Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. H CR 76-59 - Phil M. McNagny, Jr., Judge.
Cummings and Tone, Circuit Judges, and William J. Jameson, Senior District Judge.*fn*
The government appeals from a judgment of acquittal following a jury verdict of guilty. We hold that we have jurisdiction over the appeal and reverse with directions to enter a judgment of guilty.
The defendant Allison was charged with violating 18 U.S.C. § 1001 by knowingly making a false statement in a matter within the jurisdiction of the Department of Health, Education and Welfare. The alleged false statement, made in claiming reimbursement for expenses from the Department, was that he had paid the Internal Revenue Service $1,350.91*fn1
Allison operated Gary Technological Institute, Inc., which was an authorized and approved vocational trainer and as such a "subcontractor" in a program administered by the Department pursuant to the since repealed Manpower Development and Training Act of 1962, 42 U.S.C. § 2171, et seq., repealed effective June 30, 1974 by Pub. L. No. 93-203 (1973). In carrying out that program the Department entered into an agreement with the Indiana State Board of Vocational and Technical Education, under which the Board, as "contractor," administered and audited the vocational training programs conducted by subcontractors such as Allison. Subcontractors received 100 percent of their actual costs not exceeding the budgeted amount. To obtain reimbursement they submitted, using forms supplied by the Department, monthly reports of the expenditures for which the reimbursement was sought, supported by documents evidencing the expenditures. Allison submitted his reports to the Concentrated Employment Program's Gary office, the local agent for the state Board.
If the items of expenditure were to be documented by cancelled checks, the subcontractor would have to wait until he received his cancelled checks before submitting the claim for reimbursement. To avoid this delay the Board permitted the subcontractor to submit, as documentation in lieu of the cancelled check, a Xerox copy of the check before it was sent to the payee.
On May 29, 1974 Allison signed and submitted an executed form which listed among the items "expended this month" $1,350.91 and contained the certification "that the above report accurately reflects the expenditures of this project for the periods indicated." The documentation submitted with the form included a Xerox copy of a check dated May 29, 1974 in the amount of $1,350.91 payable to the Internal Revenue Service. In fact, Allison had not expended the $1,350.91 and never did transmit the original of the check in that amount to the payee.
The jury found Allison guilty. The District Court set aside the verdict and entered a judgment of acquittal. Viewing the charge as misrepresentation of an intent to send the check, the court held that it did not amount to a violation of § 1001, because that section applied only to misrepresentations concerning a past event or an existing fact. From this decision the government appeals.
Allison does not question the government's right to appeal under 18 U.S.C. § 3731. Nevertheless, in performance of our duty to satisfy ourselves as to our jurisdiction, we have taken note of United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977), decided by the Supreme Court the day the case at bar was argued orally before us.
In United States v. Wilson, 420 U.S. 332, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975), the Court held that the double jeopardy clause does not bar an appeal under § 3731 when the district court dismisses an indictment after a verdict of guilty. The reasoning of the Court's opinion appears applicable whenever the district judge overturns the jury's verdict on a solely legal ground. Nevertheless, the possibility that the recent Martin Linen Supply opinion could be read to imply that an appeal many not be taken from a judgment of acquittal entered under Rule 29, Fed. R. Crim. P., after a verdict of guilty makes it appropriate to consider the appealability of the order at bar in light of that opinion.
In Martin Linen Supply the Court took note of the venerable rule that "[a] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy. . .," id. at 1354, quoting from United States v. Ball, 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192 (1896). The cases indicate, however, said the Court, "that what constitutes an 'acquittal' is not to be controlled by the form of the judge's action," and that "rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." 97 S. Ct. at 1354-55. The Court also recognized that the judge, as well as the jury, can render an acquittal. Id. at 1355. Turning to a consideration of Rule 29, Fed. R. Crim. P., the Court noted that if the defendant's motion for acquittal had been granted before the jury retired the double jeopardy clause would have precluded retrial; that Rule 29 was adopted to give the trial judge the maximum opportunity to consider a motion for acquittal and did not contemplate "artificial distinctions" based on the time when the judge ruled on the motion; and that "judgments under Rule 29 are to be treated uniformly." Id. at 1356.
Yet throughout this discussion, in referring to the case before it, the Court was careful to recognize that the judgment of acquittal had been entered after a mistrial. Moreover, Mr. Justice Stevens' persuasive argument in his concurring opinion that the legislative history shows Congress did not intend by § 3731 to authorize an ...