United States v. Philip A. McLennan and Fred H. Bender

Defendants McLennan and Bender appeal from judgments convicting them of (1) making false statements in a matter within the jurisdiction of a department or agency of the United States, (2) making false statements for the purpose of influencing the action of the Department of Housing and Urban Development (HUD), and (3) conspiring to make such false statements and to defraud the United States, all in violation of 18 U.S.C. §§ 371 , 1001, and 1010 (1970). We affirm.

FACTS

During the years 1971 through 1975, defendants, through two non-profit corporations, applied for loans from HUD under the College Housing Act of 1950, 12 U.S.C. §§ 1749 et seq. (1970), for the purpose of designing and constructing seven college dormitory facilities in four states. The Act provided for loans covering “project costs” incurred by a borrower and concurred in by HUD and prohibited profit-making by a borrower. Architectural costs were limited to those actually “necessary” for the construction of the particular project being funded.

From October, 1971, to April, 1975, the defendants received a total of $961,282 from HUD, which they repeatedly represented in loan applications, through owner-architect…

concurring specially:

I agree that the convictions of McLennan and Bender should be affirmed. I would reach that result, however, for reasons different from those advanced by Judge Duni-way.

Hearsay

I am unpersuaded by Brother Duniway’s attempt to distinguish the controlling precedent of United States v. Freeman, 519 F.2d 67 (9th Cir. 1975). Here, as there, the involved statements contained the words “I told” (or “stated” or “advised”), and thus at least that portion of the declarant-witness’s out-of-court utterance cannot be said to have been offered merely for the nonhearsáy purpose of proving notice, for previous notice in this context is the very truth of the matter asserted: that this statement was in fact previously uttered. 1 On the assumption that Freeman was correctly decided, therefore, Burnett’s testimony in the instant case was hearsay. Even as such, however, I would hold that it is admissible under the excited utterance exception, Fed. R.Evid. 803(2). See United States v. Bell, 351 F.2d 868, 872-73 (6th Cir. 1965), cert. denied, 383 U.S. 947 , 86 S.Ct. 1200 , 16 L.Ed.2d 210 (1966) (decided prior to the effective date of the Federal Rules of Evidence).

More…

(Dissenting):

I respectfully dissent. The results reached by my Brothers in their respective opinions are not acceptable to me.

HEARSAY

Like Judge Choy, I agree that Freeman, however ill-considered, is controlling here. I do not agree, however, that Burnett’s statement was, in any event, admissible under the “excited utterance” exception to the hearsay rule. Fed.R.Evid. 803(2). In my judgment, the record does not lead to the firm belief that Burnett spoke “under the immediate and uncontrollable domination of the senses . . ..”6 Wigmore, Evidence § 1747 at 195 (Chadbourn rev. 1976). Accordingly, I would reverse under the compulsion of Freeman.

COPELAND ACT

Again, like Judge Choy, I cannot agree with our Brother Duniway’s conclusion that the District Court’s failure to instruct the jury comprehensively in respect to the dismissal of the Copeland Act (Act) count of the indictment resulted in no more than harmless error. Unlike my Brother Choy, however, I cannot conscientiously agree to affirm, even assuming arguendo, that the District Court erred in dismissing the Copeland Act count of the indictment. 1 This is especially so because of the prosecutor’s references during his…

563 F.2d 943 2 Fed. R. Evid. Serv. 750 UNITED STATES of America, Plaintiff-Appellee, v. Philip A. McLENNAN and Fred H. Bender, Defendants-Appellants. No. 76-2365. United States Court of Appeals, Ninth Circuit. Oct. 19, 1977. Leslie M. Roberts, Norman Sepenuk, Portland, Or., argued for defendants-appellants. Marc Blackman, U. S. Atty., Portland, Or., argued for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before DUNIWAY, ELY and CHOY, Circuit Judges. DUNIWAY, Circuit Judge: 1 Defendants McLennan and Bender appeal from judgments convicting them of (1) making false statements in a matter within the jurisdiction of a department or agency of the United States, (2) making false statements for the purpose of influencing the action of the Department of Housing and Urban Development (HUD), and (3) conspiring to make such false statements and to defraud the United States, all in violation of 18 U.S.C. §§ 371 , 1001, and 1010 (1970). We affirm. FACTS 2 During the years 1971 through 1975, defendants, through two non-profit corporations, applied for loans from HUD under the College Housing Act of 1950, 12 U.S.C. §§ 1749 et…