U.S. v. Allen
| Decision Date | 03 July 1996 |
| Docket Number | No. 94-30393,94-30393 |
| Parties | 96 Cal. Daily Op. Serv. 5009, 96 Daily Journal D.A.R. 8048 UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene ALLEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John E. Storkel, Storkel & Grefenson, Salem, OR, for defendant-appellant.
Sean B. Hoar, Assistant United States Attorney, Eugene, OR, for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. CR-93-60055-1-MRH.
Before: SCHROEDER, REINHARDT, and FERNANDEZ, Circuit Judges.
In June of 1988, Housing U.S.A., a mobile home dealership in Oregon, hired Edward Allen to sell mobile homes. Allen quickly became a manager. He completed purchase agreements with customers, helped them obtain financing, and submitted their financial information, including purchase agreements and credit applications, to Western Bank. In order to obtain financing from the bank, a mobile home customer had to make a down payment equal to twenty percent of the purchase price. Many of Allen's customers, however, could not satisfy this requirement. Consequently, he falsified purchase agreements to show a higher down payment. He also falsified credit applications for certain customers, so that they showed higher asset holdings.
Additionally, Allen made false statements on personal credit and loan applications submitted to Western Bank and Southern Credit Union. He falsely represented his birth date, social security number and bankruptcy status.
On June 28, 1993, Allen was arraigned in federal court on a fifty-two count indictment charging him with violations of 18 U.S.C. § 1014. On December 15, 1993, a grand jury returned a forty-seven count superseding indictment against Allen. On January 31, 1994, after trial by jury, Allen was found guilty on thirty-five counts. He received a total prison sentence of forty-six months.
Allen contends that the district court erred in denying his motion for acquittal because the government failed to prove that Western Bank and Southern Credit Union were federally insured at the time of his fraudulent conduct. He asserts that there was no evidence of insured status as of the time the fraudulent statements were made.
We review the district court's denial of a motion for acquittal in the same manner as a challenge to the sufficiency of the evidence. United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989). Consequently, we review the evidence presented against Allen in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. James, 987 F.2d 648, 650 (9th Cir.1993); Shirley, 884 F.2d at 1134 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)(emphasis in original)).
A. The Southern Oregon Federal Credit Union
There was no direct testimony of the credit union's insured status as of the time the fraud was committed. The government offers three arguments in support of its position that the evidence was nevertheless sufficient. First, it argues that jurors could infer the credit union's federally insured status from the title, which includes the word "Federal." This court, however, rejected this very argument in James, 987 F.2d at 649-50, where we held that the "names of the banks," which included Home Federal Savings, were not in themselves sufficient to establish federally-insured status under 18 U.S.C. § 1014.
Second, the government argues that Southern Credit Union official Sunni Boyd's trial testimony establishes that the credit union was federally insured in 1988-89. It does not, because the testimony did not relate to the relevant time period. During the government's direct examination of Ms. Boyd, the following exchange took place:
Q. (By Mr. Hoar) And Ms. Boyd, is the Southern Oregon Federal Credit Union insured by the National Credit Union Administration?
A. Yes, it is.
Q. So it's a federally-insured credit union?
A. Yes.
The problem with this testimony is that it took place during trial in January, 1994. Boyd answered the prosecutor's questions in the present tense. Thus, while her testimony may establish the credit union's insurance status in 1994, it does not establish that the credit union was insured when Allen made his fraudulent statements in 1988-89.
The government responds by arguing that the above exchange took place during questioning about a 1989 transaction involving defendant Allen, and that during the exchange the jury had before it an exhibit documenting the 1989 transaction; therefore, jurors could reasonably infer that the credit union was federally insured in 1989. We reject the government's argument. Boyd's present-tense answers simply do not support the inference that Southern Credit Union was federally insured at the time of the offenses, some four and a half years earlier.
Third, the government points to testimony by Kenneth Agee, who was employed by Housing U.S.A.'s parent company between 1987 and 1990, which includes the period of Allen's fraudulent behavior. Agee, whose testimony was preceded by several days of testimony from other witnesses about mobile home loans from Western Bank and the Southern Federal Credit Union, testified to the following:
Q. With regard to these ads, isn't it true that Shadow Ranch actually sought financing through companies that weren't--that were non-bank institutions, like Greentree, WESAV, nonfederally-insured agencies or companies? Is that right?
A. Yes, that's correct.
Q. And so with regard to down payments with some of those other companies, they may not have the same requirements as a federally insured institution? Correct?
Agee's testimony is not sufficient. While he may have meant to distinguish Southern Credit Union from his examples of non-insured financial institutions, he never referred specifically to the Southern Credit Union. He similarly makes no mention of whether Edward Allen's transactions involved insured institutions. Agee's testimony, thus, falls short of the quantum of evidence necessary to prove an element of a crime.
We must accordingly vacate Allen's conviction on counts twenty-one and forty-seven, the only counts involving the credit union.
There was no direct testimony of insured status of the bank either. The government relies on three pieces of evidence in opposition to the motion for acquittal regarding counts involving Western Bank: testimony from Western Bank official Kenneth Williams, the testimony from Kenneth Agee excerpted above, and two exhibits containing the words "member FDIC." Unlike the counts involving Southern Credit Union, the government has proved, if only by a thin margin, Western Bank's insurance status.
Neither Williams' nor Agee's testimony offers the government any assistance. Williams' testimony about Western Bank's insurance status suffers from precisely the same defect as Boyd's testimony. Agee's testimony, as discussed above, is equally unhelpful.
Thus, the government's case rests on exhibits 6e and 16d. On exhibit 6e, a document entitled Individual Financial Statement and relating to a loan transaction on November 1, 1988, the words "HEAD OFFICE COOS BAY OREGON MEMBER FDIC," as we view the document, clearly and legibly appear next to the Western Bank insignia at the top of the document. On exhibit 16d, a Western Bank loan employment verification form dated March 2, the words "Member FDIC" appear at the bottom of the page. While this document does not contain a year date, one can infer from the information contained therein that the form was completed in 1989. These two exhibits constitute the only evidence that Western Bank was federally insured at the time of Allen's fraudulent conduct in 1988-89. When we view these exhibits in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Western Bank was federally insured at the time of Allen's fraudulent behavior. Therefore, the district court did not err
in denying the motion for acquittal on the thirty-three counts involving Western Bank.
Allen claims that the district court erred...
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