U.S. v. Meuli

• Decision Date: 02 November 1993
• Docket Number: No. 93-3073,93-3073
• Citation: 8 F.3d 1481
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gene E. MEULI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1481

8 F.3d 1481

UNITED STATES of America, Plaintiff-Appellee, v. Gene E. MEULI, Defendant-Appellant.

No. 93-3073.

United States Court of Appeals Tenth Circuit.

Nov. 2, 1993.

Michael G. Katz, Federal Public Defender, Vicki Mandell-King, Asst. Federal Public Defender, Denver, CO, for defendant-appellant.

Randall K. Rathbun, U.S. Atty., Thomas G. Luedke, Asst. U.S. Atty., Topeka, KS, for plaintiff-appellee.

Before TACHA, BALDOCK, and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Gene E. Meuli was convicted of eight counts of making a false statement, 18 U.S.C. § 1001, and one count of filing a false income tax return, 26 U.S.C. § 7206(1). Defendant appeals his convictions on all counts, and the district court's imposition of a $1,000.00 fine, U.S.S.G. § 5E1.2. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Defendant obtained a series of loans from the Federal Land Bank, Kansas, ¹ and the Farmers Home Administration, a federal agency. These loans were secured by mortgages on Defendant's farm property in Kansas. Upon Defendant's defaults on these loans, the Federal Land Bank and the Farmers Home Administration obtained judgments foreclosing the mortgages. The two judgments obtained by the Federal Land Bank were in the amounts of $160,355.69 and $39,275.17. The subsequent sale of Defendant's property by the Farmers Home Administration was in the amount of $83,200.00.

In December 1989, Defendant mailed notices of bills due and payable and requests for taxpayer identification numbers to several bank officers of the Federal Land Bank at their home addresses. The worksheets attached to the statements reflected that Defendant based the bills on the earlier judgments obtained by the bank against Defendant. In January 1990, Defendant sent these same officers Internal Revenue Service Forms 1099s. In these forms, Defendant alleged that he had paid $287,123.32 in non-employee compensation to each bank officer. Like the amounts on the earlier bills, the amounts listed on the 1099 forms reflected judgments obtained by the bank against Defendant. On the face of the 1099 forms was the following notice:

This is important tax information and is being furnished to the Internal Revenue Service. If you are required to file a return, a negligence penalty or other sanction may be imposed on you if this income is taxable and the IRS determines that it has not been reported.

Upon receiving the 1099 forms from Defendant, the bank office contacted the bank attorney, who in turn notified the United States Postal Inspection Service and the Internal Revenue Service ("IRS"). In February 1990, Defendant sent 1096 forms to the IRS claiming that he had paid non-employee compensation to the bank officers. To the 1096 forms, Defendant attached copies of the 1099 forms that he had previously mailed to the individual officers.

On his 1989 tax return, Defendant claimed entitlement to a $1,000,000.00 refund. The return, signed by Defendant, inaccurately indicated that he had received income of $1,600,000.00 in 1989 through default judgments.

Upon receiving the complaint concerning the 1099 forms from the Federal Land Bank attorney, the IRS initiated an investigation of Defendant in March 1990. On July 6, 1990, pursuant to a separate investigation, IRS Inspector Dwight Boesee met with Dwayne Mellies, who was involved in a similar scheme, and informed Mr. Mellies that he was serving grand jury subpoenas on various individuals involved in the scheme. The evidence at trial indicated that Defendant and Mellies were acquainted with each other, had been seen together, and Defendant's signature appeared on sworn affidavits obtained by the IRS in the investigation of Mr. Mellies. On July 30, 1990, Inspector Boesee served Defendant with a subpoena for handwriting and fingerprint exemplars. Fifteen days prior to that, on July 16, 1990, Defendant completed and sent a corrected 1989 tax return to the IRS. On this amended return, Defendant stated that errors on his previous return were due to misinformed error. Defendant attached corrected 1096 and 1099 forms to this amended return.

Defendant's trial began on December 7, 1992. ² The case was submitted to the jury late in the afternoon on December 8. During the initial instructions to the jury, the court gave a unanimity instruction pursuant to Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The jury left for the day without deliberating to return on December 9. At the end of the day on December 9, the jury indicated to the court that they were having difficulty reaching a verdict. At that time, the court gave the following supplemental Allen instruction:

Members of the jury, I have your message that you're unable to reach a verdict on any of the counts in this case. I'm not ready to discharge you yet. I want you to work longer and hard on this case because it needs to be determined, if at all possible. I don't want anybody to give up an honest conviction in order to get a verdict, but I do want you to know we've been at it a day. That's a long time, I realize. In order [sic] words, we've had juries work a lot longer and a lot harder, so I do want you to return and work. I want to suggest to you, it might be better for you to recess, go home and get a fresh start tomorrow morning. If you want to work some more this evening that's fine. I would suggest, since you haven't been able to get together today, that you go home and get back tomorrow and start again. Which do you prefer?

The jury then recessed for the day and was instructed to return the next day at 9:30 a.m. Defendant did not object to this instruction. The jury returned the next day, and after obtaining responses to three notes it sent to the court, the jury returned a verdict of guilty on all counts.

The district court sentenced Defendant to concurrent six-month terms of imprisonment on each count, to be followed by two years supervised release. The court also imposed a fine of $1,000.00. U.S.S.G. § 5E1.2.

Defendant raises six issues on appeal. Defendant claims (1) the evidence was insufficient to sustain his convictions on counts five through eight, (2) the indictment was multiplicious in charging the same offenses in counts one through four as in counts five through eight, (3) Defendant was subjected to double jeopardy by multiple convictions on counts one through four and five through eight, (4) Defendant's convictions on all counts should be reversed because Defendant filed amended forms with the IRS, (5) the district court erred in giving an Allen instruction to the jury during the course of deliberations, and (6) the court erred in imposing a fine on Defendant.

Defendant's first claim is that the evidence was insufficient to sustain his convictions on counts five through eight. The 1099 forms mailed to the bank officers formed the bases of these counts. Defendant argues that any false statements contained in the 1099 forms were not material in that they were incapable of influencing IRS action. Materiality is a question of law we review de novo. United States v. Brittain, 931 F.2d 1413, 1415 (10th Cir.1991).

To prove a violation of 18 U.S.C. § 1001, the government must show that the defendant knowingly and willfully made a false statement regarding a material fact that is within the jurisdiction of a federal agency or department. Id. The false statement need not be made directly to the agency or department, United States v. Wolf, 645 F.2d 23, 25 (10th Cir.1981), and the government need not prove that the Defendant had actual knowledge of the federal agency jurisdiction. United States v. Yermian, 468 U.S. 63, 69 104 S.Ct. 2936, 2939, 82 L.Ed.2d 53 (1984). Section 1001 "does not limit its prohibition of falsification to matters which another statute or regulation requires be provided." United States v. Olson, 751 F.2d 1126, 1127 (9th Cir.1985). Finally, "[a] false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the tribunal in making a determination required to be made." Brittain, 931 F.2d at 1415 (citation omitted).

Defendant first argues that the false statements he made on the 1099 forms were not capable of influencing the IRS because the bank officers were under no obligation to forward that information because it was false. We reject this argument because § 1001 prohibits false statements whether or not another law requires the information be provided. We further note that to simply accept Defendant's argument would turn § 1001 on its head--i.e., Defendant would be ultimately relieved from liability for making a false statement because of the falsity itself.

Defendant also argues that the false 1099 forms mailed to the bank officers were not capable of influencing IRS action on their own without the subsequent filing of the 1096 forms and 1099 forms with the IRS. We disagree.

Defendant made the false statements on official IRS 1099 forms. The forms themselves contained a warning to the recipient that the information would be forwarded separately to the IRS, and if the recipient did not reflect this information in his income tax return, he did so at his peril. Given the importance of this information to the recipient, it is not only reasonably foreseeable, but inevitable, that the recipient would contact the IRS concerning these false statements. The bank officers in this case did, in fact, do so. It further follows that once put on notice, the IRS would initiate an investigation. Because the circumstances surrounding the false information that Defendant furnished the bank officers made it likely that they would contact the IRS, and because the false statements influenced the possibility that an IRS investigation would ensue, the false 1099 forms had the natural tendency or were capable of influencing the IRS, and were therefore material. See e.g., United States v. Hansen, 772 F.2d 940, 949 (D.C.Ci...