U.S. v. Grissom, 93-3332

• Decision Date: 23 January 1995
• Docket Number: No. 93-3332,93-3332
• Citation: 44 F.3d 1507
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Steven GRISSOM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1507

44 F.3d 1507

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Steven GRISSOM, Defendant-Appellant.

No. 93-3332.

United States Court of Appeals Tenth Circuit.

Jan. 23, 1995.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, CO (Michael G. Katz, Federal Public Defender, Denver, CO, with her on the brief), for defendant-appellant.

James E. Flory, Asst. U.S. Atty., District of Kan. (Randall K. Rathbun, U.S. Atty., and Kurt J. Shernuk, Asst. U.S. Atty., Dist. of Kansas, with him on the brief), for plaintiff-appellee.

Before BRORBY and McWILLIAMS, Circuit Judges, and BURCIAGA, ^* Senior District Judge.

BURCIAGA, Senior District Judge.

A Kansas City, Kansas grand jury returned an indictment against Defendant on January 7, 1993, charging him with ten counts of violating 18 U.S.C. Sec. 1014 (1988). Section 1014 criminalizes the making of false statements to a federally insured financial institution. The statements the government contended were false were loan disbursement requests Defendant submitted to MidAmerican Bank & Trust Company ("MidAmerican"). On July 30, 1993, the jury convicted Defendant on counts one, two, four, five, and eight of the indictment. The jury could not reach a verdict on counts three and seven, and so the district court declared a mistrial as to those counts. The jury found Defendant not guilty on counts nine and ten. The district court dismissed count six at the close of the government's case.

Viewed in the light most favorable to the government, United States v. Dickey, 736 F.2d 571, 583 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985), the facts of this case are as follows. In 1989, Defendant and Richard Stokes formed the Grissom, Stokes Company ("Grissom, Stokes") as a structural concrete and flat work subcontractor. Defendant was primarily responsible for office operations, accounting and payroll. Stokes supervised the field work. In the fall of 1991, Grissom, Stokes acquired a contract to perform work for the Truman Medical Center ("Truman project"). During the same time period The SBA required Grissom, Stokes to submit documentation to MidAmerican regarding actual or intended use of the loan proceeds. Joel Richards, an officer at MidAmerican, explained to Defendant and Stokes that the bank authorized the company to use the loan proceeds solely for the Truman project. The bank insisted on the submission of draw sheets indicating that Grissom, Stokes used or would use the funds only for labor and materials for completion of the Truman project. The bank also required Grissom, Stokes to submit computer printouts of their payroll records and copies of invoices or checks relating to material and labor expenses.

Grissom, Stokes applied to MidAmerican Bank for a Small Business Administration ("SBA")-guaranteed loan in the amount of approximately $160,000 to complete the Truman project.

Jennifer Jordan, formerly Jennifer Bean, was Defendant's secretary. She testified that she and Defendant compiled the necessary information for the draw requests the company submitted to the bank. At the direction of Defendant, Jordan omitted certain payroll documents which would have demonstrated that Grissom, Stokes incurred some payroll expenses for work other than the Truman Project. Also at the direction of Defendant, Jordan included in the draw requests checks evidencing payment to invoices that were ostensibly billed on the Truman project. In some cases, however, the checks to the vendor were for another invoice on a different job. On still other occasions, Defendant instructed Jordan, over her protests, to submit invoices from the Truman project for direct pay (i.e., for the bank to pay the vendors or suppliers directly), even though Grissom, Stokes had already drawn proceeds on these same expenses.

Defendant advances numerous grounds for reversal, all of which were preserved at the trial below. First, Defendant contends that the evidence was insufficient to sustain the convictions. Second, Defendant argues the district court wrongly refused his good faith defense and theory of defense instructions. Third, the district court allegedly abused its discretion in admitting certain prior acts evidence. Fourth, Defendant asserts the district court's calculation of the amount of loss to the victim for purposes of restitution was erroneous. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742, and affirm in all respects.

I.

Defendant first attacks the jury's verdict on sufficiency grounds. Defendant argues that when he submitted the draw requests, he either made no false statement at the time of the original request, or any apparent falsities were the result of good faith mistakes.

In reviewing a challenge to the legal sufficiency of the evidence after the jury has returned a verdict, "we examine, in the light most favorable to the government, all of the evidence together with the reasonable inferences to be drawn therefrom and ask whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt." United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 616, 126 L.Ed.2d 580 (1993). We consider both direct and circumstantial evidence and accept the jury's resolution of conflicting evidence and its evaluation of the credibility of witnesses. United States v. Dirden, 38 F.3d 1131, 1140-42 (10th Cir.1994). As long as the possible inferences are reasonable, it was for the jury, not the court, to determine what may have occurred. United States v. Johnson, 977 F.2d 1360, 1370 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1024, 122 L.Ed.2d 170 (1993).

18 U.S.C. Sec. 1014 prohibits the making of a false statement directed towards a federally insured financial institution. The requisite elements of a section 1014 prosecution are: (1) that the defendant made a false statement to a bank; (2) that the defendant did so for the purpose of influencing the bank's actions; (3) that the statement's falsity was material; and (4) that the defendant made the false statements knowingly. United States v. Haddock, 956 F.2d 1534, 1549 (10th Cir.), reh'g en banc granted in part on other grounds, 961 F.2d 933 (10th Cir.), cert.

denied, --- U.S. ----, 113 S.Ct. 88, 121 L.Ed.2d 50 (1992). The defendant need not have intended to harm the bank or to personally profit, United States v. Whitman, 665 F.2d 313, 318 (10th Cir.1981), and the bank need not have suffered actual loss in order to sustain these convictions. Id.

As discussed, some counts of the indictment were based on Defendant's submission of invoices from the Truman project for direct pay when the company had already drawn proceeds on these same expenses as a result of earlier requests. For example, Defendant would first request a draw so that Grissom, Stokes would have the funds to pay an expense when it accrued in the future. Defendant would later request the bank to directly pay the vendor for the same expense. Defendant argues that the fact that he later submitted material invoices for direct pay of the same expense does not necessarily demonstrate that he knew or intended that the statements he made in the earlier draw requests were false. Instead, Defendant posits that his later requests for direct pay were the result of good faith mistakes.

The jury could have believed that Defendant's original draw requests were knowingly false because he did not eventually use those requested funds to pay the expenses as he said he would in the original requests. The evidence permitted the jury to infer that Defendant falsely represented that the loan funds he originally requested would actually be used to pay future expenses or expenses already incurred on the Truman project. The fact that Defendant later requested the bank to directly pay those same expenses only reinforced this inference. Indeed, the government's case included Defendant's signed certifications that he provided to the bank in which he stated that he used the proceeds drawn from earlier requests exclusively for materials and labor on the Truman project--yet he gave the bank these certifications either after he made the requests for direct pay or contemporaneously with those requests. In addition, the government introduced evidence indicating that at the same time Defendant submitted check numbers to the bank indicating that Grissom, Stokes had paid certain material invoices, Defendant also submitted some of the same material invoices for direct pay. Most damning to Defendant was evidence of Jordan's protests and Defendant's response of "Do as you're told."

In counts two, four, and five, the jury convicted Defendant of submitting false statements involving a draw request for labor on the Truman project. The proof here consisted of Defendant's submission of full payroll records without attributing payroll expenses to the Truman project specifically. In a cover letter to these records, Defendant falsely sought reimbursement for more than what the payroll records attributed to the Truman project. Because MidAmerican's Joel Richards asked Grissom, Stokes for a specific accounting of those payroll costs attributable to the Truman project, Defendant argues that the bank was never harmed or misled.

Section 1014 punishes the making of the false statement with the intent to influence a bank's action. That the bank detected Defendant's false or misleading statements is immaterial. The government need not prove actual loss or that the bank was influenced by the statement or relied upon it in making its decision. United States v. Copple, 827 F.2d 1182, 1187 (8th Cir.1987), cert. denied, 484 U.S. 1073, 108 S.Ct. 1046, 98 L.Ed.2d 1009 (1988); Whitman, 665 F.2d at 318.

Defendant's final contention regarding the sufficiency of the evidence is that any discrepancies in the amounts requested and the amounts Grissom, Stokes actually used on the...