U.S. v. Jobe

• Decision Date: 24 July 1996
• Docket Number: No. 94-50646,94-50646
• Citation: 90 F.3d 920
• Parties: UNITED STATES of America, Plaintiffs-Appellee, v. Billie Mac JOBE, Stephen Taylor, Philip Mark Sutton, Stanley Pruet Jobe, and Fernando Novoa, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 920

90 F.3d 920

UNITED STATES of America, Plaintiffs-Appellee, v. Billie Mac JOBE, Stephen Taylor, Philip Mark Sutton, Stanley Pruet Jobe, and Fernando Novoa, Defendants-Appellants.

No. 94-50646.

United States Court of Appeals Fifth Circuit.

July 24, 1996.

Al Weisenberger, Duane A. Baker, El Paso, TX, for B.M. Jobe.

Carlos Villa, Gerald P. Keith, Calhoun, Villa & Keith, El Paso, TX, for Taylor.

Jim Darnell, El Paso, TX, for Sutton.

William L. Lutz, Las Cruces, NM, for S.P. Jobe.

S. Michael McColloch, Stacy R. Obenhaus, Cynthia Hollingsworth, Gardere & Wynne, Dallas, TX, for Novoa.

Joan E.T. Stearns, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for Appellee.

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

Before JONES and STEWART, ^* Circuit Judges.

EDITH H. JONES, Circuit Judge:

In their petition for rehearing, the appellants Billie Mac Jobe ("Billie Mac"), Stanley Pruet Jobe ("Stanley"), Stephen Taylor, Philip Mark Sutton, and Fernando Novoa raise a number of issues, some of which require further analysis by this court. Specifically, the Supreme Court's holding in Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987) prevents this court from invoking its concurrent sentence doctrine when a $50 special assessment is imposed on each count of conviction. ¹ As a result, this court's original opinion, United States v. Jobe, 77 F.3d 1461 (5th Cir.1996), is hereby amended as follows. After carefully considering all of the challenges raised by the appellants and the underlying record, this court AFFIRMS all remaining convictions, except that it REVERSES Stanley's conviction as charged in Count 5 for making false statements on a loan application, and REMANDS Novoa for resentencing. ²

DISCUSSION

I. Conspiracy to Commit Bank Fraud: Count 1

All of the defendants were convicted under Count 1 of conspiring to commit bank fraud in violation of 18 U.S.C. §§ 1344, 1005, 1014, and 371. All of the defendants urge that their convictions under Count 1 must be reversed because the district court neglected to instruct the jury that materiality was an element of the offense of conspiracy and that, as a result, their constitutional rights were violated when the district court failed to tender this issue to the jury. ³ Further, three of the defendants, Novoa, Taylor, and Stanley Jobe, contend that their convictions under Count 1 must also be reversed for lack of sufficient evidence. Upon close examination, neither of these arguments has any merit nor requires reversal of the Count 1 convictions.

All of the appellants contend that the Supreme Court's recent decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), requires reversal of their convictions under Count 1. In Gaudin, the Supreme Court explained that where materiality is an element of the charged offense, the district court's failure to submit the question of materiality to the jury violates the defendant's Fifth and Sixth Amendment rights. Id. at ----, 115 S.Ct. at 2320. Although they cite no controlling precedent, the appellants suggest that materiality is an element of their convictions for conspiring to commit bank fraud. Because the jury was not explicitly instructed to determine the question of materiality under Count 1, the appellants conclude that after Gaudin, their convictions under Count 1 must be reversed.

As this court explained in our original opinion, the effect of the Gaudin error, if any, on the multiple verdicts against these defendants is difficult to identify. For instance, the threshold inquiry whether materiality is an element of the convictions for conspiracy to commit bank fraud is subject to dispute. While bank fraud does require a finding of materiality as an element of that offense, see, e.g., United States v. Spears, 49 F.3d 1136, 1141 (6th Cir.1995); United States v. Davis, 989 F.2d 244, 247 (7th Cir.1993), the parties cite no caselaw expressly deciding whether materiality is likewise an element of the offense of conspiring to commit bank fraud. ⁴

However, as previously noted, Count 1 charged each of the defendants with conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344, 1005, 1014, and 371. Section 371 is the general conspiracy statute, prohibiting any conspiracy to commit an offense against the United States or to defraud it. The other statutes referenced in Count 1, if prosecuted as independent offenses, would require the government to prove and the jury to find materiality. Section 1005, for instance, prohibits the making of false entries in any book, report, or statement of a federally insured bank with the intent to injure or defraud the bank. Materiality is an element of that offense. See, e.g., United States v. Jackson, 621 F.2d 216, 219 (5th Cir.1980); United States v. Rapp, 871 F.2d 957, 963-64 (11th Cir.1989), cert. denied, sub. nom., Bazarian v. United States, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 184 (1989). Section 1344, the statutory prohibition against bank fraud and, as discussed above, § 1014, which criminalizes the knowing use of false statements in loan applications to federally insured banks, both require material false statements. See, e.g., United States v. Kelley, 615 F.2d 378, 380 (5th Cir.1980); Rapp, 871 F.2d at 964.

Given this statutory framework, while it is likely that the offense of conspiracy to commit bank fraud would also require the government to prove materiality, this court need not resolve that issue. Critically, none of the appellants objected at trial to the district court's failure to instruct the jury on materiality in Count 1 or in any other count. As a result, this court reviews the Gaudin claim of the appellants for plain error. See, e.g., United States v. Randazzo, 80 F.3d 623 (1st Cir.1996); United States v. DiDomenico, 78 F.3d 294 (7th Cir.1996); United States v. Kramer, 73 F.3d 1067 (11th Cir.1996); United States v. Keys, 67 F.3d 801 (9th Cir.1995), reh'g en banc granted, 78 F.3d 465 (9th Cir.1996). Under plain error review, before this court can even consider reversing the appellants' convictions, the appellants must demonstrate that (1) there was an error; (2) it was clear or obvious; and that (3) this error affected their substantial rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994) (en banc ) (citing United States v. Olano, 507 U.S. 725, 730-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993)), cert. denied, 513 U.S. 1196, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). Even if the appellants satisfy this burden, the Supreme Court has explained that this court need not exercise its discretion to correct the error unless it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Olano, 507 U.S. at 734-35, 113 S.Ct. at 1778. Hence, as this court detailed in its original opinion, even if we assume that Gaudin error was plain because it became so after the trial and only on appeal, and even if we assume that the failure to instruct the jury on materiality was a "structural error" such that the appellants are not required to show prejudice, see Keys, supra, 67 F.3d at 810-11, we may still decline to exercise discretion to reverse the convictions. As noted in the previous opinion, this court thoroughly considered the record and the overwhelming evidence adduced by the government at trial. Although much of the evidence is circumstantial as to the existence of a conspiracy, it is more than sufficient to support the convictions under Count 1. The fact that none of the appellants seriously contested the materiality of false statements or entries, moreover, strongly suggests that materiality was indisputable. Consistent with our previous determination regarding Count 2, this court declines to exercise discretion to correct for the appellants the alleged Gaudin error on Count 1 by reversing their convictions. This result does not effect a fundamental miscarriage of justice.

Having declined to exercise our discretion to correct any alleged Gaudin error in Count 1, the only remaining challenge to the convictions for conspiracy to commit bank fraud suggests that the evidence against Novoa, Taylor, and Stanley Jobe is insufficient to support these convictions. In order to establish a conspiracy under 18 U.S.C. § 371, the government must prove beyond a reasonable doubt the existence of an agreement between two or more people to violate a law of the United States and that any one of the conspirators committed an overt act in furtherance of that agreement. See, e.g., United States v. Faulkner, 17 F.3d 745, 768 (5th Cir.1994), cert. denied, 513 U.S. 870, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994); United States v. Chaney, 964 F.2d 437, 449 (5th Cir.1992). The government must also prove that the defendant knew of the conspiracy and voluntarily participated in it. Chaney, 964 F.2d at 449.

Given this burden and the extensive evidence in this case, the challenge raised by Novoa, Taylor, and Stanley Jobe to the sufficiency of the evidence supporting their convictions is meritless. The standard of review is whether, viewing the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the government, a "reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt." United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.1993), cert. denied, 510 U.S. 1198, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994). This court's original opinion carefully details the extensive evidence supporting the convictions of Novoa, Taylor, and Stanley Jobe. From all of the evidence and testimony presented to the jury in this case, a rational trier of fact could easily have decided that Novoa, Taylor, and Stanley Jobe conspired to commit bank fraud. Put differently, a rational jury could have concluded that Novoa, Taylor, and Stanley Jobe were knowing,...