Appellants rely heavily upon United States v. Mekjian, 505 F.2d 1320 (5th Cir. 1975) and Johnson v. United States, 410 F.2d 38 (8th Cir. 1968), Cert. denied 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 72 (1969). These cases do not provide the comfort sought. Mekjian arose under 18 U.S.C. s 1001, where both willfully and knowingly are required by the words of the statute. In Johnson the court seems to be holding that when one is charged with knowingly making a false claim and evidence is adduced showing knowledge of the requirements of the contract with the governmental agency and the complete disregard for such, and thereafter the jury is properly charged regarding the necessity of the government proving that such claims were false, fictitious and fraudulent and made knowingly and intentionally, “willfulness” has been established.
The doctrine means only that a defendant is entitled to a judgment of acquittal if the evidence at the close of the Government's case is insufficient, and that the trial judge may not, be (Sic ) deferring decision on the defendant's motion, allow sufficient evidence to be supplied by the defense or by the prosecution on rebuttal.
Well, I will instruct the jury not to consider the argument, although I don't think counsel said that there was any evidence to that effect. He was simply drawing a conclusion if there had been evidence to that effect he would have been endangering the safety of those people who worked on it, but members of the jury, I will instruct you not to consider the argument.
It is necessary that you find beyond a reasonable doubt that any act you may have found beyond a reasonable doubt to have been committed by the defendant was done or committed knowingly. In this connection, however, you are instructed that a person who makes a claim or causes a claim to be made with reckless disregard for the truthfulness of the claim and with the conscious purpose to avoid learning the truthfulness of the claim is deemed to have knowledge of the claim and its truthfulness or lack thereof.
You are instructed that you cannot find a defendant guilty with respect to any count in the indictment merely from the fact, if you find it was a fact, that he was president of this Mikelco of Bandera, Inc. It is necessary that you find beyond a reasonable doubt that any act you may have found beyond a reasonable doubt to have been committed by the defendant was done or committed knowingly. In this connection, however, you are instructed that a person who makes a claim or causes it to be made with reckless disregard for the truthfulness of the claim and with the conscious purpose to avoid learning the truthfulness of the claim is deemed to have knowledge of the claim and its truthfulness or lack thereof.
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