U.S. v. Gammage, 85-1612

• Decision Date: 23 May 1986
• Docket Number: No. 85-1612,85-1612
• Citation: 790 F.2d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Glenn GAMMAGE, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 431

790 F.2d 431

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Glenn GAMMAGE, Defendant-Appellant.

No. 85-1612

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 23, 1986.

Melvyn Carson Bruder, Dallas, Tex., for defendant-appellant.

Marvin Collins, U.S. Atty., William F. Alexander, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, REAVLEY, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

In his role as co-guarantor of two loans, Gerald Glenn Gammage claimed as an asset an interest in his wife's separate property. He was convicted of making materially false statements to two federally insured institutions. We conclude that the district court properly instructed the jury concerning the essential elements of the offenses and Gammage's defense of good faith mistake. We also conclude that the evidence of Gammage's mens rea was sufficient to uphold the convictions. We therefore affirm.

I.

Until his death in June 1975, James A. Lindsay owned two stock certificates which reflected his complete ownership of Gulf States Title Company [Gulf States], a Louisiana corporation. Under the terms of Lindsay's will, as ultimately adjudicated by a Louisiana probate court in May 1983, all of his property, including his stock in Gulf States, passed in undivided equal portions to his three children, one of whom was April Lindsay Gammage. The stock certificates were not cancelled and reissued, but were held jointly by the three children. April had married Gammage in July 1977, and they remained married until their divorce in May 1985.

In the course of his real estate and business dealings, Gammage acted as co-guarantor for corporate borrowers on the two occasions relevant here. In connection with a loan guaranty for $736,381.80 dated March 28, 1983, Gammage signed a loan application and financial statement which listed as an asset a $900,000 interest in Gulf States stock. These documents were received by the lender, First Savings and Loan Association of Burkburnett, Texas, an institution insured by the Federal Savings and Loan Insurance Corporation [FSLIC]. In connection with another loan guaranty for $1,203,265 dated October 4, 1983, Gammage signed a loan application and financial statement and submitted it to the lender, Lancaster First Federal Savings and Loan Association of Lancaster, Texas, also a FSLIC insured institution. This financial statement listed as an asset Gulf States stock, which it valued at $950,000.

The financial statement submitted to the Burkburnett savings and loan claimed that the Gulf States stock was "registered in the name of M/M G. Gammage." The financial statement submitted to the Lancaster savings and loan did not mention the registration of the stock, listing it once simply as "Gulf States Title, Inc., private" and at another point "Gulf States Title Family Held." Gammage's wife April did not sign any of these financial statements or supporting documents. When these loans were later closed, Gammage received several thousand dollars from the corporate borrower. In an indictment filed on March 27, 1985, Gammage was charged with two counts of making materially false statements in loan applications to federally insured lending institutions, each in violation of 18 U.S.C. Sec. 1014.

At trial, the government introduced the documents signed by Gammage and submitted to the Burkburnett and Lancaster savings and loans which stated his claim of ownership of the Gulf States stock. James A. Lindsay II, April's brother, testified that April owned an undivided one-third interest in their father's Gulf States stock as a result of the judgment of the Louisiana probate court, but that no stock was ever issued to Gammage. This probate judgment was also introduced in evidence. Gammage testified that he "had been quoted by an attorney and friend" that under Texas law "all assets to the two parties of a marriage during the marriage are considered to be community unless otherwise proven ... in court...." Gammage claimed that when submitting the loan document he believed that April and he "had a community interest" in the Gulf States stock. Three character witnesses also testified for Gammage.

At the charge conference, counsel for Gammage objected to the omission of his proposed jury instruction which stated that all property owned by either spouse during the marriage is presumed to be community property. The district court rejected this instruction, but agreed to a minor rewording of another instruction. No other objections to the instructions were raised. The district court then charged the jury, including instructions on the elements of the offenses and on a good faith defense. The jury found Gammage guilty on both counts. The district court entered judgment on this verdict, imposing a sentence of two concurrent two-year terms of imprisonment and a $5000 fine, but suspending all except 179 days of the two-year period. After Gammage served three months, the district court ordered him released from custody, reducing the 179 days to time served. Gammage appeals.

II.

Gammage first argues that the district court failed to instruct the jury with respect to the identity of the entities to whom the statements of his ownership of Gulf States stock were made. Gammage testified that, with respect to the Burkburnett loan, he did not submit the supporting documents directly to the savings and loan. One element of a violation of 18 U.S.C. Sec. 1014 is that the statement be made "for the purpose of influencing in any way the action" of a covered entity; a FSLIC insured institution is one such covered entity. ¹ See U.S. v. Lentz, 524 F.2d 69, 70-71 (5th Cir.1975). "[I]t is sufficient to establish that the false statement was made for the purpose of influencing the action of a covered institution, if the proof shows that the defendant received notice sufficient to create a reasonable expectation that the statement would reach an institution of the type included in the statute. The proof need not show that it was presented directly to a covered institution." Id. at 71.

We conclude that the court's instruction on this issue was more than adequate. Initially, we note that Gammage did not object to the court's charge on this ground before the jury retired, as required by the Rules. See Fed.R.Crim.P. 30. Where an objection to a jury instruction is raised for the first time on appeal, even an inaccurate instruction will be upheld absent "plain error." See United States v. Birdsell, 775 F.2d 645, 654 (5th Cir.1985). Here, the district court clearly instructed the jury of the identify of the covered institution (emphasis added):

There are two essential elements which must be proved beyond a reasonable doubt in order to establish the offense proscribed by this law

First: That the Defendant knowingly made a false statement or report concerning a material fact to a Federal Savings and Loan Association or insured institution; and

Second: That the Defendant made the false statement or report willfully and with intent to influence the action of the Federal Savings and Loan Association or insured institution upon an application, advance, commitment or loan, or any change or extension thereof.

An "insured institution" means any savings and loan association the accounts of which are insured by the Federal Savings and Loan Insurance Corporation.

Gammage does not indicate how this instruction is faulty in any way. It suffices to say that we perceive no plain error. ²

Next, Gammage challenges the refusal of the district judge to give his proposed instruction regarding Texas community property law. The requested instruction stated the following:

In a Community Property state such as Texas all property owned by either spouse during the time of marriage up until the parties are divorced or one of them dies is presumed to be Community Property jointly owned by the spouses. This is a rebuttable presumption. To rebut this presumption it must be shown that the property of one of the spouses was owned prior to marriage or was obtained after marriage by gift or inheritance.

This proposed instruction was drawn in part from Texas statutory authority. ³ Gammage argues that the omission of this instruction eviscerated his defense. The primary thrust of Gammage's strategy was to show his good faith belief that he had a community interest in the Gulf States stock.

A defendant is ordinarily entitled to an instruction on his "theory of the case." United States v. Robinson, 700 F.2d 205, 211 (5th Cir.1983) (citation omitted), cert. denied, 465 U.S. 1008, 104 S.Ct. 1003, 79 L.Ed.2d 235 (1984). However, the district court "may decline a suggested charge which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions." Id. A defendant is not entitled to "a judicially narrated account of 'his' facts and legal arguments." Id. The instructions, taken as a whole, need only "substantially cover" the issue. See Hodges v. United States, 363 F.2d 439, 440 (5th Cir.1966). Here the district court gave instructions which bore on Gammage's defense of good faith:

You are further instructed that one who acts with honest intention is not chargeable...