U.S. v. Mayberry

• Citation: 913 F.2d 719
• Decision Date: 04 September 1990
• Docket Number: No. 88-3191,88-3191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dirk MAYBERRY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 719

913 F.2d 719

UNITED STATES of America, Plaintiff-Appellee, v. Dirk MAYBERRY, Defendant-Appellant.

No. 88-3191.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1989.

Decided Sept. 4, 1990.

Terrence Kellogg, Seattle, Wash., for defendant-appellant.

Harry J. McCarthy, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before CANBY, WIGGINS and FERNANDEZ, Circuit Judges.

CANBY, Circuit Judge:

Following a bench trial, Mayberry was convicted on one count of conspiring to defraud the United States, in violation of 18 U.S.C. Sec. 371, and on nineteen counts of causing false material statements to be made in a matter under the jurisdiction of an agency of the United States, in violation of 18 U.S.C. Secs. 1001 and 1002. Mayberry appeals on the grounds of insufficiency of evidence and multiplicity of counts. We affirm in part, reverse in part, and remand for resentencing.

I

Dirk Martin Mayberry, a real estate broker, arranged nine separate transactions in which his clients purchased property by means of federally insured mortgages. In order to qualify for assistance, Mayberry's clients filed applications and supporting documents with the Department of Housing and Urban Development ("HUD"). Much of the information provided to HUD was either false or misleading. For example, actual down payments made by some purchasers were considerably smaller than was represented to HUD; money said to have been paid in settlement costs had in fact never changed hands; and cash assets reported by purchasers included substantial sums that Mayberry deposited into the purchasers' accounts for very brief periods. Operating on the information supplied by the purchasers, HUD approved the applications and insured the mortgage financing. When the transactions closed, Mayberry earned commissions and other fees. Subsequently, several purchasers defaulted on their mortgage payments; foreclosure followed, and HUD assumed repayment of the loans.

A grand jury indictment alleged that information provided to HUD by the mortgagors was false, thereby rendering the applications fraudulent, and charged Mayberry with actively encouraging and participating in the fraud. The district court convicted Mayberry on all counts relating to seven of the nine transactions, and acquitted him on those relating to the other two.

II

Mayberry contends that the evidence introduced at trial was insufficient to establish that the statements at issue were false and material and that he aided and abetted purchasers in making or using such statements. ¹ On this appeal, we must determine "whether a reasonable [trier of fact], after viewing the evidence in the light most favorable to the government, could have found [Mayberry] guilty beyond a reasonable doubt of each essential element of the crime[s] charged." United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989); see also United States v. Spears, 631 F.2d 114, 117 (9th Cir.1980) (noting that appellate inquiry is the same for bench and jury trials). Our inquiry must also show deference to the trial court's assessments of witness credibility. See United States v. Hodges, 770 F.2d 1475, 1478 (9th Cir.1985) (describing determinations of credibility as "generally immune from appellate review"). Having reviewed the record below with these standards in mind, we reverse the convictions on four counts and affirm the remainder.

A. Falsity.

Allegedly false statements made in connection with purchases by Christine Meling and Lee Johnson served as the basis for seven counts on which Mayberry was convicted. The evidence adduced at trial was sufficient to establish that some of these statements were false, and insufficient to establish that others were false.

Meling stated on her Mortgagor's Certificate that she had paid all charges listed in the Settlement Statement from her own funds; the Settlement Statement represented that she had paid $2600. ² Meling testified that in fact she had paid a total of $1600 at closing. This testimony, uncontroverted by Mayberry or any other witness, was sufficient to establish the falsity of the Mortgagor's Certificate.

Meling also stated on her HUD application that she had $5700 in cash assets. ³ At trial, she testified that her assets were in truth far less; she explained that Mayberry had deposited $5000 into her savings account for a 24-hour period--just long enough to affect the amount shown on a verification form filed by her bank. Mayberry asserted at trial that the $5000 represented money Meling had invested with him. Although Meling admitted that the funds "could" have been those she had earlier given to Mayberry, she also said that she knew she would return the $5000 to Mayberry immediately after the bank registered the deposit. Her testimony provided sufficient evidence of the falsity of the asset figure she listed. Clearly, she did not have cash assets of $5700, as shown on the HUD application. Even if Mayberry's "previous investment" explanation (about which the district court expressed some skepticism) is true, the fact remains that the $5000 Mayberry deposited in Meling's account did not represent a cash asset of Meling's. Neither Mayberry nor Meling had any expectation that Meling could have chosen to retain the $5000 after Mayberry deposited it. ⁴

To support her application, Meling requested that her bank verify the amount of money in her account; the bank responded by sending a form stating that she had $5700. ⁵ We agree with Mayberry that the government failed to establish that this form "falsely represented that the checking account of Christine Meling ... contained money belonging to Christine Meling in the amount of ... ($5,557.91)," as alleged in the indictment. The document in question contained no representation at all concerning the ownership of the money; it simply indicated the balance in Meling's account. At trial, there was no evidence whatsoever to suggest that the balance was not precisely what the bank reported on the verification form. ⁶ Thus, the essential element of falsity could not have been proved, and the conviction on this count must be reversed. ⁷

Johnson purchased two properties, one on 55th Avenue and one on Garden Street, in a "package deal." He filed HUD documents stating that he had paid approximately $4500 as a down payment for the 55th Avenue house, and that he covered all settlement charges and fees out of his own funds. ⁸ At trial, however, Johnson testified that he paid a cash total of $3000 at settlement for both properties. Mayberry, who was the seller of the 55th Avenue property, claimed that he had owed Johnson money from a previous real estate deal, and considered Johnson's corresponding "credit" to be part of the charges and fees paid at settlement. Whether in fact the satisfaction of Mayberry's previous debt accounted for a portion of Johnson's deposit is a close question. Although both Mayberry and Johnson testified that such an arrangement existed, ⁹ other evidence tended to disprove their story. For example, on his HUD application, Johnson neither disclosed the debt as an asset nor explained how it accounted for precisely the sum necessary for the down payment. In addition, Johnson did not mention this aspect of the transaction to investigators or to the grand jury, and was less than entirely forthcoming about it even during his trial testimony. These circumstances led the district court to doubt the credibility of Johnson's and Mayberry's testimony. In light of the conflicting evidence and our general deference to the trial court's assessment of credibility, we affirm the judgment on these counts. ¹⁰

Johnson also filed a HUD Settlement Statement on which he claimed to have paid $2273 as a deposit for the Garden Street property. ¹¹ The only trial evidence relevant to this claim was the testimony by Johnson and Mayberry that Johnson paid $3000 in cash for both the 55th Avenue and Garden Street houses. While that evidence may have supported a finding that Johnson did not actually pay the reported $4500 deposit on the 55th Avenue property, it does not support the finding that he did not pay the reported $2273 on Garden Street. The cash paid was more than sufficient to cover the Garden Street deposit. Because there was no evidence that Johnson did not pay that particular deposit, the statement at issue could not have been proven false, and the conviction on this count must be reversed.

Finally, Johnson stated on his HUD application that he intended to reside at the Garden Street house. ¹² Although both Johnson and Mayberry testified at trial that Johnson initially intended to occupy the property and later changed his mind, Johnson had told the grand jury that he never intended to occupy it. Acknowledging this inconsistency, and allowing for the trial court's determination of credibility, we conclude that the record provides sufficient evidence that the statement of intent was in fact false.

B. Materiality.

Mayberry contends also that the government did not introduce sufficient evidence that false representations about assets, down payments, settlement fees and intentions to occupy were material. ¹³ He argues that HUD's decision to approve the mortgage applications would not have been different had the purchasers described the financial circumstances more accurately. Speculation about how HUD might have responded to truthful information, however, is irrelevant; that HUD may not have relied upon the statements does not undermine their materiality under Sec. 1001. See United States v. Facchini, 874 F.2d 638, 643 (9th Cir.1989) (en banc).

To satisfy the materiality requirement, all the government needed to show was that the false statements had the propensity or capacity to influence or affect HUD's decision. See id. The...