U.S. v. Storm
| Citation | 36 F.3d 1289 |
| Decision Date | 19 October 1994 |
| Docket Number | No. 93-1556,93-1556 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Russell STORM, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Timothy Crooks, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Fort Worth, TX, for appellant.
Christopher A. Curtis, John Bradford, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Fort Worth, TX, for appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
Appellant David Russell Storm (Storm) was convicted of conspiracy to commit mail fraud and equity skimming and the substantive offenses of mail fraud and equity skimming. Storm argues that the district court erred in denying his motions for continuance in violation of the Speedy Trial Act, refusing to submit requested jury instructions on good faith, and assessing a two-level increase in his offense level for obstruction of justice based on a finding of perjury. Finding no reversible error, we affirm.
From September 1987 to February 1989, Storm and his codefendant Doug Christianson (Christianson) purchased several dwellings in the Northern District of Texas. At the time of purchase, each of those dwellings was subject to a loan secured by a mortgage or deed of trust insured, guaranteed or held by the Secretary of Housing and Urban Development (HUD) or by the Veterans' Administration (VA). The mortgages were assumable and or transferable to Storm as a purchaser of the dwellings. Storm signed the purchase agreements and deeds on those properties in which he agreed to assume and make payments.
Together, Storm and Christianson rented the homes for significantly less than the mortgage payments. 1 Storm and Christianson caused the renters to mail their checks to a post office box Storm previously had rented in Kennedale, Texas. Using Christianson's checking account, Storm cashed rent checks. The rent proceeds were not applied toward the mortgage obligations in any notable amount, but rather, they were applied for the personal use of Storm and Christianson. Although Storm received notices that his mortgages were delinquent, Storm failed to make the required payments. Consequently, each of the rental properties were foreclosed.
On April 14, 1992, at Christianson's residence, an agent of HUD interviewed Storm regarding the above-cited events. Storm admitted his culpability in the equity skimming scheme. He also implicated Christianson as the leader and instigator. The HUD agent set forth Storm's confession in a written memorandum. The next day, Storm executed an affidavit in which he admitted to entering into several assumption agreements; however, contrary to his earlier statements, he did not admit any culpability and asserted that he "believed that [he] could sell these homes by finding a purchaser who could not qualify for conventional real estate financing who would assume the unpaid mortgages." In that same affidavit, Storm denied that Christianson had any involvement in the real estate scheme.
On November 4, 1992, Storm and Christianson were charged by indictment with one count of conspiracy to commit mail fraud and equity skimming in violation of 18 U.S.C. Sec. 371, twelve counts of mail fraud in violation of 18 U.S.C. Sec. 1341, and one count of equity skimming in violation of 12 U.S.C. Sec. 1709-2. On February 4, 1993, Storm and Christianson first appeared before a magistrate judge, both represented by counsel William Nelson. Nelson's representation of Storm was limited to the initial appearance that day. The record reflects that Nelson was to notify the court at a later date whether he would continue to represent "one, both, or any of the def[endant]s."
On February 12, 1993, Storm and Christianson, both represented by Nelson, appeared before the district court for arraignment on the indictment, and entered pleas of not guilty. At that time, the court scheduled the trial date for March 15, 1993, and further, set a hearing for the next week to determine whether counsel would be allowed to represent both defendants due to a potential conflict of interest.
On February 19, 1993, the court held a hearing and determined that Nelson could not represent both defendants. The court appointed the Federal Public Defender to represent Storm, and on that same day, Storm appeared before the court with appointed counsel, Timothy Henry. Counsel orally requested a continuance based on the Speedy Trial Act, asserting that the March 15th trial date would be in violation of the 30 day-requirement which permits counsel adequate time to prepare for trial. The trial court disagreed, stating that the 30-day period runs from the defendant's first appearance before the court with counsel, and Storm's first appearance with counsel was more than 30 days prior to the trial date.
On March 1, 1993, counsel filed a written motion for a continuance, asserting that he needed more time to prepare for trial and that the 30-day requirement of the Speedy Trial Act would be violated. The government did not oppose the motion, citing the fact that court-appointed counsel first appeared with Storm on February 19, 1993. The court denied that motion. A week later, counsel filed a second motion for continuance, claiming, among other things, that forcing Storm to trial on March 15 would violate the Speedy Trial Act. The government opposed that motion, and the district court denied it.
At trial, Storm testified as a witness for Christianson. Specifically, Storm testified that Christianson "did the negotiation for [him], and that was all [Christianson] did." Storm testified that Christianson was unaware that he failed to make the mortgage payments. Storm did not tell Christianson of the delinquent payments because he "didn't want to look like a failure." Storm explained his previous contrary statements to the HUD agent by stating that he falsely put the blame on Christianson to direct the investigation away from himself. Storm defended his actions, testifying that he was a novice in the real estate business and that he had no intent to defraud when he engaged in the transactions at issue.
The district court refused to submit Storm's requested jury instructions on good faith. The jury found Storm and Christianson guilty as charged in the indictment. The Presentence Report (PSR) recommended a two-level enhancement of Storm's offense level for obstruction of justice based on Storm's testimony at trial. The PSR found that "[e]vidence showed that the defendant testified untruthfully at his trial concerning a material fact." The district court overruled Storm's objections, and adopted the PSR, assessing a two-level increase for obstruction of justice. The district court found that Storm had committed perjury during the investigation and prosecution of his offense regarding Christianson's involvement in the scheme. The court found that the testimony was material and that it was done with willful intent rather than as a result of confusion, mistake, or false memory. The court sentenced Storm to 23 months imprisonment on each of the 14 counts, to run concurrently, and a two-year term of supervised release.
Storm contends that the district court's denial of his motion for continuance violated the 30-day rule of 18 U.S.C. Sec. 3161(c)(2) of the Speedy Trial Act. Section 3161(c)(2) provides as follows:
Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.
(emphasis added). The facts underlying a ruling involving the Speedy Trial Act are reviewed for clear error, and the legal conclusions of the court are reviewed de novo. United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir.1991).
As previously set forth, on February 12, 1993, Storm and Christianson, both represented by Nelson, appeared before the district court for arraignment and entered pleas of not guilty. The court scheduled the trial for March 15, and set a hearing for February 19, 1993, to determine whether counsel's dual representation constituted a potential conflict of interest. Subsequently, at the February 19th hearing, the court determined Nelson could not represent both Storm and Christianson and appointed the Federal Public Defender to represent Storm. Storm appeared before the court that day with his appointed counsel.
Storm argues that he first appeared through counsel within the meaning of Sec. 3161(c)(2) on February 19. He therefore contends that because his trial commenced on March 15 (less than 30 days later), section 3161(c)(2) was violated.
In United States v. Daly, 716 F.2d 1499, 1505 (9th Cir.1983), cert. dismissed, 465 U.S. 1075, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984), the Ninth Circuit held "that the 30-day period begins to run when an attorney appears on a defendant's behalf after the indictment or information has been filed, unless there is an indication that the attorney is appearing only for a limited purpose and will not further represent that defendant at trial." The Court cited the legislative history of Sec. 3161(c)(2) and opined that it "indicates the provision was meant to guarantee a minimum period of thirty days for the preparation of the defense." Id. at 1504-05 (). 2
Additionally, in United States v. Bigler, 810 F.2d 1317, 1321-22 (5th Cir.), cert. denied, 484 U.S. 842, 108 S.Ct. 130, 98 L.Ed.2d 88 (1987), this Court discussed the 30-day requirement in the context of deciding whether that period could be excluded from the...
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