U.S. v. Bush, 78-5296

• Decision Date: 18 July 1979
• Docket Number: No. 78-5296,78-5296
• Citation: 599 F.2d 72
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David BUSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 72

599 F.2d 72

UNITED STATES of America, Plaintiff-Appellee, v. David BUSH, Defendant-Appellant.

No. 78-5296.

United States Court of Appeals Fifth Circuit.

July 18, 1979.

Richard G. Lubin, W. Palm Beach, Fla., for defendant-appellant.

Karen L. Atkinson, Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.

THORNBERRY, Circuit Judge:

This is a direct criminal appeal. The appellant, David Bush, was charged in a seven count indictment alleging that Bush knowingly and willfully made false statements to a bank for the purpose of influencing a bank to advance funds, in violation of 18 U.S.C. § 1014. ¹ The jury acquitted Bush of the first five counts but convicted him of the remaining two. Bush appeals these convictions asserting that there was a fatal variance between the indictment and the proof offered at trial and that the trial judge improperly refused to give certain requested charges. Finding no merit to Bush's claims, we affirm.

Bush was the bookkeeper, and later comptroller, of Century II, a company which built single family homes. The evidence viewed favorably to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), discloses that in 1975, Century II obtained a line of credit for the construction of single family homes from the First Bank West of Lake Worth, Florida. Pursuant to a loan agreement, a formula was established for the disbursement of the loan proceeds. The formula was represented by a checklist which bracketed the various stages of construction typical to the construction of a single family dwelling. As the construction advanced Bush was to submit a checklist and a letter requesting incremental draws. In this manner, the bank would advance funds roughly equal to the stage of construction. The government's proof on the two convicted counts shows that the appellant submitted checklists that falsely represented the stage of completion of two homes and that the appellant submitted letters requesting monies to which the company was not entitled.

Bush first argues that there was a fatal variance between the indictment and the proof at trial. In essence, the indictment charged that Bush submitted a letter requesting payment for construction that had not been done in violation of the construction loan disbursement schedule. ² The government undertook this burden by proving that Bush submitted a letter to the First Bank West requesting "Draw 4 per enclosed control sheet, $3,000." The government offered testimony that Draw # 4 represented that the house was approximately 80% Complete. In fact, the evidence demonstrated that the house was about 60% Complete. Bush argues that there was no written loan disbursement schedule in effect and it was error for the trial judge to allow the government to prove that the checklists represented a part of the disbursal agreement.

There can be little doubt that the indictment as written is sufficient to charge a federal crime. The indictment fully sets out all of the elements of the offense. ³ United States v. Slepicoff, 524 F.2d 1244 (5 Cir.), Cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 824 (1975). At trial the indictment must be such as to (1) inform the defendant of the charges against him so that he may present a defense and not be taken by surprise by the evidence offered at trial; and (2) protect against another prosecution for the same offense. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Davis, 592 F.2d 1325 (5 Cir. 1979).

We believe that there was no variance between the indictment and the proof. The indictment did not allege a "written disbursement schedule", it alleged a "disbursement schedule." While the appellant might have a mental image of a parchment document accompanied by official seals, nothing in the indictment, even by implication, would estop the government from proving that the checklists represented the disbursement agreement. ⁴ Moreover, even if there is a technical variance, we cannot perceive the prejudice. ⁵ The government provided the checklists to the defense before trial. Therefore, the checklists could not have surprised the defense. See United States v. Patton, 594 F.2d 444, 446 (5 Cir. 1979) (prejudice necessary before variance fatal to conviction).

Next Bush argues that the trial judge improperly refused to give certain requested instructions. The appellant candidly admits that the essence of most of the requested instructions was given by the trial judge but that the trial judge refused to tailor the instruction so as to present the appellant's "theory of defense." Chief Judge Brown has ably addressed this argument in United States v. Barham, 595 F.2d 231, 244 (5 Cir. 1979):

Barham relies on the numerous cases in this Circuit which hold that where there is any evidentiary support whatsoever for the availability of a legal defense, and the Trial Court's attention is specifically directed to that defense, it is reversible error for the Court to refuse to charge the jury concerning that defense. Moreover, the instructions must be sufficiently precise and specific to enable the jury to recognize and understand the defense theory, test it against the evidence presented at trial, and then make a definitive decision whether, based on that evidence and in light of the defense theory, the defendant is guilty or not guilty. Our cases do not hold, however, that a defendant is entitled to a judicial narrative of his version of the facts, even though such a narrative is, in one sense of the phrase, a "theory of the defense." Indeed, our cases hold just the opposite.

(footnotes omitted). We find no error in the trial judge's refusing to give Bush's "theory of the defense" instructions. ⁶

In Requested Instruction No. 12 Bush asked the trial judge to instruct the jury that Bush's statements, even if false, could not have been made for the purpose of influencing the First Bank West if the Bank's president, Wayne Robertson, knew the statements were false. This instruction was properly rejected for it is not the law. The words "for the purpose of influencing" define the quality of the required intent, they do not immunize a party in duplicity with a bank officer. United States v. Braverman, 522 F.2d 218 (7 Cir. 1975), Cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975); United States v. Niro, 338 F.2d 439, 441 (2 Cir. 1964). While it is undoubtably true that 18 U.S.C. § 1014 benefits various financial institutions, the law's ultimate beneficiary is the United States. False statements given to insured banks have the potential to mislead the auditors charged with maintaining the federal standards. The government's interest in maintaining the vitality of its insurance programs mandates that all material false statements violate § 1014, even when the false statements are given with the knowledge, consent or duplicity of a bank officer.

At trial Bush introduced evidence that he met with Century II's corporate attorney in September and in November 1976 to discuss the legality of the draw procedures. The attorney told Bush that the procedure violated no law so long as Bush did not present a sworn affidavit. Based on this evidence Bush requested two separate instructions. The first instruction was taken from Devitt and Blackmar, Federal Jury Practice Instructions § 14.10.

Ignorance of the Law

It is not necessary for the prosecution to prove that the Defendant knew that the particular acts were a violation of the law. Unless and until outweighed by evidence in the case to the contrary, the presumption is that every person knows what the law forbids, and what the law requires to be done. However, evidence that the accused acted or failed to act because of ignorance of the law, is to be considered by the Jury, in determining whether or not the accused acted or failed to act with specific intent, as charged.

The second requested instruction called upon the jury to consider Bush's seeking the advice of counsel when determining if Bush acted willfully: ⁷

Action on Advice of Counsel

The Defendant claims that he is not guilty of willful wrongdoing because he acted on the basis of advice from his attorney.

If the Defendant before taking any action sought the advice of an attorney whom he considered competent, in good faith and for the purpose of securing advice on the lawfulness of his future conduct, then this evidence should be considered by you in determining whether the Defendant had the intent to commit the crime charged.

The trial judge refused to give the ignorance of the law instruction but substantially gave the advice of counsel instruction.

Bush now assigns this refusal as error.

The requested instruction has recently been the source of much litigation in this circuit. No less than five cases have discussed this instruction either directly or indirectly. In United States v. Schilleci, 545 F.2d 519 (5 Cir. 1977), the defendant, an elected Louisiana police chief, was charged with wire tapping and perjury violations. The defendant argued at trial that it was his belief that his action was not a violation of law. The defendant requested the charge requested in the present case but the trial judge redacted that portion of the charge which allowed the jury to find lack of specific intent from ignorance of the law. We determined that the charge as given in Schilleci did not allow the jury to consider the effect of the defendant's alleged ignorance of the law on the required specific intent. 545 F.2d at 524.

Next, we held in United States v. Granada, 565 F.2d 922 (5 Cir. 1978), and United States v. Schnaiderman, 568 F.2d 1208 (5 Cir. 1978), that it was plain error for a trial judge to give a general intent charge ⁸ when the defendant was charged with a specific intent...