U.S. v. Hutchison

• Decision Date: 19 May 1993
• Docket Number: 91-10598,Nos. 91-10225,s. 91-10225
• Citation: 22 F.3d 846
• Parties: 37 Fed. R. Evid. Serv. 1068 UNITED STATES of America, Plaintiff-Appellee, v. Brian HUTCHISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 846

22 F.3d 846

37 Fed. R. Evid. Serv. 1068

UNITED STATES of America, Plaintiff-Appellee, v. Brian HUTCHISON, Defendant-Appellant.

Nos. 91-10225, 91-10598.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 1992.

Decided Jan. 13, 1993.

As Amended May 4, 1993.

As Amended on Denial of Rehearing and Rehearing En Banc May

19, 1993.

Craig B. Mehrens, Phoenix, AZ, for defendant-appellant.

Daniel R. Drake, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before TANG, PREGERSON and ALARCON, Circuit Judges.

TANG, Circuit Judge.

Brian Hutchison, a citizen of Great Britain, obtained a $520,000 loan to refinance a home mortgage. After Hutchison failed to make any payments, Great American First Savings Bank (the Bank) foreclosed on the home. An indictment was issued for bank fraud, in violation of 18 U.S.C. Sec. 1344, and false and fraudulent representations made to the Bank in connection with the loan in violation of 18 U.S.C. Sec. 1014. Superseding indictments also charged Hutchison with false statements to the Internal Revenue Service (IRS) regarding an unrelated real estate transaction, in violation of 18 U.S.C. Sec. 1001 and 26 U.S.C. Sec. 7206(2). Hutchison appeals his conviction for the above violations, and the resulting sentence.

I. Speedy Trial

Upon motion of the Government, the district court continued the trial to allow the Government to take the deposition of the Bank of England, which had refused to send a representative to testify at trial. Hutchison claims that he was denied his right to a speedy trial, in violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161, et seq., Fed.R.Crim.P. 48(b), and the Sixth Amendment.

A. The Speedy Trial Act

Factual findings regarding the Speedy Trial Act are reviewed for clear error and questions of law concerning the application of the Act are reviewed de novo. United States v. Nash, 946 F.2d 679, 680 (9th Cir.1991).

Under the Speedy Trial Act, a defendant must be brought to trial within 70 days of his first appearance. However, certain delays result in "excludable time" not counted toward the 70 days, including delay based on a finding that the ends of justice outweigh the best interest of the public and the defendant in a speedy trial, pursuant to section 3161(h)(8)(A). The district court made such a finding.

The district court based its continuance on "specific factual circumstances," i.e., efforts of the Government to obtain the testimony of the witness in England, and continued the trial for "a specific period of time." See United States v. Jordan, 915 F.2d 563, 565 (9th Cir.1990) (delay must be based "on specific factual circumstances" and is proper "only if ordered for a specific period of time and justified on the record with reference to the factors enumerated in section 3161(h)(8)(B)") (quotation and emphasis omitted). At the hearing on the Government's motion to continue trial, the district court inquired into the section 3161(h)(8)(B) factors, and accepted the Government's assertion that the proceeding would be impossible without the foreign deposition. See United States v. Fielding, 645 F.2d 719, 722 (9th Cir.1981) ("A review of the transcript reveals a lengthy and searching inquiry by the trial judge as to the proprietary [sic] of the requested continuance."). The district court's finding that the three month continuance was necessary was not clearly erroneous.

Because we find that the continuance resulted in excludable time under section 3161(h)(8)(A), it is not necessary to reach the Government's argument that excludable time was also justified under section 3161(h)(3)(A), due to the unavailability of an essential witness.

B. Federal Rule of Criminal Procedure 48(b)

Hutchison next argues that the indictment should have been dismissed pursuant to Rule 48(b), Fed.R.Crim.P., for "unnecessary delay" in bringing him to trial. The district court's denial of a motion to dismiss under Rule 48(b) is reviewed for an abuse of discretion. United States v. Moore, 653 F.2d 384, 389 (9th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 680, 70 L.Ed.2d 646 (1981). "A Rule 48(b) dismissal should be imposed only in extreme circumstances," upon "prosecutorial misconduct and demonstrable prejudice or substantial [threat] thereof." United States v. Sears, Roebuck & Co., 877 F.2d 734, 737-38 (9th Cir.1989) (quotation omitted).

Hutchison failed to show even the possibility of prejudice from the delay. Hutchison argues that he needed to oversee his business affairs in England and was prohibited from seeing his home, family and friends there, but does not argue that the delay hampered his ability to present his defense in any way. The district court did not abuse its discretion by failing to dismiss under Fed.R.Crim.P. 48(b).

C. The Sixth Amendment

Because Hutchison has not demonstrated any possible prejudice to his defense resulting from the delay, and no presumption of prejudice arises because the delay was not prolonged, his Sixth Amendment claim also fails. See Doggett v. United States, --- U.S. ----, ----, 112 S.Ct. 2686, 2694, 120 L.Ed.2d 520 (1992); United States v. Shell, 974 F.2d 1035, 1036 (9th Cir.1992).

II. Amendment of the Indictment

The sufficiency of an indictment is reviewed de novo. United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983).

Count I of the second superseding indictment charged Hutchison with bank fraud by false and fraudulent pretenses, representations, and promises, in violation of 18 U.S.C. Sec. 1344. Seven specific instances of false and fraudulent acts were set forth in separate paragraphs in Count I, including allegations that Hutchison submitted false balance sheets and profit and loss accounts for himself and his companies, false 1983 and 1984 U.S. income tax returns, and false letters from the Bank of England in support of his loan application, that Hutchison falsely promised to repay the loan, and that he falsely told the Bank that he did not have funds available to bring the payments current upon default. These fraudulent acts were then alleged as separate violations of 18 U.S.C. Sec. 1014 (false statements to a financial institution) in Counts II-VIII.

One week before trial, the Government moved to strike pp 1-5 of Count I, and to dismiss Counts II-VI alleging that Hutchison had submitted the false and forged documents to obtain the loan; this was granted by the district court without prejudice on March 18, 1991.

A redacted version of the second superseding indictment was used at trial, alleging only that Hutchison promised to repay the loan when he did not intend to do so, and falsely told the Bank that he did not have funds available to keep the payments current. Hutchison argues that the use of the redacted indictment constituted an impermissible amendment of the indictment because the grand jury may not have returned the amended indictment without pp 1-5 of Count I and Counts II-VI.

In United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985), the Supreme Court clearly rejected Hutchison's argument. Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment. A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated "as useless averment" that "may be ignored."

Id. at 136, 105 S.Ct. at 1815 (citation omitted); accord United States v. Barany, 884 F.2d 1255, 1258 (9th Cir.1989) (following Miller, conviction of fraudulent scheme more limited in scope, but wholly included in scheme alleged in indictment does not violate rights), cert. denied, 493 U.S. 1034, 110 S.Ct. 755, 107 L.Ed.2d 771 (1990).

Hutchison does not claim that he was prejudicially surprised at trial by the absence of the stricken allegations, and the indictment was sufficient to allow Hutchison to plead it as a bar to subsequent prosecutions. None of the " 'notice' related concerns--which of course are among the important concerns underlying the requirement that criminal charges be set out in an indictment--would support a reversal." Miller, 471 U.S. at 135, 105 S.Ct. at 1814.

III. Motion for Judgment of Acquittal

To determine whether there was sufficient evidence to convict Hutchison, we decide whether any rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the Government. United States v. Cloud, 872 F.2d 846, 850 (9th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 561, 107 L.Ed.2d 556 (1989). Hutchison's legal arguments are reviewed de novo. United States v. Bonallo, 858 F.2d 1427, 1431 (9th Cir.1988).

In Count I, Hutchison was charged with bank fraud in violation of 18 U.S.C. Sec. 1344. To be convicted of bank fraud, the Government must prove that the defendant knowingly (1) engaged in a scheme to defraud a federally chartered or insured financial institution, or (2) participated in a scheme to obtain money under the custody or control of a federally chartered or insured financial institution by means of material, false statements or representations. Cloud, 872 F.2d at 850. In Counts II and III, Hutchison was charged with violations of 18 U.S.C. Sec. 1014, under which the Government is required to prove that Hutchison made a knowing, false, material statement to the bank for the purpose of influencing its action. See United States v. Phillips, 606 F.2d 884, 886 (9th Cir.1979) (false statements regarding social security number and birth date are material), cert. denied, 444 U.S. 1024, 100 S.Ct. 685, 62 L.Ed.2d 657 (1980).

Hutchison argues that the false statements or representations alleged in Counts I-III of the redacted indictment were not material. Because the home pledged as...