852 F.

2d 1249

UNITED STATES of America, Plaintiff-Appellee,

v.
Anthony F. VAP, Defendant-Appellant.
No. 87-1713.

United States Court of Appeals,

Tenth Circuit.
July 26, 1988.

John A. Claro (Robert J. Westbrook, with him on the brief), Claro &
Johnston, Oklahoma City, Okl., for defendant-appellant.
David Seidman, Dept. of Justice, Washington, D.C. (Charles F. Rule,
Asst. Atty. Gen., Kenneth G. Starling, Deputy Asst. Atty. Gen., John J.
Powers, III, Dept. of Justice, Washington, D.C., Kent A. Gardiner and
Alan A. Pason, Dept. of Justice, Dallas, Tex., with him on the brief), for
plaintiff-appellee.
Before LOGAN and MOORE, Circuit Judges, and ANDERSON, District
Judge.*
LOGAN, Circuit Judge.

Defendant Anthony F. Vap appeals from his conviction on one count of

knowingly making false material declarations under oath ("perjury") before a
federal grand jury, in violation of 18 U.S.C. Sec. 1623. The perjury occurred
during a 1985 grand jury investigation (the "Evans investigation") of corruption
that targeted Evans & Associates Construction Co. ("Evans") and several
county commissioners in Oklahoma. Although not himself a target of that
investigation, defendant was called as a witness.

The government alleged that defendant's grand jury testimony contained

seventeen false declarations, including categorical denials of any personal
awareness, solicitation, or receipt of cash payments or kickbacks during his
decade-long tenure as a commissioner of Kay County, Oklahoma. For instance,
defendant answered in the negative the following questions:

3 "Are you aware of any ... kickbacks to county commissioners ... during the time
1.
that you were a county commissioner?"
4 "Has anyone ever asked you or anyone ever approached you and offered a
2.
kickback to you?"
53. "Have you ever asked for any money?"
6 "[H]ave any of these gentlemen ever just given you a cash gift or any other thing
4.
of value?"
75. "Have you ever turned down an offer of money from anyone?"
8

See Indictment, Case No CR 86-266W (W.D.Okla. Nov. 18, 1986), p 7 at 3, 45, 6, 9; I R. Tab 71 p 7. Defendant also denied having received cash or offers of
cash from several specific firms and individuals, including Lou Miller of
Thurman Bridge Co. and Jimmy Litton of Oklahoma Road Material Co. At
trial, the government produced evidence, which the jury accepted as proof of
perjury, that defendant had been offered and had received kickbacks and other
cash payments from four contractors.1

On appeal, defendant raises five assertions of error: (1) the district court should
have dismissed the perjury indictment on grounds of preindictment delay; (2)
defendant's false statements were not material to the grand jury's investigation
and therefore do not satisfy the statutory definition of perjury; (3) the district
court committed reversible error by conducting its hearing on materiality in
front of the petit jury; (4) the government's evidence was insufficient to
establish guilt; and (5) the government violated defendant's right to exculpatory
evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). We reject each of the claims and affirm defendant's conviction.

10

* Defendant complains that the federal government, which apparently learned

of defendant's involvement with kickbacks in the course of a 1981 state grand
jury investigation into corruption among county commissioners, improperly
delayed indicting defendant on charges relating to the kickbacks until 1986. He
makes a due process argument that this lengthy delay--five years after learning
of the crimes, and as many as eleven years after the crimes occurred-prejudiced him by making it difficult or impossible to obtain certain
exculpatory evidence and to construct an accurate account of the events of
nearly a decade ago. As he notes, a defendant's due process rights may be
violated even by indictments brought within the statute of limitations, if the
indictments are delayed because "of deliberate action by law enforcement

personnel designed to gain a tactical advantage resulting in actual prejudice to

the accused, thereby depriving him of his right to a fair trial." United States v.
Comosona, 614 F.2d 695, 696 (10th Cir.1980) (per curiam).
11

One problem with defendant's preindictment delay argument is that the alleged
predicates for preindictment delay are the pre-1981 acts of solicitation and/or
receipt of kickbacks, but the indictment he challenges is for the 1985 crime of
perjury. Thus, much of the complained-of delay took place before defendant
committed the crime for which he was indicted. Defendant attempts to remove
this infirmity by arguing that "[f]or all practical purposes, this perjury charge
was identical to a charge of receiving kickbacks 'on the merits' during 1977 and
1978. No matter how the prosecutorial pie is cut, it has remained in the oven
for eight (8) long years." Appellant's Opening Brief at 8.

12

Defendant's theory that the perjury charge is a surrogate for the stale corruption
crimes has been squarely rejected by the only circuit to consider it. In United
States v. Reed, 647 F.2d 849 (8th Cir.1981), the government brought a perjury
indictment nineteen months after the alleged perjury, but almost ten years after
the kickbacks and bribes about which the defendant allegedly had lied. The
Eighth Circuit refused to calculate the length of preindictment delay from the
date of the alleged kickbacks and crimes, reasoning that the defendant was
charged with perjury, a crime distinct from and committed long after the crime
of accepting bribes or kickbacks. Id. at 852-53. The court stated, "That the
government must prove, beyond a reasonable doubt as part of its perjury
prosecution, that defendant took bribes or kickbacks during 1970 through 1972,
events now more than ten years in the past, only makes the government's case
that much more difficult; it does not violate due process." Id. at 853 (emphasis
in original). The court also noted that grand juries permissibly may inquire into
events material to the investigation even if those events are no longer subject to
criminal charges because of the running of the statute of limitations, and that
committing perjury is not a permissible way of challenging the government's
right to ask questions. Id. & 853 n. 9 (quoting United States v. Wong, 431 U.S.
174, 180, 97 S.Ct. 1823, 1826, 52 L.Ed.2d 231 (1977)).

13

We consider the reasoning of Reed persuasive and adopt it as the rule in our
circuit. Preindictment delay must relate to the time between the commission of
the crime and indictment for that same crime. The delay here of one year
between the perjury and the indictment does not constitute a denial of due
process.

14

Defendant attempts to distinguish Reed by asserting that there the government

was unaware of any wrongdoing by defendant until the time of the perjury,

whereas here the government knew of the defendant's wrongdoing much

earlier. But this is a distinction without a difference. As in Reed, the perjury to
which the claim of preindictment delay relates had not been committed until the
grand jury testimony.
15

Nor has defendant made a "prima facie showing of fact ... that this delay was
intentionally or purposely designed and pursued by the Government to gain
some tactical advantage over or to harass him...." Comosona, 614 F.2d at 69697. Defendant presents a creative theory that the government delayed for five
years bringing criminal charges related to the actual kickbacks so that it would
have an excuse to return exculpatory records to vendors, who in turn would
destroy them. Defendant admits, however, "that he has no concrete evidence
that the government's delay in this matter was intentional and for the sole
purpose of giving it a tactical advantage over him." Appellant's Opening Brief
at 17. We thus reject the claim of prejudicial preindictment delay.

II
16

Defendant next contends that his statements, even if false, did not constitute
perjury because they were immaterial to the grand jury's investigation.
Materiality is a necessary element of the crime of perjury, as 18 U.S.C. Sec.
1623(a) prohibits one from "knowingly mak[ing] any false material
declaration" before a grand jury. Id. (emphasis added). Testimony is material if
"it had a tendency to influence, mislead or hamper the grand jury in a matter
which it had the authority to investigate...." United States v. Larranaga, 787
F.2d 489, 494 (10th Cir.1986). The testimony need not have an actual effect; it
merely must be " 'capable of influencing' " the grand jury. United States v.
Girdner, 773 F.2d 257, 259 (10th Cir.1985) (quoting United States v. Masters,
484 F.2d 1251, 1254 (10th Cir.1973)), cert. denied, 475 U.S. 1066, 106 S.Ct.
1379, 89 L.Ed.2d 605 (1986). Because the materiality of a false declaration is
an issue of law, Larranaga, 787 F.2d at 494 & n. 1; cf. Sinclair v. United States,
279 U.S. 263, 298-99, 49 S.Ct. 268, 273-74, 73 L.Ed. 692 (1929), it is
reviewable de novo on appeal.

17

In this case, defendant contends that the questions put to him during the grand
jury investigation bore no logical relationship to the subject matter of the
investigation. As defendant characterizes the investigation, it concerned solely
Evans' allegedly corrupt activities; yet defendant was asked "questions relating
to kickbacks totally unrelated to Evans." Appellant's Opening Brief at 20
(emphasis in original). Defendant further notes that the questions concerned
activities for which criminal charges no longer could be brought: a 1981 state
grand jury had decided not to indict defendant regarding these activities, and

the 1985 federal grand jury could not indict defendant because the statute of
limitations had run. Finally, the contractors about whom defendant lied not only
were unconnected with Evans, but also could not be indicted by the grand jury
because they had already been convicted for the activities about which
defendant lied. For all of these reasons, defendant argues that the questions
which he answered untruthfully were logically and legally immaterial to the
Evans investigation.
18

The district court found, and we agree, that the scope of the investigation was
considerably wider than defendant admits. By the time of defendant's 1985
testimony, the grand jury investigation included "whether persons or companies
engaged in the business of selling highway construction materials, equipment
or supplies to county commissioners had paid any money, kickbacks or bribes
to county commissioners in connection with such sales." I R. Tab 59 at 2. The
investigation had specifically focused on activities in defendant's jurisdiction,
Kay County, during 1980 and 1981. Defendant's blanket denials before the
grand jury of ever receiving kickbacks from Evans or any of the other
contractors might have led the grand jury to refrain from pursuing its
investigation much further. Also, several vendors testified before the grand jury
even after Evans was indicted; truthful testimony by defendant about kickbacks
he received from those vendors might well have affected their credibility with
that grand jury on matters it was investigating. Because defendant's false
testimony had the capacity to influence the grand jury in matters properly
before it, the false testimony was material.

III
19

Defendant next argues that because the materiality of an allegedly perjurious

statement is exclusively for the court, the hearing on materiality should have
been held outside the jury's presence. The district court, however, denied
defendant's motion to conduct a pretrial hearing on materiality and instead
conducted the materiality hearing in front of the jury.

20

This circuit has not faced this specific issue until now. But the others that have
considered it have held, in the words of the Fifth Circuit, that "[t]he issue [of
materiality] is a question to be decided by the court and is not an issue for the
jury to determine. Since this is so, evidence bearing solely on materiality
should be received outside the presence of the jury." United States v. Damato,
554 F.2d 1371, 1373 (5th Cir.1977) (footnotes omitted). Accord United States
v. Hansen, 583 F.2d 325, 333 (7th Cir.), cert. denied, 439 U.S. 912, 99 S.Ct.
283, 58 L.Ed.2d 259 (1978); United States v. Jackson, 640 F.2d 614, 617 (8th
Cir.), cert. denied, 454 U.S. 1057, 102 S.Ct. 605, 70 L.Ed.2d 594 (1981);

United States v. Dipp, 581 F.2d 1323, 1328 (9th Cir.1978), cert. denied, 439
U.S. 1071, 99 S.Ct. 841, 59 L.Ed.2d 37 (1979); United States v. Dennis, 786
F.2d 1029, 1041 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1973, 95
L.Ed.2d 814 (1987). Cf. United States v. Albergo, 539 F.2d 860, 864-65 (2nd
Cir.) (dissenting opinion; argument not addressed by majority, see id. at 863),
cert. denied, 429 U.S. 1000, 97 S.Ct. 529, 50 L.Ed.2d 611 (1976).
21

Courts have permitted juries to hear evidence on materiality only if that

evidence also is relevant to another issue properly before the jury. See Harrell
v. United States, 220 F.2d 516, 520 (5th Cir.1955); United States v. Langella,
776 F.2d 1078, 1081 (2nd Cir.1985), cert. denied, 475 U.S. 1019, 106 S.Ct.
1207, 89 L.Ed.2d 320 (1986). The government in this case, however, does not
allege that any of the evidence on materiality was relevant to proper jury issues
and advances no other reason for a jury to remain in the courtroom during a
materiality hearing. We join the aforementioned circuits and adopt the
aforementioned quotation from Damato as the rule of the Tenth Circuit. The
district court thus erroneously conducted the materiality hearing in front of the
jury.

22

The conviction must be reversed and the case remanded for a new trial, unless
this error was harmless. See Fed.R.Crim.P. 52(a); Fed.R.Evid. 103(a); United
States v. Scafe, 822 F.2d 928, 936 (10th Cir.1987). This court has stated that "
(p)erhaps the single most significant factor in weighing whether an error was
harmful is the strength of the case against the defendant." United States v.
Williams, 445 F.2d 421, 424 (10th Cir.), cert. denied, 404 U.S. 966, 92 S.Ct.
342, 30 L.Ed.2d 286 (1971) (quoting C. Wright, Federal Practice & Procedure:
Criminal, Sec. 854). Defendant claims prejudice in that the jury heard part of
the Evans indictment, which was relevant only to materiality and not to guilt.
Defendant describes the Evans indictment as containing several prejudicial
allegations:

23
"[T]hat
indictment ... alleged that Evans utilized blandishments, in addition to
money, in an attempt to corruptly influence public officials. The indictment alleges
that Evans seduced public officials not only with money, but also with vacations to
Hawaii, hunting trips in the Dakotas, and fishing trips in Canada (some of which
rugged expeditions were alleged, by the way, to have been 'full service' outings
complete with 'a woman and motel room' at the disposal of the indoor sportsman
who had grown weary of outdoor pursuits.) See: Evans Indictment, p 3e."
24

Appellant's Opening Brief at 31 (emphasis in original). He argues that the

"government evidence of 'materiality' was horribly prejudicial to the Defendant
on matters collateral to those which the jury was to decide," id. at 26 (emphasis

in original), and that reading it to the jury requires reversal. We conclude,

however, after reviewing the record, that the evidence of guilt was sufficiently
strong to render harmless any prejudicial effects of improper evidence at the
materiality hearing.
25

The government presented convincing testimony that defendant, despite his

denials in front of the grand jury, was offered and received cash payments from
several contractors. The owner of Thurman Bridge & Block Co. testified that he
provided cash to his salesmen over a period of approximately four years before
1981 for the explicit purpose of giving kickbacks to defendant. And one of his
salesmen, Louis Miller, testified that he paid the kickback money directly to
defendant on most sales for approximately three and a half years. Jim Litton, an
employee of Oklahoma Road Materials Co., testified that he gave defendant
cash payments on a regular basis as business was done for an unspecified
period of time. At the time of the payments, Litton said he considered them
campaign contributions; later, upon learning the legal definition of a kickback,
he conceded that the payments were kickbacks. A salesman for Bert Smith
Machinery, Inc. also testified that defendant solicited and received a $500
"campaign contribution" in return for defendant's assistance in the sale of
equipment to a fellow county commissioner. An employee of Stewart Supply
Co. admitted "paying some money to [defendant] ... to take his wife to dinner."
III R. 162. In his grand jury testimony, defendant denied being offered money
or kickbacks by, or receiving it from, any of these contractors.

26

Further, the government's case against defendant needed and probably received
very little help from the evidence adduced at the materiality hearing, which was
only a small part of the trial. Conceivably, the jury, after viewing the Evans
indictment, might have linked defendant to the charges contained therein,
especially since the alleged Evans corruption involved other Kay County
officials. The government, however, did not allege that defendant was involved
in corrupt activities with Evans, and testimony at trial explicitly showed
defendant's noninvolvement. Further, the Evans indictment, which was drawn
narrowly and named only three Kay County officials, did not name defendant.
The indictment in no way implied that any unnamed Kay County officials were
involved. Thus, we believe that it is highly unlikely that the jury could have
used the Evans indictment to reach prejudicial conclusions about defendant.

27

Viewing the impact of the Evans indictment in its most damaging light, some
jurors might have believed that the kickbacks alleged therein--free vacations
and sexual gratuities--constituted a higher form of corruption than cash gifts
and "campaign contributions." But even if the jury linked the allegations in the
Evans indictment to defendant, that linkage would have provided merely

cumulative evidence that various favors were sought or received. Such

cumulative impact is harmless, in light of the strength of the proper evidence of
inducements.
IV
28

Defendant next contends that the government failed to prove that he lied about
receiving kickbacks, since there was insufficient evidence to support a finding
of a quid pro quid in his dealings with contractors. A quid pro quid--the
conscious exchange of value for official favoritism--is a necessary element of
bribery-type crimes such as kickbacks. See United States v. Johnson, 621 F.2d
1073, 1076 (10th Cir.1980). A showing of quid pro quo thus would be
necessary if the truth of defendant's statements before the grand jury depends
on whether the transactions were kickbacks or merely gifts and campaign
contributions. Defendant complains of the lack of direct evidence "of any
prearranged quid pro quo agreement to pay kickbacks on sales made to Vap's
district...." Appellant's Opening Brief at 38.

29

We reject defendant's argument for two reasons. First, the lack of direct
evidence is not fatal because a quid pro quo can be established by
circumstantial evidence. Naturally, illegal schemes rarely will be memorialized
in formal agreements or other documents; thus, to have a conspiratorial
agreement, we have ruled that "[i]t is enough that the participating parties have
a tacit understanding based upon a long course of conduct." United States v.
Beachner Construction Co., 729 F.2d 1278, 1283 (10th Cir.1984). Tacit
understandings can be established by circumstantial evidence. See United
States v. Zang, 703 F.2d 1186, 1191 (10th Cir.1982), cert. denied, 464 U.S.
828, 104 S.Ct. 103, 78 L.Ed.2d 107 (1983). Kickback arrangements possess the
essential characteristics of conspiratorial agreements and are susceptible of the
same proof. The aforementioned testimony of representatives of four Oklahoma
contracting firms, see Part III, supra, established a strong circumstantial case
that a scheme existed whereby cash was given to defendant in conscious
exchange for his official favortism. We hold that sufficient evidence existed to
support a finding that a quid pro quo existed.

30

Second, defendant lied about transactions of which a quid pro quo was not a
necessary element. In front of the grand jury, defendant specifically denied that
any of the contractors had "ever just given [defendant] a cash gift or any other
thing of value[.]" I R. Tab 71, Indictment p 7 at 6. Later, defendant replied to
the question, "Have you ever turned down an offer of money from anyone?" by
declaring, "I have never been offered." Id. at 9. To find that defendant's denials
in response to these questions were false, the jury need not first find that a quid

pro quo existed. Thus, defendant's argument about the sufficiency of the
evidence, even if valid, would not disturb the conviction.
V
31

Defendant alleges several violations of the rule of Brady v. Maryland, 373 U.S.
83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), that a defendant must be
shown all exculpatory evidence in the government's possession. One violation
allegedly occurred when the government in 1984 returned numerous vendor
records to the four contractors, who in turn destroyed the records before
defendant's trial. Defendant argues that by allowing the contractors to take
control of and destroy these records, the government violated its duty to
preserve exculpatory evidence before its disclosure to a defendant. See United
States v. Bryant, 439 F.2d 642, 651 (D.C.Cir.1971). We reject this claim.
Defendant did not commit the crime for which he was convicted until
November 1985, a year after the government returned the records. As the
Supreme Court has noted, "[w]hatever duty the Constitution imposes ... to
preserve evidence, that duty must be limited to evidence that might be expected
to play a significant role in the suspect's defense." California v. Trombetta, 467
U.S. 479, 488, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984) (footnote omitted).
We cannot hold that the government reasonably could have expected the
vendor records to play a role in the defense of a crime not yet committed.

32

Defendant next complains that the government did not turn over FBI
summaries of the aforementioned vendor records in a timely fashion. There is
no merit to this argument. Defendant does not deny that he received all extant
summaries eighteen days before trial and that he used them at trial. "Brady is
not violated when the Brady material is available to defendants during trial."
United States v. Behrens, 689 F.2d 154, 158 (10th Cir.), cert. denied, 459 U.S.
1088, 103 S.Ct. 573, 74 L.Ed.2d 934 (1982).

33

Finally, defendant contends that the government failed to preserve an

exculpatory tape recording of a telephone conversation between defendant and
the FBI. That conversation, had it actually been recorded, would have been on a
specific cassette. Because the particular conversation, if indeed it was taped,
was not audible on that cassette without technical enhancement, the
government offered to send the cassette to the FBI laboratory for such
enhancement or a definitive determination that the conversation had not been
recorded. Since the laboratory analysis would have delayed the trial for an
indefinite period, the government moved for a nonprejudicial dismissal of the
indictment pending the analysis. In opposing this motion, defendant agreed "to
accept the existing tape, properly identified, in its present condition as

fulfillment of the Government's Brady duty with regard to that one specific
piece of exculpatory evidence." Defendant's Response to Government's Motion
to Dismiss Indictment Without Prejudice, Doc. No. 56 at 6 (emphasis in
original). We conclude that defendant thus knowingly and voluntarily waived
the right to review any recording of this particular conversation. He thus cannot
raise a Brady objection on appeal.
34

AFFIRMED.

The Honorable Aldon J. Anderson, Senior United States District Judge for the
District of Utah, sitting by designation

All parties agree that, by the time of defendant's appearance before the 1985
grand jury, the statute of limitations had expired for the illegal kickbacks about
which defendant was questioned