U.S. v. Parekh

• Decision Date: 28 February 1991
• Docket Number: No. 90-8332,90-8332
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vijay PAREKH, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 402

926 F.2d 402

UNITED STATES of America, Plaintiff-Appellee, v. Vijay PAREKH, Defendant-Appellant.

No. 90-8332

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 28, 1991.

Rehearing Denied March 28, 1991.

Stephen B. Edwards, Charles D. Craig, Austin, Tex., for defendant-appellant.

Dan H. Mills, and LeRoy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before JOHNSON, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Vijay Parekh stands convicted for his role in the improper efforts of a savings and loan association's officials to meet minimum net worth requirements imposed by the Federal Home Loan Bank Board (FHLBB). He asserts that insufficient evidence supports his convictions and that the prosecutor's purportedly improper comments mandate a new trial. Rejecting both of these claims, we affirm.

I.

In 1985, Lamar Savings Association (Lamar), a financial institution insured by the Federal Savings and Loan Insurance Corporation found it increasingly difficult to meet the minimum net worth requirements imposed by the FHLBB. As more of its borrowers failed to make loan payments, Lamar foreclosed on numerous real estate properties. When a financial institution such as Lamar repossesses such properties (labeled "REO," for "real estate owned"), the net worth requirement for that institution increases. The FHLBB requires an institution to increase its net worth by twenty per cent of the value of each REO on the books.

Lamar had extended a loan to Roy Moran, enabling him to construct Remington House Apartments (Remington House) in Austin. When Moran failed to make payments on his indebtedness, Lamar foreclosed, thereby increasing its net worth requirement. Because Lamar was already experiencing difficulties in meeting the FHLBB's mandates, it sought to sell Remington House and other REO properties in order to avoid regulatory intervention.

At this time, Parekh owned Excel Properties but had worked for Lamar from 1976 to 1981, rising to the title of vice-president. He and Stanley Adams, the principal owner and chairman of Lamar, had been acquainted since college in the 1950's. There is evidence in the record that Parekh indicated that he would "just do anything to help Stanley Adams out as far as purchasing other REO property that [Lamar] had."

Apparently acting on this inclination, Parekh and two others offered to buy Remington House from Lamar. Under their proposal, they would have assumed some personal liability for the loan. Lamar never responded to this offer. However, Reuben Coleman, another Lamar senior official, later contacted Parekh and asked him whether he wanted to own Remington House. Coleman instructed Parekh to fly to Houston the next day for the closing. Parekh knew neither the purchase price of the property nor the amount of the loan as he left for Houston; he found out the terms of the agreement at the closing.

Under those terms, Parekh had no personal obligation to repay the loan. According to the testimony of Merrick Leler, another former Lamar employee, Coleman calculated the sales price in such a way as to avoid a loss to Lamar (which would reduce its net worth). Lamar officials credited Lamar with a one-percent origination fee for the Remington House loan transaction, further increasing its net worth. Instead of recording this amount as a deferred gain, Lamar backdated it as a current gain for the third quarter of 1985. At the closing, Phoenix Venture Group, another of Parekh's companies, received a $78,750 payment. After initially asserting that that payment related to another debt, Parekh eventually admitted that the sum was an inducement to entering into the Remington House transaction.

Parekh managed the Remington House property for less than a year. Remington House employees testified that Lamar did not participate in the daily operations of the property and that Parekh actively managed the complex. However, record evidence indicates that the accounting system in place was extremely poor. Furthermore, other witnesses contradicted the Remington House employees' testimony. When a large amount of interest came due on the loan, Parekh relinquished title to Remington House. Lamar negotiated directly with the buyer, Mounzer Hourani, without Parekh's participation. Coleman instructed Parekh to travel to Houston for the closing. Parekh did not know the identity of the buyer until he arrived. He received $331,000 from Remington House funds before relinquishing the property.

Faced with the possibility of regulatory intervention, Lamar took other steps to reduce its net worth requirement. More specifically, it made similar arrangements with Sid Terry temporarily to hold title to two other real estate properties, Stone Creek Apartments and Parklane Apartments. Parekh apparently concedes that these agreements were shams designed to get REO property off of Lamar's books.

II.

A grand jury issued a four-count indictment accusing Parekh of a variety of offenses for his involvement in Lamar's scheme to reduce artificially its net worth requirement. Count one charged Parekh with conspiracy under 18 U.S.C. Sec. 371, alleging that Parekh and others conspired (1) to misapply the funds of a savings and loan association in violation of 18 U.S.C. Sec. 657; (2) to make false entries into the records of a savings and loan in violation of 18 U.S.C. Sec. 1006; and (3) to make false statements to the FHLBB in violation of 18 U.S.C. Sec. 1001. Counts two, three, and four accused Parekh of aiding and abetting others in their violations of the same three statutory provisions, respectively, in violation of 18 U.S.C. Sec. 2. A jury convicted Parekh on all counts.

III.

Parekh alleges that the evidence does not sufficiently support either the conspiracy or aiding and abetting convictions. A defendant seeking reversal of his convictions on sufficiency of the evidence grounds faces an imposing standard of review: "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979) (footnote omitted). The Court continued, "[T]his inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' " Id. at 318-19, 99 S.Ct. at 2788-89 (quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966) (emphasis added)). ¹ Because we conclude that a reasonable trier of fact could have found Parekh guilty beyond a reasonable doubt, we affirm the convictions.

The indictment charged Parekh with conspiring ² with others to (1) misapply Lamar's funds ³; (2) make false entries in Lamar's records ⁴; and (3) make false statements to the FHLBB. ⁵ To establish that Parekh is guilty of conspiracy, the government was required to prove the following elements beyond a reasonable doubt: "(1) that two or more people agreed to pursue an unlawful objective together; (2) that the defendant voluntarily agreed to join the conspiracy; and (3) that one of the members of the conspiracy performed an overt act to further the objectives of the conspiracy." United States v. Tullos, 868 F.2d 689, 693 (5th Cir.) (citing United States v. Davis, 810 F.2d 474, 476-77 (5th Cir.1987)), cert. denied, 490 U.S. 1112, 109 S.Ct. 3171, 104 L.Ed.2d 1033 (1989).

The indictment also charged Parekh with aiding and abetting the commission of the three offenses listed above. ⁶ To convict a defendant for aiding and abetting the commission of a crime, the government must prove that the defendant " 'associated with a criminal venture, participated in the venture, and sought by his action to make the venture succeed.' " United States v. Manotas-Mejia, 824 F.2d 360, 367 (5th Cir.) (quoting United States v. Holcomb, 797 F.2d 1320, 1328 (5th Cir.1986)), cert. denied, 484 U.S. 957, 108 S.Ct. 354, 98 L.Ed.2d 379 (1987).

Parekh correctly observes that the propriety of these convictions depends upon whether there was evidence sufficient to permit a rational jury to conclude that Lamar's loan to him was a "sham." We conclude that the government did present sufficient evidence.

Parekh's utter lack of knowledge of the terms of either the initial sale to him of Remington House or the subsequent sale to Hourani provided the jury a basis for determining that the sale and accompanying loan were designed for the sole purpose of artificially reducing Lamar's net worth requirements. Parekh's stated desire to help Adams remove REO property from Lamar's books adds credence to that conclusion.

Lamar officials' references to their arrangement with Parekh as a "temporary deal" or "temporary fix" further supports an inference that the loan was a sham, as does Parekh's statement to Charles Cheaney (one of Hourani's employees) that Parekh was merely a "caretaker" for Remington House. Phoenix Venture Group's receipt of $78,750 at the first closing also constitutes evidence that the loan to Parekh was less than legitimate; Parekh's contradictory statements concerning the money he received corroborates that inference. Lamar's similar treatment of the Stone Creek and Parklane properties provided the jury with an additional foundation for its conclusion.

Evidence tending to show that the loan was legitimate is insufficient to require a reversal. Under the governing standard of review, we must view the evidence in the light most favorable to the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). More specifically, the fact that Parekh may have participated actively in the management of Remington House does not render...