U.S. v. Jordan, 88-2550

• Decision Date: 22 November 1989
• Docket Number: No. 88-2550,88-2550
• Citation: 890 F.2d 247
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodman Wolfe JORDAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 247

890 F.2d 247

UNITED STATES of America, Plaintiff-Appellee, v. Rodman Wolfe JORDAN, Defendant-Appellant.

No. 88-2550.

United States Court of Appeals, Tenth Circuit.

Nov. 22, 1989.

John E. Green (William S. Price, U.S. Atty., with him on the briefs), Asst. U.S. Atty., W.D. Okl., Oklahoma City, Okl., for plaintiff-appellee.

Mike Brown of Brown, Harding, Brown, Fargason & Rice, Lubbock, Texas, and Daniel H. Benson, Texas Tech University (Ray Fargason of Brown, Harding, Brown, Fargason & Rice, Lubbock, Tex., with them on the briefs), for defendant-appellant.

Before McKAY, McWILLIAMS, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Jordan (Defendant) appeals his jury conviction on four counts of knowingly making a false statement to an insured savings and loan for the purpose of obtaining a loan, in violation of 18 U.S.C. Sec. 1014 (1982).

Defendant asserts six errors: (1) the prosecution is barred by the statute of limitations; (2) the trial court erroneously instructed the jury concerning the limitations and republication of a false statement; (3) the indictment is multiplicitous; (4) there exists a fatal variance between the indictment and the evidence; (5) the trial court abused its discretion in ordering payment of restitution as a condition of probation; and (6) the trial court abused its discretion in ordering, as a condition of probation, that Defendant incur no new debts.

An overview of the facts is required to understand the assertions of error. The specific facts will be developed as necessary. Defendant gave to an FSLIC insured savings and loan a document that was represented to be a true copy of his 1981 federal income tax return (Form 1040). The savings and loan officer, in making the decision to make four separate loans to Defendant on four separate occasions, placed great reliance upon this document as it showed the Defendant's 1981 taxable income to be in excess of $120,000, thereby evidencing Defendant's capacity to repay the loans. Relying upon this information the savings and loan made four loans to the Defendant from March 23 through May 1983. Defendant's problems arose when he was unable to repay the loan. It was then learned that the document presented was not a true copy of Defendant's 1981 Federal tax return. The Form 1040 actually filed by the Defendant with the IRS showed a taxable income of approximately $16,000. The prosecution and convictions followed.

I. The Statute of Limitations

Defendant contends that, because he delivered the fictitious copy of his tax return to the savings and loan in February of 1983 and the indictment was not forthcoming until March 8, 1988, the prosecution is barred by the five-year statute of limitations enunciated by 18 U.S.C. Sec. 3282 (1982).

To properly resolve Defendant's contention it becomes necessary to review the evidence relating to the date of submission of the fictitious tax return. In reviewing the evidence supporting a conviction, it is axiomatic that we must view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the Government. The loan officer for the savings and loan testified that Defendant first delivered a "loan package" to the savings and loan in February of 1983 and this package included the fictitious Form 1040. He further testified that the package did not contain a suitable appraisal and the Defendant thereupon brought in a new package containing both a suitable appraisal and the fictitious Form 1040 on or after March 17, 1983. He further testified that this first loan was made on March 23, 1983, and the loan documents introduced into evidence support this date. This evidence clearly establishes that the fictitious Form 1040 was delivered to the savings and loan by the Defendant after March 8, 1983. Thus, that a trier of fact could have found, beyond a reasonable doubt, that Defendant delivered the fictitious Form 1040 to the savings and loan within the five-year period prior to March 8, 1988, which was the date the indictment was issued. This second delivery of the fictitious income tax return, made to induce the lender to make the first loan, constituted the "false statement" required for completion of a crime under 18 U.S.C. Sec. 1014.

Defendant's argument that the prosecution is time barred is based upon a factual theory of the case that Defendant delivered the fictitious tax return in February 1983 and Defendant never again had anything to do with or say about this fictitious document. Defendant's factual theory is not supported by the record. It therefore follows that Defendant's legal theory has no merit. The prosecution was not barred by the applicable statute of limitations.

II. Jury Instructions Concerning Republication

Defendant complains of error in the district court's charge to the jury concerning the statute of limitation and the doctrine of republication as related to limitations. Appellant's Brief at 21.

The district court gave to the jury the following instruction:

The Government is required by law to bring a criminal charge against an individual within five years of the commission of an unlawful act....

....

You are instructed that the five year period in a case such as this begins to run on any of the following dates, whichever is later:

1. The date an alleged false statement was submitted to a financial institution.

2. The date an alleged false statement, previously submitted, was affirmatively relied upon by the defendant in subsequent dealings with the financial institution. This is known as "republication" of a previously submitted false document or statement, and does not require an actual delivery or physical resubmission of the alleged false document on each subsequent occasion.

Instruction No. 14. Counsel for the Defendant offered no objection to the instruction before or after it was given in the trial court. Appellant's Brief at 21.

This court has often stated the general rule that if an appellant fails to alert the trial court to claimed error, the issue cannot be raised for the first time on appeal unless plain error is held to apply. E.g., United States v. Phillips, 869 F.2d 1361, 1365 (10th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989); United States v. Freeman, 813 F.2d 303, 305 (10th Cir.1987). See also Fed.R.Crim.P. 30, 52(b). We therefore must analyze this assertion of error under the "plain error" standard.

Defendant argues that the instruction is an "erroneous misstatement" of the law regarding republication of a false statement, Appellant's Brief at 22, and cites to us as his only authority the case of United States v. Brown, 674 F.2d 436, 438 (5th Cir.1982). In Brown, the court found that, in the absence of a record revealing any direct reference to an earlier executed financial statement, or even an indirect or implicit reference to it, one may not be held liable for the making of a false statement. Defendant, in advancing this argument, assumes the facts in the instant case are the same as or closely related to Brown. This is simply not so.

Defendant has cited no authority even suggesting the instruction itself may be erroneous. We find the instruction accurately reflects the law in this circuit regarding republication, as expressed in United States v. Warnick, 815 F.2d 1341, 1342-43 (10th Cir.1987).

In deciding the propriety of this instruction, again we must review the evidence contained in the record. Instructions may not ordinarily be reviewed in a vacuum where no facts are present. Reviewing the evidence in a light most favorable to the Government, as we must, we are persuaded by the following evidence. The savings and loan officer testified it was the bank's "normal procedure" to ask a loan applicant if he or she had a more recent tax return than the one on file with the institution. He stated he told the Defendant that the Defendant would not have to bring in a new Form 1040 for his subsequent loan applications, as the bank could use the financial statement that Defendant already submitted. Another bank officer testified that copies of the financial statement and Form 1040 were maintained in Defendant's consumer loan file and also in the separate file containing his application for a construction loan for the South Classen project. As these officers' testimony reveals, the Defendant submitted or adopted by reference the fictitious Form 1040 in each of his loan applications.

It cannot be disputed that Defendant was implicitly "resubmitting" his financial information initially provided to the savings and loans each time he applied for a subsequent loan. The Defendant could not reasonably expect the institution to make a loan without information on his financial situation, and the loan officer told Defendant that it could use the initial financial statement and tax return for the later loans. The Defendant thus "republished" the fictitious income tax return each time he applied for another loan. There was evidence that on each of the four occasions defendant applied for loans, the fictitious IRS Form 1040 was "submitted" or relied on by Defendant as part of the loan application package. While Warnick did not even require that the defendant know the bank was incorporating his prior security agreements in his loan extension application, see 815 F.2d at 1342, here Defendant was aware that his financial statement was being so used.

It therefore becomes apparent that Defendant is asking us to judge the instruction on the basis of his factual theory, which is unsupported by the evidence. Defendant assumes the record shows the only time the Defendant represented the financial statement to be genuine was when he first brought the fictitious tax return into the bank in February of 1983. The evidence clearly establishes that the tax return was physically submitted on two occasions, in February and March of 1983. Moreover, Defendant was either asked by the lending officer...