U.S. v. Brown, 81-2157
| Decision Date | 29 April 1982 |
| Docket Number | No. 81-2157,81-2157 |
| Citation | 674 F.2d 436 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joe Lloyd BROWN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. V. Dunnam, Jr., Waco, Tex., for defendant-appellant.
James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, GEE and GARWOOD, Circuit Judges.
Appellant, convicted on two counts of making a false statement to a federally insured bank for the purpose of influencing its actions, appeals, asserting insufficiency of the evidence to support his convictions and other points. Because we agree that the evidence is insufficient in a crucial respect, we need not reach the latter contentions.
The facts are not complex. On November 8, 1976, appellant Brown borrowed $25,000.00 from a federally insured bank in Robstown, Texas. In connection with this loan, he presented a financial statement that, as he does not seriously dispute, misrepresented his financial situation in two significant respects. By telephone, on three subsequent occasions in February and March following, he requested and received substantial additional loans but made no renewed representations regarding his financial condition or the accuracy of the statement. He was convicted on Counts II and IV, charges stemming from the making of the first and third of these subsequent loans. The indictments on these charges do not differ, except as to dates, and Count II reads as follows:
That on or about February 7, 1977, within the Corpus Christi Division of the Southern District of Texas, and within the jurisdiction of this Court, JOE LLOYD BROWN, JR., knowingly did make a materially false statement in an application for a loan submitted by JOE LLOYD BROWN, JR., on said date to the bank of Robstown, Robstown, Texas, a FDIC federally insured bank, for the purpose of influencing the action of said bank to approve said loan, in that JOE LLOYD BROWN, JR., stated and represented in said application, in a statement of assets and liabilities, made a part of said application, that he was on November 1, 1976, Vice President of Austin Shopping Center Inc. and that he owned twenty-five percent (25%) of the common stock of the said Austin Shopping Center Inc. having an estimated value of Two Hundred Fifty-Thousand Dollars ($250,000), when in truth and fact, as JOE LLOYD BROWN, JR., well knew on November 1, 1976, and February 7, 1977, he, the said JOE LLOYD BROWN, JR., was not Vice President of Austin Shopping Center Inc., and he did not own any stock in said Austin Shopping Center, Inc. 1
(Violation: Title 18, United States Code, Section 1014)
It is patent from what we have said that the United States does not contend, nor does the record evidence establish, that the acts charged in the italicized portion of the indictment actually and literally took place. Brown made no actual false statement whatever in his loan application to the bank made on February 7, 1977. His only false statements had been made three months earlier, in connection with securing another loan. 2
The United States argues, however, that "(e)ven if the appellant did not submit a false financial statement with the intention of influencing the bank regarding the first loan, the jury was entitled to find (1) that the appellant submitted the (earlier) false statement for the purpose of influencing the bank regarding later loans, and (2) that the appellant implicitly incorporated the false financial statement in later loan applications by his failure to apprise the bank of his true...
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...showing that appellant intended to influence any decision to advance loan proceeds, as charged by the indictment. Cf. United States v. Brown, 674 F.2d 436 (5th Cir.1982). Appellant correctly points out in this connection that the government did not produce a comprehensive and detailed accou......
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