141 F.3d 1328 (9th Cir. 1998), 97-30018, United States v. Ladum

Docket Nº:97-30018, 97-30019, 97-30022, 97-30027, 97-30030 and 97-30044.
Citation:141 F.3d 1328
Party Name:98 Cal. Daily Op. Serv. 2851, 98 Daily Journal D.A.R. 3937 UNITED STATES of America, Plaintiff-Appellee, v. Robert E. LADUM; Ronald D. Van Vliet; Daniel Hong; Echols Doyle Ford; David C. Grigonis; James R. Weaver, Defendants-Appellants.
Case Date:April 17, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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141 F.3d 1328 (9th Cir. 1998)

98 Cal. Daily Op. Serv. 2851,

98 Daily Journal D.A.R. 3937

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert E. LADUM; Ronald D. Van Vliet; Daniel Hong; Echols

Doyle Ford; David C. Grigonis; James R. Weaver,

Defendants-Appellants.

Nos. 97-30018, 97-30019, 97-30022, 97-30027, 97-30030 and 97-30044.

United States Court of Appeals, Ninth Circuit

April 17, 1998

Argued and Submitted March 3, 1998.

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Robert Goffredi, Portland, Oregon, for Ford.

Lawrence Matasar, Portland, Oregon, for Hong.

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Daniel Feiner, Portland, Oregon, for Ladum.

Robert Reid, Portland, Oregon, for Van Vliet.

John Ransom, Portland, Oregon, for Weaver.

John Storkel, Salem, Oregon, for Grigonis.

Claire M. Fay and Kent S. Robinson, Assistant U.S. Attorneys, Portland, Oregon, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CR-94-00304-HA.

Before: FERNANDEZ, RYMER, and TASHIMA, Circuit Judges.

Opinion By Judge RYMER; Dissent by Judge TASHIMA.

RYMER, Circuit Judge:

Robert Ladum, Echols Ford, David Grigonis, Daniel Hong, Ronald Van Vliet, and James Weaver appeal their jury convictions and sentences on various tax fraud, bankruptcy fraud, and money laundering charges in connection with the operation of seven second-hand stores around Portland, Oregon. Their appeal raises numerous issues relating to the sufficiency of the indictment, the suppression of statements, the sufficiency of the evidence, and the district court's sentencing determinations. In part, we must decide whether a defendant may still be prosecuted for non-coercive witness tampering under 18 U.S.C. § 1503, or whether that conduct now falls solely under 18 U.S.C. § 1512. We hold that § 1503 continues to cover such tampering. We have jurisdiction, 18 U.S.C. § 3741(a)(1) and 28 U.S.C. § 1294, and although we remand for resentencing as to Ford, we otherwise affirm.

I

Robert Ladum opened and operated seven second-hand stores in Portland, Oregon during the 1980's and early 1990's. The first store, The Hock Shop, later renamed Abe's, opened in 1983. The other stores were: Dave's Shop, opened in 1983; The Money Man, opened in 1985; Columbia Cash, opened in 1986; The Money Pit, opened in 1987; Union Cash, opened in 1987; and Division Cash, opened in 1988. Ladum concealed his ownership interests in these stores so he could avoid paying taxes on their income by using nominees who held themselves out as owners of the stores. The nominees would pretend to be the store owners by placing the title documents, business paperwork, and federal firearms licenses in their names. Nonetheless, Ladum would retain control of the nominee and the business. In meetings with nominees, Ladum discussed reporting of taxes and techniques to deal with law enforcement. Ladum told the nominees not to keep any records of income, not to report his cut on their tax returns, and to report only enough income to cover living expenses.

Echols Ford, Daniel Hong, Ronald Van Vliet, and James Weaver were nominees of different second-hand stores at various times. Ford, Hong, and Van Vliet filed tax returns as though they were the sole proprietors of the stores. All filed Schedule C's rather than K-1 forms and partnership returns that would have disclosed Ladum's interest. Additionally, these tax returns significantly understated income. The nominees had slightly different arrangements with Ladum, but typically, Ladum would provide start-up costs and inventory. After those costs were repaid, Ladum and the nominee would split net profits of the store, with Ladum receiving the larger share.

In an effort to thwart the IRS, Ladum instructed the nominees to be as obstructive as possible and to refuse to give information to officials. When they were approached by IRS agents, both Hong and Van Vliet falsely stated that they were the sole owners of their respective stores. Once Ladum became aware of the grand jury investigation in 1993, Ladum advised nominees to lie to the grand jury. He also approved of plans to alter records.

Between 1985 and 1988, Ladum acquired the real properties where Columbia Cash, The Money Man, The Money Pit, Union Cash, and Division Cash were located. With the help of Weaver, a part-time real estate

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agent, David Grigonis acted as the nominee for the real properties. Although Grigonis used Ladum's money to purchase the real properties, he placed title in his own name. On his tax returns, Grigonis claimed sole ownership of the real properties and all income and expenses associated with these locations. Ladum's tax returns never reflected any income or expenses from the second-hand stores nor the real properties.

Between 1987 and 1989, Ladum used over $375,000 in profits from the second-hand stores secretly to purchase and remodel the Wallowa Lake Lodge, a rustic hotel in Joseph, Oregon. Much of the purchase price was traced to cash that had passed through the hands of various nominees. Grigonis purportedly spent $78,800, Ford $14,584. None of these contributors received a refund of his investment when the lodge was sold in 1990.

In 1988, Ladum declared bankruptcy, omitting from his petitions the second-hand stores, the real property where they were located, and the Wallowa Lake Lodge. After Ladum received a discharge in bankruptcy in May 1990, both Ladum and Grigonis continued to hide the ownership of the stores by having nominees write rent checks to Grigonis who would then use the funds to make mortgage or contract payments on the properties housing those businesses. This arrangement perpetrated the fiction that Grigonis owned the stores.

In June 1995, the grand jury issued a second superseding indictment charging all defendants in Count 1 with conspiracy to defraud the United States by impeding, impairing, obstructing, and defeating the IRS in the ascertainment, computation, assessment, and collection of Ladum's income tax, by deceitful and dishonest means in violation of 18 U.S.C. § 371. Additionally, Ladum was charged with aiding and assisting in the preparation of false income tax returns, filing a false income tax return, obstruction of justice and aiding and abetting, bankruptcy fraud, money laundering, and forfeiture. Grigonis was charged with filing false income tax returns, making false statements, bankruptcy fraud, money laundering, and forfeiture. Weaver was charged with making a false statement, and obstruction of justice and aiding and abetting. Ford was charged with filing false income tax returns, and obstruction of justice and aiding and abetting. Hong and Van Vliet were both charged with filing a false income tax return and making a false statement.

Prior to trial, the court dismissed the false statement charges against Hong and Weaver. Additionally, the court granted Ford's motion for judgment of acquittal on the obstruction of justice charge. The jury then found all defendants guilty on the conspiracy charge. Ladum, Ford, Hong, and Van Vliet were found guilty of all other charges. Grigonis was convicted of bankruptcy fraud and money laundering but acquitted on charges of filing a false income tax return and making a false statement. Weaver was acquitted of obstruction of justice. The jury also voted to forfeit the properties held by Grigonis as nominee for Ladum.

II

Van Vliet argues that Count 16, which charges him with making a false statement in violation of 18 U.S.C. § 1001, should have been dismissed for failure to allege materiality. We review challenges to the sufficiency of an indictment de novo, United States v. Dischner, 974 F.2d 1502, 1518 (9th Cir.1992), and we reject Van Vliet's challenge.

Materiality is an essential element of a false statement charge under § 1001. United States v. Facchini, 874 F.2d 638, 641 (9th Cir.1989) (en banc). An indictment's failure to allege materiality, however, will not necessarily render the indictment insufficient. United States v. Oren, 893 F.2d 1057, 1063 (9th Cir.1990). "[A]n indictment need not allege the materiality of a false representation if the facts advanced by the pleader warrant the inference of materiality." Id. (quoting Dear Wing Jung v. United States, 312 F.2d 73, 75 (9th Cir.1962)). "A statement is considered material if it has the propensity to influence agency action...." Facchini, 874 F.2d at 643. Actual influence on agency action is not required; rather, "a court must consider whether a statement could, under some set of foreseeable circumstances,

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significantly affect an action by a federal department or agency." Id.

Count 16 of the indictment alleges that Van Vliet violated 18 U.S.C. § 1001 by:

willfully and knowingly mak[ing] and caus[ing] to be made false, fictitious and fraudulent statements and representations in a matter within the jurisdiction of a department or agency of the United States by telling IRS Special Agent Michael Maney that he had no partners and had been the sole owner of DIVISION CASH for two years since January 1988; whereas, as defendant ROBERT D. VAN VLIET then and there well knew and believed defendant ROBERT E. LADUM had an ownership interest in DIVISION CASH since it began operating in January 1988.

This raises an inference of materiality as Van Vliet's concealment of Ladum's ownership of the business could significantly affect the IRS's effort to monitor and verify Ladum's tax liability. See United States v. Carrier, 654 F.2d 559, 561-61 (9th Cir.1981) ("No" response to inspector who inquired whether traveller was...

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