U.S. v. Hollis

Decision Date31 July 1992
Docket Number91-6291,Nos. 91-6290,s. 91-6290
Citation971 F.2d 1441
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Pamela Sue HOLLIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William T. "Tom" HOLLIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Mac Oyler, Oklahoma City, Okl., for defendant-appellant, Pamela Sue Hollis.

Mack K. Martin (Laurel S. Smith with him on the briefs), Martin Law Office, Oklahoma City, Okl., for defendant-appellant, William T. "Tom" Hollis.

Robert G. McCampbell, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with him on the briefs), Oklahoma City, Okl., for plaintiff-appellee.

Before ANDERSON, McWILLIAMS, and SNEED, * Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

William "Tom" Hollis and Pamela Sue Hollis were convicted after a jury trial for two counts of bank fraud, in violation of 18 U.S.C. § 1344; one count of submitting false financial statements to a financial institution, in violation of 18 U.S.C. § 1014; two counts of mail fraud, in violation of 18 U.S.C. § 1341; and three counts of engaging in a monetary transaction in interstate commerce in criminally derived proceeds, in violation of 18 U.S.C. § 1957(a). 1

Both appeal their convictions on the grounds that: (1) insufficient evidence was established to support the mail fraud counts alleged in Counts 4 and 8, (2) the government violated their rights against double jeopardy by imposing multiple convictions and sentences for the offenses alleged in Counts 1-3, 4-7, and 8-10; (3) the court improperly instructed the jury (a) by giving an instruction that the Hollises were presumed to know what the law forbids, which according to the Hollises eliminated the government's burden of proving that they "willfully" violated the law, and (b) by failing to give the Hollises' proposed instruction that repayment of the loans might negate the specific intent required to establish bank fraud; (4) the government's rebuttal argument (a) denied the Hollises a fair trial when the prosecutor commented on their reasons for exercising their right to a jury trial, and (b) misstated the law as to the legal effect of the transfer of their office building property; and (5) the trial court erred in providing a supplemental jury instruction ex parte during the jury deliberations. 2 In addition, Tom Hollis argues (1) that the district court erred in not severing Counts 1-3, 4-7, and 8-10 under Fed.R.Crim.P. 14, and (2) that his Fifth Amendment rights were violated when sworn testimony that he was previously compelled to give was admitted at trial. Finally, the Hollises attack their sentences as exceeding the maximum amount that may be imposed under the Sentencing Guidelines.

While these appeals have not been formally consolidated, for reasons of efficiency, we have companioned them for purposes of disposition. We now affirm the convictions and sentences, with the exception of the fines imposed under the Sentencing Guidelines, which we discuss below.

I. FACTS

The Hollises were charged under a ten count indictment. Tom Hollis was named in Counts 1-10, and Pamela Hollis was named in Counts 1-8. The indictment describes three distinct criminal episodes. Counts 1-3 concern loans that the Hollises obtained to finance the purchase of an office building. Counts 4-7 concern an insurance claim that the Hollises filed after claiming that their house had been burglarized. Counts 8-10 concern an insurance claim that the Hollises submitted after their office building had been struck by lightning. The government claims in each case that the loan or insurance proceeds were obtained by fraud through the submission of false documents.

A. Bank Fraud (Counts 1-3).

Counts 1 and 2 allege that the Hollises knowingly executed a scheme to obtain loans from First Interstate Bank in Oklahoma city ("First Interstate") and the Metro Area Development Corporation ("MADC") by false and fraudulent pretenses and representations in violation of 18 U.S.C. §§ 1344 and 2.

In April of 1988, the Hollises obtained a loan for $240,000 from First Interstate and a loan for $147,000 from MADC to finance the purchase of an office building located in Oklahoma City. The loans were obtained pursuant to a government guaranteed lending program at First Interstate, under which a small business could obtain a 10-year loan from First Interstate and a 20-year second mortgage loan from MADC. During the loan approval process, Melinda Fritze, the manager of the First Interstate program, required the Hollises to submit three years' tax returns, financial statements, and personal financial statements. After receipt and review of that information, First Interstate approved the loan and then turned over its credit analysis and the statements to MADC, which after independently analyzing the financial information, approved its loan.

The tax returns that the Hollises submitted to First Interstate for 1984, 1985, and 1986 showed an adjusted gross income for each year ranging from $103,072 to $151,456. The tax returns were not represented to be estimates. In fact, the 1984 and 1985 returns had already been filed with the I.R.S. Melinda Fritze required the Hollises to sign the returns to verify that they were accurate. None of the three returns accurately reflected the Hollises' adjusted gross income. The actual tax returns submitted to the I.R.S. for the same years (1984-1986) showed a loss ranging from $75,809 to $159,068.

In spite of this, the payments on both loans had been kept current. At the time of trial, $72,000 of First Interstate's principal had been paid, leaving a balance of $168,000. The MADC loan had been paid down to $138,000 from $147,000. Further, at the time of the office building purchase, the Hollises contributed $92,000 or 20% toward the purchase. The collateral securing the loans had not deteriorated from the time the loans were made until the time of trial.

On October 1, 1988, after the loans were obtained, the Hollises submitted a financial statement to First Interstate as required by their loan agreement. The statement misrepresented the ownership of the office building, which the Hollises had deeded to Pamela Hollis, Clarence Brown and Ruby Brown; stated that the Hollises had $270,000 on deposit in banks, when in fact they had less than $100,000; reported that the Hollises had $25,000 on deposit in an account that did not exist; overstated the Hollises 1987 income; listed two pieces of real estate that the Hollises claimed to own but did not in fact own; and stated their credit card debt as $5,000, when in fact it was over $30,000.

The transfer of ownership of the office building was a specific breach of the lending agreement, which if disclosed, would have allowed First Interstate to pursue various legal remedies, such as foreclosure. Disclosure of the other facts may have led First Interstate to demand further collateral or monitor the loan more vigilantly.

Count 3 alleges that these material false representations were made for the purpose of influencing the action of First Interstate upon the loan in violation of 18 U.S.C. §§ 1014 and 2.

B. Home Burglary (Counts 4-7).

Count 4 alleges that the Hollises devised a scheme to defraud Farmers Insurance Group of Companies ("Farmers") of money by filing a false insurance claim of $107,859 for items claimed to have been stolen in a house burglary that were not in fact stolen, and that in execution of the scheme, the Hollises caused the mailing of a Sworn Statement in Proof of Loss ("Sworn Statement") form, in violation of 18 U.S.C. §§ 1341 and 2.

On December 3, 1988, the Hollises reported the burglary of their home to the Oklahoma City Police Department. Thereafter, the Hollises contacted Farmers, which had issued them a home owner's insurance policy that protected against loss from burglary. A Farmers representative met with the Hollises at their residence to inspect the scene, ascertain the facts and advise them of the policy coverage. The Hollises informed the representative that they had gone to Tulsa on business over the weekend and found that they had been burglarized when they returned.

The Farmers representative requested that Pamela find receipts for proof of purchase of the claimed stolen items and to cross-reference the receipts with a police report she was completing. Farmers was subsequently given receipts documenting the purchase of the stolen items. Farmers also received a completed Sworn Statement signed by the Hollises, which listed the items. Farmers had previously mailed the Sworn Statement form to the Hollises, and the policy required that the Sworn Statement be completed and submitted before the claim would be paid. The Farmers representative recommended that the claim be paid.

The evidence presented at trial, however, as viewed in the light most favorable to the government, demonstrated that the claim was fraudulent. First, in searches executed at the Hollises' home and at the home of Pamela Hollis' parents, the FBI found several items, including a diamond pendant, Bally Lifecycle, opossum jacket, mink jacket, Casio keyboard, and other electronic equipment, that the Hollises claimed were stolen, but that were not in fact stolen. Second, the Hollises presented purchase receipts of items allegedly stolen, such as a Browning rifle and stereo equipment, that they had purchased and later returned for a refund. Third, the Hollises used a forged receipt and a delivery receipt to document the purchase of electronic equipment and expensive leather garments that they had in fact never purchased.

The Hollises' housekeeper and nanny both testified that they had been told a burglary occurred and that they were shown evidence of the burglary. However, they testified that items they were told had been stolen began reappearing in the house several months after the alleged burglary. Tom Hollis in fact conceded in a taped conversation, "Sure, I doctored some...

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  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 42 No. 2, March 2005
    • 22 March 2005
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