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statements, a directed verdict of acquittal was
required.

Lange's limited education and administrative
inexperience must also be weighed in the
balance.... Under other facts and in other
circumstances, proof might have been adduced
which would support the conclusion of a jury that
a crafty and unscrupulous person intended the
affidavit to deceive despite its apparent
accuracy. This is not such a case. It is our
conclusion in this case that the jury could not
reasonably have concluded that the evidence and
reasonable inferences drawn from it established
Lange's intent to deceive beyond a reasonable
doubt.

Similarly, in the case of United States v. Race, 632 F.2d 1114 (4th Cir. 1980), the court noted that if the terms of a contract concerning payment for per diem of workers were considered "ambiguous," that is, that if dẹfendant' construction of the clause of the contract is one of two "reasonable" interpretations of the clause, then this would negate a fraudulent "intent": "If all CSI [the contractor] was doing was billing for what it construed the contract entitled it to for per dien, there could be no basis for a finding of fraudulent intent." 35

In addition to negating intent, the ambiguity of contract terms and contracting regulations, and flexibility and incorporation of "reasonableness" standards for cost and allocation procedures, may also negate another element of the false claims and false statements provisions, that is, that the claim or

35 632 F.2d 1114 at 1121.

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statement is actually "false." 36

As discussed by the Court in Race, supra at

1120:

Even if we were to accept the Government's
argument that the per diem clause is ambiguous.....
the result would not be different. To be
ambiguous a contract must be susceptible of at
least two reasonable constructions. When the
Government concedes that the clause is ambiguous,
it necessarily concedes that the defendants'
construction of the per diem clause, which is one
of the constructions, is reasonable. Such a
conclusion requires a ruling that the defendants
cannot be convicted under § 1001 for a statement
or billing which may be said to be accurate
within a reasonable construction of the contract.
This is so because one cannot be found guilty of
a false statement under a contract beyond a
reasonable doubt when his statement is within a
reasonable construction of the contract.
[W]henever a defendant's statement or action
under a contract accorda with a reasonable
construction of the enabling language of the
contract, the Government will not have carried
its burden of "negativ[ing] any reasonable
interpretation that would make the defendant 'a
statement factually correct" and thus a

conviction under § 1001 cannot stand under those
circumstances. 37°

Although the "intent" to deceive, to defraud or to do something wrong or

prohibited by law or regulation is required, the government need not prove a

wrongful or evil motive for the intentional deceit, nor an actual loss by the

38

government. As noted by the court in United States v. Maher, supra at 847:

36 The falsity of a statement is a required element of the false statement law (18 U.S.c. § 1001), but may not be required of a "fraudulent" claim alleged under 18 U.S.C. § 287, where the claim itself could be literally accurate but part of a fraud or fraudulent scheme on the government. See, for example, United States v. Winchester, 407 F.Supp. 261 (D. Del. 1975).

37 632 F.2d at 1120, quoting United States v. Anderson, 579 F.2d 455, 460 (8th Cir. 1977), cert. denied 439 0.3. 985 (1978).

38
United States v. Maher, 582 F.2d 842 (4th Cir. 1978); United States v.

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"The defendant could have formed the requisite criminal intent by acting with a consciousness that he was doing something wrong while pursuing a legitimate business goal...." This may be particularly relevant where business records are intentionally altered, concealed, ignored or forged in relation to claims upon the government, even when such conduct has an arguable "justifiable motive" or "legitimate business goal", (Maher, id.; United States v. White, supra at 1481-1482.

Mail Fraud (18 U.S.C. 1341). This provision prohibits one from using or causing the federal mails to be used in connection with a scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises. This statute has been found to require the specific "intent to defraud”, United States v. Pearlstein, 576 F.2d 531, 537 (3d Cir. 1978); United States v. Bohonus, 628 F.2d 1167 (9th Cir. 1980), cert. denied 447 U.S. 928); and as such, the defense of "good faith" is a complete defense to mail fraud. Durland v. United States, 161 U.S. 306, 313–

314 (1896); New England Enterprises, Inc. v. United States, 400 F.2d 58, 71 (1st Cir. 1968), cert. denied 393 U.S. 1036.

The mail fraud statute may be used against government contractors when fraudulent schemes are involved which cause the government to mail Treasury checks, 39 or where false certifications or documents are mailed to the government in connection with a scheme. 40 Such conduct may be prosecuted under the mail fraud statute, even though such activity is also being prosecuted under the false statements (18 U.S.C. § 1001), or false claims (18

39 United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir. 1982), cert. denied 103 S.Ct. 729 (1983).

40 United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978).

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U.S.C.287) laws, as those statutes have been found as not intended to be

exclusive criminal remedies precluding prosecution on other charges such as mail fraud charges. 41 Furthermore, mail fraud, unlike the false claims law, is a predicate offense for RICO.

42

Conspiracy to defraud the United States (18 U.S.C. § 371, see also 18 U.S.C.286). The fraud perpetrated against the United States in connection with procurement contracts may have been committed by persons in concert with conspirators. The conspiracy law, similar to the mail fraud provision, may be pursued as a separate and additional charge to the underlying substantive fraud and/or false statement or false claim. 43

The basic elements of a conspiracy under federal law are that a conspiracy 44 existed, that is, an agreement, tacit or explicit, to commit an offense; that the defendant knew of the conspiracy and joined it or "intended to associate himself with its objectives"; 45 and that at least one overt act in furtherance of the conspiracy was committed. 46 Since "secrecy and concealment are essential features of a successful conspiracy", 47 it has long been established that direct evidence of an agreement may not be available and need

41 United States v. Computer Sciences Corp., supra at 1186-88 (§ 287); United States v. Weatherspoon, supra at 599–600 [§ 1001].

42 United States v. Computer Sciences Corp., supra at 1189.

43 United States v. Livergood, 427 F.2d 420, 423 (9th Cir. 1970); Johl v. United States, 370 P.2d 174, 177 (9th Cir. 1966).

44 Lannelli v. United States, 420 U.S. 770, 777 (1975).

45 United States v. Horton, 646 F.2d 181 (5th Cir. 1981), reh'g denied, 655 F.2d 1131, cert. denied 454 U.S. 970; United States v. Slocum, 708 F.2d 587, 594-595 (11th Cir. 1983).

46 United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985).

47 Blumenthall v. United States, 332 U.S. 539, 557 (1947).

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not be provided, but that circumstantial evidence to prove the elements of a conspiracy, including the requisite knowledge and intent, is sufficient. 48

Once a conspiracy has been proven, it is a general rule that one's connection to that conspiracy need only be "slight" to be found guilty of conspiracy, as long as the evidence, circumstantial or direct, establishes that slight connection beyond a reasonable doubt. 49 An individual may therefore be found guilty of conspiracy even if he does not have knowledge of all the details or is not acquainted with all the parties of a conspiracy. 50 The Racketeer Influenced Corrupt

RICO (18 U.S.C. §§ 1961-1968). Organizations (RICO) law was enacted in 1970 as part of the Organized Crime Control Act (P.L. 91-452, 84 Stat. 922) to deal ostensibly with racketeering and organized crime, and the use of the proceeds from such activities in legitimate commerce. The provisions of the law are applicable on their face, however, and have been applied to activities which may be considered normal business fraud by corporations and businesses. 51 Since the RICO statutes may apply to a "pattern of racketeering" activity by an enterprise, which requires at least two acts which are indictable under certain specified state and federal laws, including mail and wire fraud (18 U.S.C. §§ 1341, 1341), the RICO statutes might apply in instances of a pattern of procurement fraud,

48 Glassen v. United States, 315 U.S. 60, 80 (1942); Direct Sales Co. v. United States, 319 U.S. 703, 711-713 (1943); Blumenthal, supra at 556-558; Hamling v. United States, 418 U.S. 87, 124 (1974).

49 United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977); United States v. Seni, 662 F.2d 227 (4th Cir. 1981), cert. denied 455 U.S. 950 (1982).

50 Blumenthal v. United States, supra at 557; United States v. Johnson, 645 F.2d 865, 868 (10th Cir. 1981), cert. denied, 454 U.S. 866.

51 Sedina v. Imrex Co., Inc., 105 S.Ct. 3275 (1985) (civil RICO action]; United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir. 1982), cert. denied, 103 S.Ct. 729 (1983).