U.S. v. Moore

• Decision Date: 22 June 1994
• Docket Number: No. 93-5767,93-5767
• Citation: 27 F.3d 969
• Parties: 40 Fed. R. Evid. Serv. 1302 UNITED STATES of America, Plaintiff-Appellee, v. Jerry A. MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 969

27 F.3d 969

40 Fed. R. Evid. Serv. 1302

UNITED STATES of America, Plaintiff-Appellee, v. Jerry A. MOORE, Defendant-Appellant.

No. 93-5767.

United States Court of Appeals, Fourth Circuit.

Argued March 11, 1994.

Decided June 22, 1994.

ARGUED: Kenneth Joel Haber, Rockville, MD, for appellant. David Glenn Barger, Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Bill W. Bourland, Fairfax, VA, for appellant. Helen F. Fahey, U.S. Atty., Alexandria, VA, John M. Hodgens, Jr., Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, DC, for appellee.

Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINS and Judge MICHAEL joined.

OPINION

LUTTIG, Circuit Judge:

Appellant Jerry A. Moore was convicted by a jury of thirteen felony counts arising out of several schemes to obtain real estate loans and other economic opportunities by misrepresenting financial information. He challenges his convictions on numerous grounds. Finding no error below, we affirm.

I.

In March 1985, Moore prepared fraudulent income tax returns for Brandt Legg, who was seeking financing to purchase a commercial condominium to house his retail stamp business. Using Legg's actual tax returns as models, Moore drafted false 1982-84 income tax returns for both Legg and his business. After consulting with Legg as to what kinds of figures would be plausible, Moore completed the returns with concocted figures that overstated Legg's actual income by two to three times. He stamped the drafts "secret" and made clean handwritten copies of the returns. Contrary to Moore's instructions to copy the returns over in his own handwriting, Legg instead photocopied the returns, signed the copies, and then submitted them to the United Savings Association (USA) in support of his loan application. Relying on these documents, USA loaned Legg $230,000 to purchase the condominium. Moore, who held an option to buy the condominium and accepted a note in consideration of his option, received a $15,000 commission for brokering the deal.

In August 1985, Moore applied for a $76,000 loan from the United Savings Association in order to refinance a residential property that he owned. In support of his application, Moore submitted what purported to be copies of his 1982-84 federal income tax returns. These documents, however, overstated the income declared on his actual tax returns by four to seven times.

In late 1985, Moore purchased five commercial condominiums in a strip mall in Woodbridge, Virginia, from the mall's developer, Harry Vredenburg. Vredenburg had offered the units for sale for $800,000 and agreed to sell them to Moore at that price. However, in order to obtain financing for the full purchase price rather than just a percentage thereof, Moore persuaded Vredenburg to inflate the price shown on the sales contract. Although Moore was to pay Vredenburg only $800,000, the amount Vredenburg thereafter reported in his tax returns, the contract which Moore submitted to the United Savings Association and Arlington Bank falsely represented that the price was $1,000,000. Those banks loaned Moore a total of $750,000, seventy-five percent of the price shown on the sales contract. Several days before closing, Moore, having secured loans for only $750,000, offered Vredenburg three undeveloped residential lots to make up the difference. Vredenburg, who testified that he thought the lots were worth about $100,000, agreed. At the closing Vredenburg signed a back-dated declaration provided by Moore that represented that the lots were worth $250,000.

Moore bought a sixth condominium in the Woodbridge strip mall from Sean McCarthy in June 1986. Moore and his vendor again agreed to misrepresent the purchase price in order to allow Moore to obtain a larger loan. Although Moore was to pay McCarthy only $163,000, the settlement statement reflected a sales price of $220,000. Community Bank and Trust loaned Moore $176,000 which he used to buy the sixth unit from McCarthy.

In November 1988, Moore sold the six condominiums for $1,030,000. The fraudulently obtained loans he had used to buy the condominiums were paid off in full, and Moore received a settlement check for $37,290.90 reflecting his net proceeds from the sale. He deposited this check in a federally insured bank.

Moore reported his investment in the condominiums in his 1986, 1987, and 1988 federal income tax returns. In these returns, he falsely overstated the purchase prices of the condominiums and took commensurately inflated depreciation deductions.

In September 1990, Moore applied for a renewal of a $25,000 line of credit from the Sailors and Merchants Bank. The copy of his 1989 tax return that he submitted in support of his application showed that in 1989 he had had $116,116 in income. However, his actual 1989 tax return showed that he had had only $16,116 in income. At the same time, Moore also submitted financial statements to the Department of Defense supporting his application to serve as an individual surety for a prospective government contractor. These statements also falsely represented that he had $100,000 in income from Atlantic Investment Associates, Inc., and Atlantic Financial Investment Corporation when in reality, that income had not then been and was never realized.

In 1992, after Brandt Legg had implicated Moore in their 1985 bank fraud scheme, Moore, accompanied by counsel, was interviewed by an FBI agent, a postal inspector, and two Assistant United States Attorneys about his involvement in preparing Legg's false income tax returns. When shown the fraudulent tax returns which he had prepared for Brandt Legg, Moore falsely denied having prepared them or any other tax returns or financial statements for Legg. Moore also falsely denied that the handwriting was his.

In March 1993, Moore was charged with two counts of conspiracy, 18 U.S.C Sec. 371; five counts of bank fraud, id. Sec. 1344; one count of engaging in a monetary transaction in criminally derived property, id. Sec. 1957; three counts of filing false income tax returns, 26 U.S.C. Sec. 7206(1); and two counts of making false statements, 18 U.S.C. Sec. 1001.

Three weeks before his trial was to begin, Moore moved for a continuance on account of his health. The district court denied the motion. On the Friday before his Monday trial was to begin--the same day a new attorney joined as co-counsel--Moore renewed his motion, contending that he was physically and psychologically unable to stand trial and psychologically unable to assist in his defense. At the hearing held on the morning of trial, Moore submitted a letter from his psychiatrist stating the opinion that Moore was suffering anxiety and depression that impaired his ability to assist meaningfully in his own defense, and a letter from his cardiologist briefly describing a heart condition for which cardiac catheterization had been recommended. In the alternative to a continuance, Moore requested the scheduling of an evidentiary hearing at which his psychiatrist would be called to testify. After considering the government's offer of proof, to which the defense acceded, the court found that Moore was able to stand trial, and denied the continuance.

The jury convicted Moore on all charges. He was sentenced to five years imprisonment for the crimes committed before the effective date of the Sentencing Guidelines, and to a concurrent thirty-six month sentence for those committed after that date.

II.

Moore first contends that the district court erred in refusing to continue his trial on account of his mental and physical condition. A district court's decision to deny a continuance may be disturbed on appeal only for abuse of the broad discretion entrusted to it in such matters. See Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1615-16, 75 L.Ed.2d 610 (1983); United States v. Brown, 821 F.2d 986, 988 (4th Cir.1987). We do not review the court's decision de novo, but instead must determine only whether the court had before it sufficient evidence to support the exercise of its discretion. Id.; United States v. Zannino, 895 F.2d 1, 13 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).

More than sufficient evidence supported the court's findings that Moore was capable both of assisting in his own defense and of standing trial. In response to the government's proffered evidence of his ability to assist in his defense, Moore's counsel conceded that Moore had actively participated in readying his defense by contacting and interviewing witnesses, preparing documents, and working closely with his lawyers. Indeed, it was admitted that Moore had met with his lawyers and worked with them into the night on each of the three days before his trial began. J.A. at 115. The only evidence before the court to the contrary was a brief letter from a psychiatrist reporting that Moore was suffering from stress, anxiety, and depression of such proportions that his concentration and attentiveness were impaired and that medication had been prescribed. The psychiatrist's opinion that Moore was unable to participate meaningfully in his defense was, however, completely belied by Moore's admitted efforts in preparing for the trial. While it was no doubt true that Moore, facing trial on serious charges, was anxious and depressed, the court's conclusion that he was nonetheless capable of assisting in his defense and testifying on his own behalf was adequately supported by the evidence in the record. See United States v. Alexander, 869 F.2d 808, 811 (5th Cir.1989) (continuance properly denied where defendant suffered from acute anxiety, but had no disease or defect which would prevent him from testifying or assisting in his defense), cert. denied, 493 U.S. 1069, 110 S.Ct. 1110, 107 L.Ed.2d 1018 (1990). ¹ This conclusion was borne out by the court's observations during the first day of...