U.S. v. Bales

Decision Date18 March 1987
Docket NumberNo. 86-5646,86-5646
Citation813 F.2d 1289
Parties22 Fed. R. Evid. Serv. 1273 UNITED STATES of America, Appellee, v. Robert E. BALES, a/k/a Bob Bailes, a/k/a Robert E. Bailes, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Sheila McGough, Alexandria, Va., on brief, for appellant.

Clarence Holland Albright, Jr., Asst. U.S. Atty., Arlington, Va., (Henry E. Hudson, U.S. Atty., Kenneth E. Melson, Asst. U.S. Atty., Arlington, Va., on brief), for appellee.

Before WIDENER and ERVIN, Circuit Judges, and BOYLE, District Judge for the Eastern District of North Carolina, sitting by designation.

ERVIN, Circuit Judge:

Robert Bales 1 made three too many trips to the bank. This appeal arises from Bales' convictions for bank fraud, making false statements to a bank, and falsely representing his social security number. On appeal, Bales attacks, among other things: the sufficiency of the evidence to convict him; the legality of a search of his car; the district court's refusal to allow certain defense witnesses to testify; and the constitutionality of 42 U.S.C.A. Sec. 408(g) (West 1976), which makes false representation of one's social security number a felony. We reject Bales' creative but meritless arguments and affirm his convictions.


This case stems from Bales' transactions with Central Fidelity Bank ("Central Fidelity"), Dominion Federal Savings and Loan ("Dominion"), and First Virginia Bank ("First Virginia"). Bales supplied these Virginia-based institutions with a wealth of false information. He submitted documents to them referring to nonexistent accountants, real estate agents, automobiles, and social security numbers.

A. Central Fidelity Bank

On November 1, 1985, Bales, as president of Preferred Research, Inc., arranged to buy two cars for the corporation from Alex Arnold (doing business as Arnold Financial Services). According to the bills of sale, these cars were a 1981 Volkswagen Rabbit and a 1983-84 Audi. Total cost of the cars was $16,500; $14,500 was allegedly paid when the sale contract was signed.

On November 17, 1985, Bales visited Betty Stratton, an official at Central Fidelity. He sought a $12,500 loan to finance the purchase of the cars. Bales put up the cars as collateral for the loan. He supplied Central Fidelity with bills of sale, including the Vehicle Identification Number (VIN) of each car. He also gave the bank a personal financial statement showing "5-6-40" as his birthdate and 226-48-5559 as his social security number. Bales never gave the bank title to the cars as collateral. More importantly, he never repaid the loan which he received from Central Fidelity.

B. Dominion Federal Savings and Loan

Bales contacted Dominion in connection with an alleged real estate deal. In October, 1985, Bales ostensibly contracted with Alex Arnold (again doing business as Arnold Financial Services) to buy, remodel, and resell property in Arlington, Virginia. He set about financing this transaction by applying for a loan from Dominion. On the loan application form, he supplied bank officials with the same social security number he had furnished to Central Fidelity. Bales also gave Dominion the same personal and corporate financial statements he had supplied to Central Fidelity, with "Jo Ware," as CPA, printed on them, as well as his 1983 and 1984 tax returns. Bales' piece de resistance was the real estate contract itself, which described the property as 127 North Park Drive, Arlington, Virginia. The contract showed Bales as purchaser, and Jo Ware Associates as the seller's agent. Unable to verify the information provided, Dominion cancelled Bales' application. The bank never actually loaned him any money.

C. First Virginia Bank

As president of "First Corp.," Bales visited First Virginia Bank on December 16, 1985, in an attempt to establish a $20,000 line of credit for this company. Like the other banks, First Virginia received Bales' 1983 and 1984 tax returns, complete with his alleged social security number. First Virginia used the information on Bales' application form to run a credit check on him. Because of his insufficient credit history, the bank eventually denied him the loan.

Bales' trips to the banks earned him a ten-count superseding indictment in the United States District Court for the Eastern District of Virginia. The superseding indictment contained three counts of bank fraud, in violation of 18 U.S.C.A. Sec. 1344 (West Supp. 1986) (counts 1, 4, and 7); three counts of false statements to a bank, in violation of 18 U.S.C.A. Sec. 1014 (West 1976) (counts 2, 5, and 8); and four counts of false representation of a social security number, in violation of 42 U.S.C.A. Sec. 408(g)(2) (West 1983) (counts 3, 6, 9, and 10).

Bales filed several pretrial motions. Among other things, he sought to suppress evidence seized from his car in May, 1986. After a hearing before the district court on July 18, 1986, this motion was denied. Bales also moved, unsuccessfully, for a bill of particulars.

After waiving his right to trial by jury, Bales was tried on July 29 and 30. On the eve of trial, the government dismissed counts 2, 4, and 7, and Bales successfully moved for a dismissal of count 10 at the close of the government's case. The district court found Bales guilty of the remaining counts, 1, 3, 5, 6, 8, and 9. On September 29, 1986, the district court denied Bales' motion for judgment of acquittal or a new trial.


On appeal, Bales raises several issues. He claims that: (1) the evidence was insufficient to convict him; (2) the trial court erred in denying his motion for a bill of particulars; (3) the trial court erred in denying his motion for a new trial; (4) the search and seizure of documents from his car was unlawful; (5) the trial court erred in refusing to allow defense witnesses to testify; (6) 42 U.S.C.A. Sec. 408(g)(2) (West 1983) was unconstitutionally applied to convict him; (7) he was erroneously convicted for falsely representing his social security number; and (8) the trial court's restitutionary award was unsupported by proof of loss.

A. Sufficiency of the Evidence

Bales attacks nearly every piece of the government's evidence, from the false birthdate and social security number, to the nonexistence of Jo Ware. In evaluating his challenges, we are mindful of the great discretion accorded to the trial judge. When, as in this case, a jury trial is waived, the judge weighs the evidence, determines the credibility of the witnesses, and finds the facts. See 2 C. Wright, Federal Practice and Procedure Sec. 374, at 315 (1982). The court may select among conflicting inferences to be drawn from the testimony. See United States v. Pitts, 428 F.2d 534, 537 (5th Cir.), cert. denied, 400 U.S. 910, 91 S.Ct. 154, 27 L.Ed.2d 149 (1970). In findings on factual issues other than the ultimate issue of guilt, the reviewing court applies the "clearly erroneous" test. See Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963). On the ultimate issue of guilt, a finding generally must stand if it is supported by substantial evidence. See Gordon v. United States, 438 F.2d 858, 868, n. 30 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971).

In order to sustain convictions under 18 U.S.C.A. Sec. 1344 (West Supp. 1986) and 18 U.S.C.A. Sec. 1014 (West 1976), the trier of fact must find that Bales knowingly made false representations to the banks, with the purpose of influencing their actions. See United States v. Bonnette, 663 F.2d 495, 497 (4th Cir.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1456, 71 L.Ed.2d 666 (1982). 2 Bales claims that the government did not prove his fraudulent intent in submitting several bits of information to the banks. He argues, for instance, that the confusion over his actual birthdate and social security number negates a finding of wrongful intent. This argument ignores the longstanding principle that fraudulent intent may be established by circumstantial evidence and by inferences deduced from facts and situations. See Mitchell v. Union Pacific Railroad Co., 188 F.Supp. 869, 872 (S.D.Cal.1960). It also ignores the trial court's ability to sift through conflicting evidence and arrive at the facts.

The court performed this sifting function in rejecting Bales' evidence and accepting the government's evidence. The district judge found that Bales' true birthdate was "6-5-40" and that Bales had submitted to Central Fidelity documents transposing these numbers, showing his birthdate as "5-6-40." The judge acted within his discretion in crediting the government's self-authenticating birth certificate over an affidavit which Bales' father furnished.

The dispute over the existence of the two cars, the 1981 Volkswagen Rabbit and the Audi which Bales purportedly purchased, spawned a great deal of testimonial evidence on both sides. Again, the trial court's decision to credit the government witnesses is supported by substantial evidence. Robertson, the government's expert witness, examined the bills of sale which Bales provided. He stated that the Volkswagen had an invalid Vehicle Identification Number (VIN), since the first digits were inaccurate. Similarly, he testified that the Audi had an inaccurate VIN. The trial court also acted within its discretion in crediting the government's evidence showing that Jo Ware does not exist, including testimony by a realtor who stated that she had no knowledge of a Jo Ware Agency.

Likewise, the court acted within its discretion in rejecting Bales' explanation for the change in his social security number. Bales claimed that he used his first number, 228-46-9555, until he received a memo from a Missouri regional Social Security Administration office in 1983, instructing him to use number 226-48-5559. To support his claim, Bales produced unconvincing witnesses, including his attorney, who stated that he "vaguely remembered" the mix-up over the...

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