U.S. v. Nash, s. 91-50760

• Decision Date: 06 June 1994
• Docket Number: 92-50310,92-50374 and 93-50694,Nos. 91-50760,s. 91-50760
• Citation: 115 F.3d 1431
• Parties: 97 Cal. Daily Op. Serv. 4952, 97 Daily Journal D.A.R. 8049 UNITED STATES of America, Plaintiff-Appellee, v. Joseph V. NASH, Defendant-Appellant. . Submitted *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1431

115 F.3d 1431

97 Cal. Daily Op. Serv. 4952, 97 Daily Journal

D.A.R. 8049

UNITED STATES of America, Plaintiff-Appellee, v. Joseph V. NASH, Defendant-Appellant.

Nos. 91-50760, 92-50310, 92-50374 and 93-50694.

United States Court of Appeals Ninth Circuit.

Submitted ^* June 6, 1994.

Withdrawn from Submission Dec. 21, 1994.

Resubmitted Aug. 17, 1995.

Filed Aug. 24, 1995.

Opinion Withdrawn Jan. 3, 1996.

Filed Feb. 6, 1996.

Opinion Withdrawn June 25, 1997.

Decided June 25, 1997.

Joseph V. Nash, Pro Se, Los Angeles, CA, defendant-appellant.

Carolyn J. Kubota and Dorothy Shubin, Assistant United States Attorneys, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Laughlin E. Waters, District Judge, Presiding. D.C. No. CR-91-0609-LEW.

Before: FLETCHER, CANBY and HALL, Circuit Judges.

ORDER

The opinion filed February 6, 1996, is withdrawn and the opinion below is filed in its stead.

OPINION

CYNTHIA HOLCOMB HALL, Circuit Judge:

Joseph Nash appeals his convictions of making false statements to a federally insured lending institution in violation of 18 U.S.C. § 1014 and bank fraud in violation of 18 U.S.C. § 1344. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and this court has jurisdiction under 28 U.S.C. § 1291. In light of United States v. Wells, --- U.S. ----, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997), and Johnson v. United States, --- U.S. ----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), we affirm but remand for resentencing in part.

I. Background

Nash was charged in a fifteen-count superseding indictment. Counts 1 through 4 charged him with submitting false tax returns to Liberty National Bank in violation of 18 U.S.C. § 1014. Nash's partnership, Nash & Company, applied to Liberty National for a $250,000 line of credit and a $250,000 loan, each of which Nash offered to guarantee personally. As part of the application process, Nash submitted his personal income tax returns for 1985 and 1986. The indictment alleged that these returns "greatly overstated [Nash's] income for [those] year[s]" and that relying in part on the contents of these documents, Liberty National granted Nash & Company the loan and the line of credit. Nash also submitted these allegedly false tax returns to First Pacific Bank to obtain a $200,000 unsecured personal loan. This conduct formed the basis of counts 5 and 6, also charging Nash with violating 18 U.S.C. § 1014.

Counts 7 through 9 charged Nash with a scheme that began in 1985. Nash was the president and owner of First Professional Realty Company of America, Inc. In January 1985, he obtained for First Professional a $250,000 loan from Union Bank. First Professional held a promissory note from another business called TAG Properties (TAG). As of January 1985, the note obligated TAG to make three payments to First Professional of $450,000 each. To obtain the loan, Nash represented to Union Bank that First Professional would repay the loan with the future installments on this note. Union Bank, in an effort to ensure its right to receive the proceeds, requested that Nash give the TAG promissory note to it for safekeeping. Nash gave Union Bank a document which he incorrectly represented as the TAG note.

When Nash was later unable to repay the loan, he sought and received three extensions from Union Bank. The extensions in December 1986 and June 1987 were granted in reliance upon Nash's representation that Union Bank would receive the remaining amount due when TAG made its December 16, 1987, payment to First Professional. What Union Bank did not know, however, was that TAG had paid the note in full on or about January 20, 1986. It was alleged that Nash was aware of this final payment when he sought the extension. These activities form the basis of the bank fraud charged in Count 7 of the indictment. Counts 8 and 9 charged Nash with giving false statements to the bank, consisting of the December 1986 and June 1987 misrepresentations.

Nash received one other loan during this period. In September 1986, Nash applied to Great Western Bank for a $4,360,000 loan secured by an office building he owned in Beverly Hills. He represented to Great Western that the property was fully leased and would generate enough rent to repay the loan. In support of this claim, Nash submitted two seemingly genuine lease agreements. One lease showed Revel Travel as leasing the first floor of the Beverly Hills property for $20,340 per month. In reality, Revel Travel was paying only $10,500 per month. The other lease stated that McMurtry & Bell, an insurance company, was leasing the entire second floor of the Beverly Hills property for $20,093 per month until February 1, 1988. In reality, the insurance company was leasing on a month-to-month basis and paid only $2000 per month. Nash obtained the loan from Great Western and in return assigned to Great Western the lease proceeds from the Beverly Hills property. This conduct gave rise to counts 10 through 15 of the indictment. Counts 10 through 13 each charged Nash with bank fraud based on the loan application and the security agreement, promissory note, and assignment of leases between Nash and Great Western. Counts 14 and 15 charged violations of 18 U.S.C. § 1014 based on the submission of the inaccurate Revel and McMurtry leases.

Nash was convicted on all fifteen counts of the superseding indictment.

II. 18 U.S.C. § 1014 Convictions

A. Gaudin error

Nash claims that the district court failed to comport with the requirements of United States v. Gaudin, 515 U.S. 506, ----, 115 S.Ct. 2310, 2314, 132 L.Ed.2d 444 (1995) when it instructed the jury that income and asset statements are material for purposes of 18 U.S.C. § 1014. A prior question, however, is whether materiality is even an element of section 1014. Although this court held in United States v. Hutchison, 22 F.3d 846, 851 (9th Cir.1993), that it was, the Supreme Court in Wells disagreed. --- U.S. at ----, 117 S.Ct. at 927. Accordingly, the government was not required to prove that the false statements were material. The district court's instruction that the statements were material as a matter of law did not take an element away from the jury and was therefore harmless.

B. Sufficiency of the Evidence

Nash argues that the evidence on counts one to six, which involved the submission of fabricated tax returns to banks in loan applications, was insufficient to support a conviction. In particular, he claims that the government never proved that the inflated income reported on the returns was false, only that it differed from the amounts reported to the IRS. We review a claim of insufficient evidence to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements beyond a reasonable doubt. United States v. Jones, 84 F.3d 1206, 1210 (9th Cir.1996). We find that the evidence sufficed.

The government proved significant disparities in the figures for total income, adjusted gross income, taxable income, and interest income reported on the tax returns given to the banks and on the returns submitted to the IRS. Nash did not dispute that the returns submitted to the IRS were correct but testified the ones given to the banks were merely drafts that he revised after receiving amended Form 1099 reports of interest income earned. The jury had ample evidence from which to conclude that this explanation was implausible, however. In particular, it would be necessary to believe that he received 1099s from at least two sources that were inaccurate by exactly $1600 in one case and $9000 in another. Nash had also admitted that he testified to the contrary in a prior proceeding, thereby undermining his credibility. Under these circumstances, we think the jury was entitled to disbelieve Nash and conclude beyond a reasonable doubt that Nash falsified the tax returns.

C. Variance between evidence and indictment

The indictment alleged that Nash overstated his income on the tax returns. Nash argues that because the government only proved discrepancies in "total income," "adjusted gross income," and "taxable income," the evidence impermissibly amended the indictment. The term "income," however, at least when used in the context of an indictment alleging the use of a false income tax return, encompasses the more specific terms "total income," "adjusted gross income," and "taxable income." As a result, the crime proven at trial did not differ significantly from the one charged. At most, then, the proof at trial constituted a variance from the indictment, rather than an amendment to it. See United States v. Momeni, 991 F.2d 493, 495 (9th Cir.1993). Reversal on this ground is not warranted.

D. Unanimity instruction

Nash argues that the district court should have given a specific unanimity instruction on the false statement counts, but he did not request one at trial. Furthermore, there was no special complexity or ambiguity in the indictment and trial evidence that would have warranted such an instruction. As a result, we find no error.

E. Instruction on Falsity

Nash also contends that the district court erred in failing to give a specific instruction that the jury had to find that he falsely overstated his income to convict him under section 1014. But Nash never submitted a proposed instruction to the court, even though his counsel promised to do so. In this context, we review for plain error. See United States v. Dorri, 15 F.3d 888, 890-91 (9th Cir.1994). Since the court gave a generic instruction on section 1014 requiring proof that the statements were false, and read to the jury the indictment, which charged Nash with falsely overstating his income, we find no prejudice to Nash, even if the court might have given a more specific instruction.

We therefore affirm all of the section 1014 convictions.

III. 18 U.S.C. § 1344 Convictions

Nash argues that...