U.S. v. Alston, 77-2050

Citation609 F.2d 531,197 U.S.App.D.C. 276
Decision Date22 October 1979
Docket NumberNo. 77-2050,77-2050
PartiesUNITED STATES of America v. Eddie Lee ALSTON a/k/a Eddie Lee, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Allan Abbot Tuttle, Washington, D. C. (appointed by this Court), for appellant.

Whitney M. Adams, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George, Brian W. Shaughnessy and Raymond Banoun, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before BAZELON, Senior Circuit Judge, and TUTTLE, * Senior Circuit Judge for the Fifth Circuit, and ROBB, Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

Dissenting opinion filed by Circuit Judge ROBB.

BAZELON, Senior Circuit Judge:

Appellant was convicted by a jury on all counts of a thirty-five count indictment charging violations of both federal and District of Columbia statutes. The offenses stemmed from a scheme in which appellant would be paid to have an accomplice delete adverse information from, and add fictitious favorable information to, the computerized credit files of individuals who had difficulty obtaining credit. The altered credit records would then be sent for approval to various lending institutions, ultimately allowing these individuals to purchase automobiles or other items. The indictment, which was based on only eight credit transactions, included one count of conspiracy, 1 twenty-five counts of mail 2 and wire 3 fraud (counts 2-21 and 22-26), three counts of false statements to a federally insured bank (counts 27-29), 4 and six counts of D.C. felony false pretenses (counts 30-35). 5

Certain of the multiple convictions under both federal and local law are contrary to congressional intent, requiring vacation of two or four convictions. Furthermore, the mailings at issue here cannot sustain convictions under the mail fraud statute because they occurred after the scheme to defraud had reached fruition. Finally, we vacate the sentences imposed on counts 27 through 29 of the indictment because they exceed the statutory maximum, and we remand for resentencing in accordance with 18 U.S.C. § 1014 and this opinion. 6 The remainder of the judgment of the District Court is affirmed. 7


Each fraudulent credit transaction gave rise to multiple charges against Alston. In one transaction, an altered credit application and an altered credit report were sent by teletype (counts 13 and 15, wire fraud) to a federally insured savings bank (count 27, federal false statements), the applicant obtained an automobile loan from the bank (count 34, D.C. false pretenses), and the bank notified the dealer about the loan by telephone (count 20, wire fraud). In a second transaction, an individual applied for a home improvement loan from a federally insured bank (count 28, federal false statements), the credit bureau telecopied an altered credit record to the bank (count 14 This case raises problems that flow from an overkill of charges against a defendant. Pyramiding charges is particularly troublesome in the District of Columbia, where local and federal offenses can be joined in one indictment pursuant to 11 D.C.Code § 502 (1973).

wire fraud), and the applicant obtained the loan (count 33, D.C. false pretenses). In four other transactions, applicants obtained automobile loans from a finance company (counts 30, 31, 32 and 35, D.C. false pretenses); in these transactions, wire fraud was charged for each time the automobile dealer telecopied a fraudulent application to the finance company (counts 2, 6, 9 and 11), the credit bureau telecopied an altered credit record to the lender (counts 3, 7, 10, 12 and 16), and the lender telephoned notice of loan approval to the dealer (counts 17, 18, 19 and 21). Mail fraud was charged each time the dealer mailed a completed sales contract to the lender (counts 22 through 26). Two remaining transactions, which involved unsuccessful attempts to obtain loans, triggered charges of federal false statements (count 29) and wire fraud (counts 4, 5, and 8).

Appellant argues that the multiple convictions under federal and local law denied him equal protection of the laws. Subsequent to the submission of this case for decision, this court has clarified the method by which we will analyze challenges to convictions under both federal and local law when the acts complained of arise within essentially the same transaction. 8 As explained in United States v. Dorsey, 9 the court must determine whether Congress intended to authorize multiple punishments under the particular statutes in question, and if so, whether the multiple punishments are constitutional. Therefore, we first consider whether Congress intended to impose multiple punishments for a single fraudulent transaction that violates both the D.C. false pretenses statute and either the federal false statements statute or the federal mail and wire fraud statutes. Because of the similar purposes underlying the false pretenses and false statements statutes, we think that Congress did not intend multiple punishments in the circumstances presented here. On the other hand, we do discern a congressional intent to impose multiple punishments when an act or transaction violates both the false pretenses and the mail or wire fraud statutes.


The D.C. false pretenses statute, 22 D.C.Code § 1301 (1973), provides that "(w)hoever, by any false pretense, with intent to defraud, obtains from any person any service or anything of value," shall be subjected to imprisonment for up to three years. The federal false statements statute,18 U.S.C. § 1014 (1976), provides that "(w)hoever knowingly makes any false statement or report, . . . for the purpose of influencing in any way the action of . . . any (federally insured) bank" can be imprisoned for not more than two years.

Congress clearly defined separate offenses in each statute: "each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); See Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Conviction on the local charge of false pretenses requires proof of the following elements: (1) a false representation; (2) knowledge of the falsity; (3) intent to defraud; (4) reliance by the defrauded party; and (5) obtaining something of value as a result of the false representation. 10 Conviction on the federal charge of false statements requires proof of (1) a material false statement, (2) to a federally insured financial On their face, the local and federal statutes address different interests. The local statute focuses on the loss of anything of value, regardless of the identity of the victim. The federal statute is designed to protect specific financial institutions from fraud "in connection with loans or other similar transactions." 12 The federal offense is complete when the false statement is made; it does not require that the bank actually part with something of value. 13

institution, (3) for the purpose of influencing the action of the institution. 11

Yet some fraudulent loan applications might result in the grant of a loan, as occurred here, 14 resulting in separate criminal charges based on the same act or acts. In this case, proof of the federal false statements charge coincided with proof of the D.C. false pretenses charge, except for the element of Obtaining the loan: the "false Statement" knowingly made was a "false Representation" knowingly made; the "purpose of influencing the action" of the bank was the "intent to defraud" the bank to obtain a loan; and a Bank having federally insured deposits was the "defrauded party" acting in reliance on the Fraudulent application. Thus, in the context of this case the two counts allege essentially the same offense. 15 Moreover, the three year maximum sentence under the D.C. false pretenses statute applicable when a loan is actually obtained appears analogous to an enhancement of the two years maximum sentence under the federal false statements statute applicable when a false statement is made in an attempt to obtain a loan.

"(U)nless the intent of Congress is stated 'clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.' " 16 Since we find no such statement here, we apply "a corollary of the rule of lenity, an outgrowth of our reluctance to . . . multiply punishments absent a clear and definite legislative directive." Simpson v. United States, 435 U.S. 6, 15-16, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978). Accordingly, we direct vacation of the convictions under either counts 27 and 28 (false statements) or counts 33 and 34 (false pretenses) of the renumbered indictment, and appropriate resentencing of appellant.


We turn now to the multiple punishments under the federal mail or wire fraud statutes and the D.C. false pretenses statute. The mail 17 and wire 18 fraud statutes Under the analytical framework established in United States v. Dorsey, supra, we next consider a constitutional inquiry:

                prescribe a penalty for Each use 19 of the mails or wires "for the purpose of executing" a scheme to defraud or to obtain money or property by means of false pretenses.  The focus of each statute is upon the misuse of the instrumentality of communication.  20 The interest to be protected under these federal statutes is clearly distinct from the property interest safeguarded by the local statute.  Several courts have found that Congress intended to authorize multiple punishment under both the mail or wire fraud statute and other federal fraud statutes.  21 We conclude that Congress likewise intended violations of the mail or wire fraud statute to be separately punishable from violations of the local false pretenses statute.

(E)ven if Congress intends...

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