No. 97-5704

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997

ELMER STRONG, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

DANIEL S. GOODMAN
Attorney

Department of Justice
Washington, D.C.  20530-0001
(202) 514-2217

---------------------------------------- Page Break ----------------------------------------

QUESTION PRESENTED

    Whether the jury was properly instructed on the elements of
the offense of knowingly making a false, Fictitious, or fraudulent
claim, in violation of 18 U.S.C. 287.

(I)

---------------------------------------- Page Break ----------------------------------------

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-5704

ELMER STRONG, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
                
BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

    The opinion of the court of appeals ( Pet. App . B2-B5) is
unpublished, but the judgment is noted at 114 F.3-d 1192.

JURISDICTION

    The judgment of the court of appeals was entered on May 20,
1997.  The petition for a writ of certiorari was filed on August
18, 1997.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

STATEMENT

    Following a jury trial in the United States District Court for
the Central District of Illinois, petitioner was convicted on ten
counts of presenting false claims to the government, in violation

---------------------------------------- Page Break ----------------------------------------

2

of 18 U.S.C. 287. He was sentenced to 15 months' imprisonment, to
be followed by two years' supervised release. The court of appeals
affirmed.  Pet. App. B2-B5.
    1.  In 1991 and 1992,  petitioner owned several gasoline
stations. At that time, federal law required gasoline dealers to
pay a retail tax of 14.1 cents per gallon.  To encourage sales of
gasoline mixed with alcohol, the government refunded 4.44 cents per
gallon for sales of gasoline mixed with at least ten percent
alcohol.  Pet. App. B2.  In order to obtain the refund, gasoline
dealers were-required to file with the government a Form 843, which
sets forth the percentage of alcohol that was mixed with gasoline.
Petitioner filed with the government ten Form 843s seeking refunds
of more than $70,000.  A subsequent investigation by the Internal
Revenue Service revealed that petitioner had not purchased enough
alcohol to produce a gasoline mixture with a ten percent alcohol
content-  Petitioner eventually admitted that his gasoline mixture
contained only four to six percent alcohol.  Id. at B3.
    Petitioner was indicted by a grand jury on ten counts of
filing false, fictitious, or fraudulent claims with the government,
in violation of 18. U.S.C.  287.  Section 287 i-reposes criminal
penalties on anyone who "makes or presents * * * any claim upon or
against the United States, or any department or agency thereof,
knowing such claim to be false or fictitious, or fraudulent.
    At trial, petitioner claimed that he believed that he was
entitled to the tax refund, even though he did not use ten percent
alcohol in his gasoline mixture, and that he had lacked an intent

---------------------------------------- Page Break ----------------------------------------

3

to defraud the government.  Pet. App. B3.  The court refused
petitioner's proffered jury instruction that would have required
the government to prove "specific intent * * * that the defendant
knowingly did an act which the law forbids, purposely intending to
violate the law.   Ibid  Instead, the court instructed the jury
that in order to find petitioner guilty of making a false claim,
the jury must find (1) "[t]hat the defendant made a claim against
or presented a claim to the United States through the Internal
Revenue Service"; (2) "[t]hat the claim was false, fictitious, or
fraudulent"; and (3) "[t]hat the defendant knew at the time that
the claim was made that it was false, fictitious, or " fraudulent. "
Id. at B3-B4, D1.  The court further instructed the jury that "[a]
statement is false or fictitious if untrue when made, and then
known to he untrue by the person making it or causing it to be
made," and that "[a] statement or representation is `fraudulent' if
known to be untrue, and made or caused to be made with the intent
to deceive. "  Id. at B4.  The jury found petitioner guilty on all
ten counts of making a false claim.  Pet. App. A, B4.
    2.  In an unpublished opinion, the court of appeals affirmed.
Pet. App. B2-B5.  The court rejected petitioner's argument that the
district court should have instructed the jury that a "specific
intent to defraud the government" is an element of a false claim
offense under Section 287,  and held that  "[p]roof of specific
intent to defraud the government is not required to convict under
[Section] 287."  Id. at B4.  The court of appeals relied on the
"plain language'' of the statute, and its recent decision in United

---------------------------------------- Page Break ----------------------------------------

4

States v. Catton, 89 F.3d 387, 392 (1996), which similarly had held
that an intent to defraud is not an element of submitting a false
claim under Section 287.  Pet. App. B4.  Accordingly, the court
concluded that "the district court did not err in instructing the
jury. "  Id. at B5.1

ARGUMENT

    1.  Petitioner contends (Pet. 11) that the decision in this
case conflicts with decisions of other courts of appeals on whether
19 U.S.C. 287 requires proof of intent to defraud.  That claim
lacks merit and does not warrant further review.
    a.  The court of appeals correctly held that an intent to
defraud is not a requisite element of making a false claim under
Section 287.  That statute prohibits making or presenting a claim
to any United States agency, knowing that the claim is "false,
fictitious, or Fraudulent. "  18 U.S.C. 287.  Thus , "[S]ection 287
is phrased in the disjunctive, and a conviction under that statute
may therefore be based on proof that a claim submitted to the
government is either false,  fictitious or fraudulent. "  United
States v. Blecker, 657 F.2d 629, 634 (4th Cir. 1981), cert. denied,

___________________(footnotes)
                                                  
    1 The court of appeals also observed, as the district court
similarly had instructed the jury, Pet. App. B4, that " [a]
statement is 'false' or 'fictitious',  if untrue when made, and
then known to be untrue by the person making it or causing it to
be made," and that "[al statement or representation is
`fraudulent' if known to be untrue, and made or caused to be made
with the intent to deceive "the government agency to whom
submitted."   Id. at B5 n.l (quoting United States v. Milton, 602
F.2d 231, 233 (9th Cir. 1979)).  `Under those definitions, the
court continued, "an intent to deceive only becomes relevant when
the government attempts to prove that the statement was
fraudulent." Ibid. (quoting Milton, 602 F.2d at 233).

---------------------------------------- Page Break ----------------------------------------

5

454 U.S. 1150 (1982); see also United States v. Irwin, 654 F.2d
671, 683 (10th Cir. ) ("The disjunctive term `or' clearly indicates
that making any one of the three types of proscribed claims would
subject the claimant to criminal liability.  Thus, a claim need not
be fraudulent so long as it is- false or fictitious. "  (citations
omitted) ) ,  cert. denied,  455 Us.  1016 (1982); see also United
States v. Barker, 942 F.2d 585, 588 (1991) ("Section 287 contains
no requirement that the intent, purpose, or effect of the false
claim must be to cause the government a loss. ") , superseded, 967
F.2d 1275 (9th Cir. 1992).
    Indeed, Section 287 is worded similarly to 18 U.S.C. 1001,
which  also punishes anyone who, in any matter within the
jurisdiction of the Federal government, "knowingly and willfully
* * * makes any false, fictitious, ox fraudulent statements. " As
this Court observed with respect to Section 1001, "[n]oticeably
lacking * * * is any requirement that the prohibited conduct be
undertaken with specific intent to deceive the Federal Government. "
United States v. Yermian, 468 U.S. 63, 73 (1984) ; see also Browder
v. United States, 312 U.S. 335, 340 (1941) (holding that 18 U.S.C.
1542, which punishes anyone who "willfully and knowingly" uses a
passport obtained by a "false statement, " does not require proof of
a use "which is in itself evil as the use of a passport to invoke
fraudulently the protection of the United States abroad") (internal
quotation marks omitted).  Accordingly, because petitioner was
convicted of knowingly presenting false claims to the government
(Pet. 9; Pet. App. A), the jury correctly was instructed that it

---------------------------------------- Page Break ----------------------------------------

6

could find the defendant guilty if it found beyond a reasonable
doubt that the defendant made a false claim while knowing the claim
to be untrue.  See Pet. App. B4-B5, D1-D3.2
    b.  Contrary to petitioner's contention (Pet. 11) , there is
not a conflict in the courts of appeals on whether a false claim
offense under Section 287 requires proof of an intent to defraud.
In support of his contention, petitioner simply attaches commentary
to pattern jury instructions that cites United States v. Drape, 668
F.2d 22 (1st Cir. 1982), and United  States v. Rifen, 577 F.2d 1111.
(8th Cir. 1978), for the proposition that "the First and Eighth
Circuits have required an intent to defraud under [Section] 287."
Pet. App . C2.3  Those decisions do not hold, however, that an
intent to defraud is an element of making or presenting a false
claim under Section 287.  Indeed, as  the commentary itself
observes ibid., the Eighth Circuit's decision in Rifen involved a
defendant who was charged with making fraudulent claims under the
statute.  See Rifen  577 F.2d at 1113 ("the evidence is * * *

___________________(footnotes)
            
    2 The other appellate decisions -cited by petitioner (Pet.
11) , which interpret statutes different from Section 287, do not
support his contention that an intent to defraud is a requisite
element for a false claim offense under Section 287.  The
decision in United States v. Leech, 996 F.2d 158 (7th Cir. 1993),
cert. denied, 510 Us. 1047 (1994), involved 18 U.S.C. 152, which
expressly requires fraudulent conduct.  Similarly, in United
States v. Lewis, 406 F.2d. 486 (7th Cir.), cert. denied, 394 U.S.
1013 (1969), the defendant was charged with fraudulent conduct
under 18. U.S.C. 289 and 371.  In any event, the decision in Lewis
does not address the issue of the requisite level of criminal
intent under either statute.

    3 Petitioner appears to have attached the pattern jury
instructions from the Seventh Circuit- See The Federal Criminal
Jury Instructions of the Seventh Circuit, Vol. II, Chap. 15, 40-
41 (1983).

---------------------------------------- Page Break ----------------------------------------

7

sufficient to sustain the jury's verdict on the three counts of
making a fraudulent claim against an agency of the United States") .
    Similarly, the First Circuit's decision in Drape does not hold
that an intent to defraud is a requisite element under Section 287.
That decision involved a defendant convicted under Section 287 for
making a false tax return.  The court simply cited Rifen as
supporting the notion that "[w]here a tax return is filed with the
`guilty, actual knowledge that it was false, ` the jury may infer
the requisite intent to defraud the government."- Drape, 668 F.2d
at 26.  In describing the necessary mens rea that would support the
jury's verdict, however,  the court of appeals found sufficient
"[evidence indicating that [the defendant] knew what he was doing"
and did not require additional evidence indicating an intent to
defraud.  Ibid  Accordingly; because petitioner points to no
decision holding that an intent to defraud is an element of a false
claim offense under Section 287,  the decision below does not
present a conflict that warrants this Court's review.
    2.  Petitioner also suggests (Pet. 11) that the jury should
have been instructed on the element of willfulness or intent
requirement that the Defendant act with a purpose or awareness that
he is doing something that is wrong or the law forbids "4

___________________(footnotes)    
                                              
    4  Petitioner requested a jury instruction (Pet. App. E2)
that would have required the government to "prove that the
defendant knowingly did an act which the law forbids,
purposefully intending to violate the law."  Petitioner also
requested (id. at E3) that the jury be instructed that  [a]n act
is done willfully if done voluntarily and intentionally, and with
intent to do something the law forbids, " and that  [w]illfulness
in criminal tax cases requires the government to prove that the
                                                                            (continued. . . )

---------------------------------------- Page Break ----------------------------------------

8

Petitioner cites (ibid.) the Fourth Circuit's decision in United
States v. Maher, 582 F.2d 842 (1978), cert. denied, 439 U.S. 1115
(1979), in which the trial court had refused to instruct the jury
that a false claim offense under Section 28.7 requires an intent to
defraud, but instead had instructed the jury that the government
had to prove that the defendant knowingly caused a false claim to
be made and that he acted "willfully, by acting with either a
consciousness that he was doing something wrong or with a specific
intent to violate the law. " Id. at 845.  The court of appeals held
that a false claim offense under Section 287 "does not require
proof of a specific intent to defraud.   Id at 847.  The court
also found that the district court properly instructed the jury
that Section 287 "may be violated by the submission of a false
claim, a fictitious claim, or a fraudulent claim, if * * * the
defendant  acted with knowledge  that the claim was false or.
fictitious or fraudulent and with consciousness that he was either
doing something which is wrong or which violated the law."  Ibid
 (citations omitted).  In approving the trial court's  jury
instructions which included a requirement of knowledge of
wrongdoing or illegality, however, the court in Maher did not hold
that a jury must be so instructed.  Indeed, "[t]he primary issue"
confronting the court in that case was "whether the criminal intent
essential for conviction [under Section 287] is * * * limited to a

___________________(footnotes)

    4 (... continued)
defendant had actual knowledge of the provisions of the Internal
Revenue Code at issue and that he voluntarily and intentionally
violated its duties. "

---------------------------------------- Page Break ----------------------------------------

9

specific intent to defraud.   Id. at 843.5
    
    Moreover, if the Fourth Circuit is ever presented with the
issue,  it likely will conclude that  "willfulness" is  not a
requisite element under Section 287.  There is no language in the
statute requiring proof that "the defendant act "willfully" or with
any intent to violate the law.  In a decision rendered after Maher
the Fourth Circuit in United States v. Blecker, 657 F.2d at 634,
discussed the elements of a Section 287offense without any
reference to the word "Willfully" , and without requiring that the
defendant act with a purpose to disobey the law.  Moreover, Maher
was decided before this Courts decision in Yermian, supra, in
which the Court described the mental element of 18 U.S.C. 1001  
which does employ the term "willfully" as requiring proof only of
"intentional and deliberate lies."  468 U.S. at 74.  Relying on the
Court's decision in Yermian, the Fourth Circuit recently concluded
in United States v. Daughtry, 48 F.3d 829, 832, "vacated on other
grounds, 116 S. Ct. 510 (1995) , that the word "willfully" in
Section 1001 does not require an intentional violation of the law.
The court in Daughtry also rejected the defendants reliance on
Maher.  The court noted that "[t]he word 'willfully does not   I

___________________(footnotes)

    5  Petitioner also cites (Pet. 11) two decisions in which
the courts of appeals do not address whether "willfulness" is a
requisite element of Section 287, but simply note that the
district court had given a jury instruction that contained the
element of "willfulness. "  See Milton, 602 F.2d at 232-233 & n.6;
Barker, 942 F.2d at 588-589.  Petitioner also relies (Pet. 11) on
United States V. Krietemeyer, 506 F. Supp. 289 (S.D. Ill. 1.981)) .
That decision, however, involves the civil false claims statute
and does not contain any discussion of the word "willfully" or
"willfulness. "

---------------------------------------- Page Break ----------------------------------------

10

appear in [Section] 287   the district court apparently read it
into the statute. "  Id., at 832 n*.6  In light of the developments
in the law since the Fourth Circuit's decision in Maher , the Fourth
Circuit is likely to hold,  if presented with the issuer  that
neither "willfulness if nor an intent to violate the law is an
element of a Section 287 offense.  Thus , further review by this
Court is not warranted.7

CONCLUSION

  The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

DANIEL S. GOODMAN
Attorney

OCTOBER 1997

___________________(footnotes)

    6 The court in  also discussed this Court's
decision in Ratzlaf v. United States, 510 Us. 135 (1994).
Although in that case the Court defined the term "willfully" in
31 Us. 5322(a) to require knowledge of illegality, the Court
reiterated that the meaning of the word "willfully" varies
depending on the context in which the word is used, 510 U.S. at
141, and that "ignorance of the law generally is no defense to a
criminal charge, " id. at 149.
    7 Additionally, this case would not be an appropriate
vehicle to address whether an intent to violate the law should be
read into Section 287, because the decision below does not
directly address the issue.  Although the court below cites
decisions concluding that "willfulness" is not an element of
Section 287, those decisions either equated "willfulness" with an
intent to defraud (United States v. Catton, 89 F.3d at 392;
United States v. Ferguson, 793 F.2d 828, 831 (7thCir.), cert.
denied, 479 U.S. 933 (1986)), or did not define the "specific
level of culpability that would constitute "willfulness" (United
States v. Irwin, 654 F.2d at 682).