommending that the Bureau of Land Manage-

ment purchase from Geoscientific Systems

and Consulting for $7,800 a report on

aerial visibility measurements.

13. On or about July 20, 1982, DAVID

T. HODDER, representing Geoscientific Sys-

tems and Consulting, submitted to the Bu-

reau of Land Management a cost estimate

for, among other items, a report on aerial

visibility measurements for $7,800.

14. On or about September 1, 1982,

DAVID T. HODDER submitted to the Bureau of

Land Management a Certificate For Contract

Payment/Invoice from Geoscientific Systems

and Consulting which included a $7800

Claim for a report on aerial visibility

measurements.

is. On or about September 1982,

RICHARD C. JEWELL signed a Certificate For

Contract Payment/Invoice submitted by

48

DAVID T. HODDER for Geoscientific Systems

and Consulting which included a $7800

claim for a report or aerial visibility

measurements.

16. On or about December 20, 1982,

DAVID T. HODDER drew Geo Satellite Survey

check number 137 in the amount of $4000 to

the order of Hamilton Photography anno-

tated “Handbook/Preparation/Repro.”

All in violation of Title 18, United

States Code, Section 371.

COUNT II

THE GRAND JURY FURTHER CHARGES: THAT

On or about June 17, 1981, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

49

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT III

THE GRAND JURY FURTHER CHARGES: THAT

On or about August 3, 1981, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

_ ~ :

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT IV

THE GRAND JURY FURTHER CHARGES: THAT

On or about August 25, 1981, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GAS-12 hydrologist for

51

the United States Department of the Inte-

rior, Bureau of Land Management, Reno,

Nevada, aided and abetted by DAVID T.

HODDER, unlawfully and knowingly did par-

ticipate personally and substantially as a

Government officer and employee, through

decision, approval and recommendation, in

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest. -

All in violation of Title 18, United

States Code, Sections 208(a) and 2. —

COUNT V

THE GRAND JURY FURTHER CHARGES: THAT

On or about September 19, 1981, in

the District of Nevada, RICHARD C. JEWELL,

being an officer and employee of the Exec-

52

utive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT VI

THE GRAND JURY FURTHER CHARGES: THAT

53

On or about October 19, 1981, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

Aeeeneeinnnee ente

COUNT VII

THE GRAND JURY FURTHER CHARGES: THAT

On or about October 17, 1981, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

Claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

Cial interest.

=}

ee

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT VIII

THE GRAND JURY FURTHER CHARGES: THAT

On or about December 11, 1981, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

56

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT IX

THE GRAND JURY FURTHER CHARGES: THAT

On or about January 18, 1982, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

oF

eT

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT X

THE GRAND JURY FURTHER CHARGES: THAT

On or about February 16, 1982, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

58

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT. XI

THE GRAND JURY FURTHER CHARGES: THAT

On or about March 12, 1982, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

59

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

Claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT XII

THE GRAND JURY FURTHER CHARGES: THAT

On or about April 23, 1982, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

60

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate for Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT XIII

THE GRAND JURY FURTHER CHARGES: THAT

On or about June 1, 1982, in the Dis-

trict of Nevada, RICHARD C. JEWELL, being

an officer and employee of the Executive

Branch of the United States Government,

that is, a GS-12 hydrologist for the

United States Department of the Interior,

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

61

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate For Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT XIV

THE GRAND JURY FURTHER CHARGES: THAT

In and around September 1982, in the

District of Nevada, RICHARD C. JEWELL, be-

ing an officer and employee of the Execu-

tive Branch of the United States Govern-

ment, that is, a GS-12 hydrologist for the

United States Department of the Interior,

62

Bureau of Land Management, Reno, Nevada,

aided and abetted by DAVID T. HODDER, un-

lawfully and knowingly did participate

personally and substantially as a Govern-

ment officer and employee, through deci-

sion, approval and recommendation, in

Signing a Certificate for Contract Pay-

ment/Invoice submitted by Geoscientific

Systems and Consulting pursuant to con-

tract number YA-553-CT1-1017 awarded by

the Bureau of Land Management, a contract,

claim and matter in which, to the knowl-

edge of RICHARD C. JEWELL, he had a finan-

cial interest.

All in violation of Title 18, United

States Code, Sections 208(a) and 2.

COUNT XV

THE GRAND JURY FURTHER CHARGES: THAT

On or about August 1, 1982, in the

District of Nevada, DAVID T. HODDER did

make and present to a department and

agency of the United States, that is, the

63

Department of the Interior, Bureau of Land

Management, a claim upon and against that

department and agency in the amount of

$9,550, knowing such claim to be false,

fictitious, and fraudulent.

All in violation of Title 18, United

States Code, Section 287.

COUNT XVI

THE GRAND JURY FURTHER CHARGES: THAT

On or about September 1, 1982, in the

District of Nevada, DAVID T. HODDER did

make and present to a department and

agency of the United States, that is, the

Department of the Interior, Bureau of Land

Management, a claim upon and against that

department and agency in the amount of

$16,600, Knowing such claim to be false,

fictitious, and fraudulent.

All in violation of Title 18, United

States Code, Section 287.

64

COUNT XVII

THE GRAND JURY FURTHER CHARGES: THAT

On or about October 8, 1982, in the

District of Nevada, DAVID T. HODDER did

make and present to a department and

agency of the United States, that is, the

Department of the Interior, Bureav of Land

Management, a claim upon and against that

department and agency in the amount of

$7,198, knowing such claim to be false,

fictitious, and fraudulent.

All in violation of Title 18, United

States Code, Section 287.

A TRUE BILL:

FOREPERSON OF THE GRAND JURY

WILLIAM A. MADDOX

United States Attorney

JOHN J. KLEIN

Attorney, Criminal Division

U.S. Department of Justice

65

STATUTES INVOLVED

TITLE i8, U.S.C.

§ 2. Principals

(a) Whoever commits an offense against

the United States or aids, abets, coun-

sels, commands, induces or procures its

commission, is punishable as a principal.

(b) Whoever willfully causes an act to

be done which if directly performed by him

or another would be an offense against the

United States, is punishable as a princi-

pal.

§ 371. Conspiracy to commit offense or to

defraud United States

If two or more persons conspire ei-

ther to commit any offense against the

United States, or to defraud the United

States, or any agency thereof in any man-

ner or for any purpose, and one or more of

such persons do any act to effect the ob-

ject of the conspiracy, each shall he

66

fined not more than $10,000 or imprisoned

not more than five years, or both.

§ 208. Acts affecting a personal financial

interest

(a) Except as permitted by subsection (b)

hereof, whoever, being an officer or em-

ployee of the executive branch of the

United States Government, of any indepen-

dent agency of the United States, a Fed-

eral Reserve bank director, officer, or

employee, or of the District of Columbia,

including a special Government employee,

participates personally and substantially

as a Government officer or employee,

through decision, approval, disapproval,

recommendation, the rendering of advice,

investigation, or otherwise, in a judicial

or other proceeding, application, request

for a ruling or other determination, con-

tract, claim, controversy, charge, accusa-

tion, arrest, or other particular matter

in which, to his knowledge, he, his

67

spouse, minor child, partner, organization

in which he is serving as officer, direc-

tor, trustee, partner or employee, or any

person or organization with whom he is ne-

gotiating or has any arrangement concern-

ing prospective employment, has a finan-

cial interest-

Shall be fined not more than $10,000,

Or imprisoned not more than two years, or

both.

68