U.S. v. Keefer, 85-1610
| Decision Date | 02 September 1986 |
| Docket Number | No. 85-1610,85-1610 |
| Citation | 799 F.2d 1115 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Warren Dale KEEFER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Larry C. Willey, Charles S. Rominger (argued), Rominger and DeWitt, Grand Rapids, Mich., for defendant-appellant.
John C. Bruha (argued), Asst. U.S. Atty., Grand Rapids, Mich., for plaintiff-appellee.
Before CONTIE and RYAN, Circuit Judges, and BROWN, Senior Circuit Judge.
Defendant-appellant Warren Dale Keefer appeals his jury conviction of causing a false statement to be made to a United States agency in violation of 18 U.S.C. Secs. 1001 and 2. The indictment charged two counts of aiding and abetting or causing false statements to be made on applications for mortgagor approval and commitment for mortgage insurance which were submitted to the Department of Housing and Urban Development, Federal Housing Administration (FHA), for property located in East Grand Rapids, Michigan, and Clearwater, Florida. Appellant contends: (1) that the district court erred in refusing to dismiss the case as required by the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq.; (2) that his conviction under 18 U.S.C. Sec. 2 must be reversed because there was no evidence that another person committed the predicate felony proscribed by 18 U.S.C. Sec. 1001; (3) that the district court erroneously ruled that certain of the false statements were material as a matter of law; and (4) that the district court should have declared a mistrial based on instances of asserted prosecutorial misconduct.
We hold that, (1) pursuant to the Supreme Court's recent decision in Henderson v. United States, --- U.S. ----, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the Speedy Trial Act was not violated; (2) appellant was properly convicted under 18 U.S.C. Secs. 2(b) and 1001 even though the person appellant caused to sign the mortgage documents may have been guiltless under Sec. 1001; (3) the false statements in question were material as a matter of law; and (4) appellant's conviction should not be reversed based on asserted prosecutorial misconduct.
In 1979, appellant resided in Holland, Michigan, where he operated the Netherlands Inn. In May of that year, Terry McLean arrived in Holland at appellant's invitation. McLean had escaped from a California prison camp in June of 1978 where he had been serving a sentence for burglary. 1 After his escape, he used the name Theodore John McCall to avoid detection and obtained several pieces of identification in that name. McLean told appellant that he had been paroled but, in June of 1979, appellant learned that McLean had escaped from custody. Appellant, who had known McLean since 1978, hired him as a maintenance man, paying him about $100 per week. McLean worked at the Netherlands Inn for about six weeks, and then worked for appellant renovating another hotel in Ionia, Michigan, for approximately ten weeks.
While McLean was working at the Netherlands Inn, appellant suggested they buy a home in Florida for a winter retreat, a new four-bedroom house in Clearwater. McLean, using the name "McCall," signed the purchase agreement. The agreement specified that the house was to be financed with a FHA insured mortgage loan from a mortgage company in Florida. A loan application package prepared by the mortgage company was sent to "McCall" in Michigan. According to McLean's testimony, appellant typed the application and asked McLean to sign it, using the "McCall" alias. McLean did so, without reading the application. The indictment alleged that the application falsely stated:
1. That the mortgagor's name on said property was Theodore J. McCall;
2. That the mortgagor would be the occupant of the property;
3. That the mortgagor was the manager of the Netherlands Inn in Holland, Michigan;
4. That the mortgagor had been employed at the Netherlands Inn for three years;
5. That the mortgagor's monthly income was $2,000.00;
6. That the mortgagor owned furniture and personal property worth $7,000.00;
7. That the mortgagor owned tools worth $1,500.00;
8. That the mortgagor owned a 1974 Mercedes-Benz automobile worth $8,500.00; and
9. That the mortgagor was being transferred to Tampa, Florida, effective September 1, 1979, at an annual salary of $24,000.00.
McLean testified that all of these statements were false. After signing the application, McLean gave it back to appellant, and it was mailed to the mortgage company in Florida.
The mortgage company also sent verification forms, which had been signed in blank by "McCall," to the applicant's employer (appellant) and certain banking institutions. The mortgage company received a verification form back from the Netherlands Inn, bearing the same type style as the loan application, indicating that "McCall" had been employed there as a manager for three years at a current salary of $2,000.00 per month, and that he was being transferred to Tampa, Florida, effective September 1, 1979. Then, using the information contained on the loan application and the verification forms, the mortgage company prepared an application for Mortgagor Approval and Commitment for Mortgage Insurance, for submission to the FHA. John Gaskin, then acting chief of mortgage credit at the Tampa, Florida, insuring office of the FHA, Department of Housing and Urban Development, reviewed and approved the application, and issued a commitment for mortgage insurance. Gaskin testified that he would not have issued the commitment had he known that the applicant's name was not Theodore J. McCall and that the applicant did not intend to occupy the property as a permanent residence. Gaskin testified that had he known that certain of the other statements were false, it would have been significant in his decision whether to approve the loan, but that the statement about the 1974 Mercedes-Benz would not have been significant if the applicant had "reasonable transportation."
After the closing on the Florida house, appellant told McLean that they would have to rent it. Posing as Mr. McCall, appellant rented the house to a third party. Then appellant, his brother, Charles Keefer (a/k/a Chuck Galloway), Charles Keefer's wife, and McLean went to a bank in Clearwater where, according to McLean, appellant had him sign a deed transferring the house to B.J. Galloway, under threat of exposing McLean to California authorities. McLean received no money for the transaction.
Before going to Florida, appellant had made an offer to purchase a house in East Grand Rapids, Michigan, and signed the purchase agreement "G.H. Keefer for Ted McCall." 2 After the owners made a counteroffer, appellant brought McLean to see the house, and McLean signed the counteroffer in the "McCall" name.
On August 31, 1979, appellant and McLean went to a mortgage company in Grand Rapids to apply for a FHA insured mortgage loan on the house in East Grand Rapids. Appellant answered most of the loan officer's questions, claiming to be McLean's business manager. The application contained the following false statements:
1. That the mortgagor's name on said property was Theodore J. McCall;
2. That the mortgagor would be the occupant of the property;
3. That the mortgagor was the manager of the Netherlands Inn in Holland, Michigan;
4. That the mortgagor had been employed at the Netherlands Inn for three years;
5. That the mortgagor's monthly income was $2,750.00;
6. That the mortgagor owned personal and household goods worth $15,000.00;
7. That the mortgagor owned a 1974 Ford automobile worth $2,000.00; and,
8. That the mortgagor did not own other real estate.
Verification forms were sent out, and the mortgage company received an employment form from the Netherlands Inn verifying the employment information on the application. The mortgage company then prepared the FHA application for Mortgagor Approval and Commitment for Mortgage Insurance, including the information listed on the loan application. McLean alias Theodore John McCall, signed the FHA application on September 19, 1979, without reading it, and it was submitted to the FHA office in Grand Rapids.
Mildred Scanlon, then a mortgage loan processor with the FHA, reviewed the mortgage application for the property in East Grand Rapids, and issued a commitment for mortgage insurance. She testified that she would not have issued the commitment if she had known that the applicant's name was not Theodore J. McCall, and that it would have been significant if she had known of the falsity of the statements regarding the manager position, length of employment, income, and value of personal goods. Mrs. Scanlon testified that the statement about the ownership of a 1974 Ford was not significant in this particular instance because, in response to FHA's inquiry regarding an outstanding automobile loan, the mortgage company had informed the FHA office that the loan was for a 1979 Oldsmobile which had been omitted from the application. 3 She testified that if the applicant owned neither a 1974 Ford nor a 1979 Oldsmobile, it would have been significant because she would have wondered how the applicant could have commuted to work in Holland from Grand Rapids. Mrs. Scanlon also testified that it would have been significant if she had known that the applicant had just obtained another FHA occupant mortgage for a house in Florida.
The sale of the East Grand Rapids property was closed on October 25, 1979, with McLean signing the closing documents and appellant providing the check for closing costs. A deed to McCall was recorded November 1, 1979, but McLean testified that he never received the deed. On November 1, 1979, McLean signed a deed transferring the property to B.J. Galloway. McLean received nothing for the property.
It is necessary to describe the procedural history of this lawsuit in some detail in order to do justice to the appellant's speedy trial claim.
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