U.S. v. Morgan
| Citation | 376 F.3d 1002 |
| Decision Date | 23 July 2004 |
| Docket Number | No. 02-50617.,No. 02-50603.,02-50603.,02-50617. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Darrick MORGAN, aka D. Morgan, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tyra Goodman, aka Tyra Johnson, aka T. Eileen Johnson, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Alissa Sawano Peterson, Irvine, CA, and Myra D. Mossman, Santa Barbara, CA, for the defendants-appellants.
Michael J. Raphael, Assistant United States Attorney, Criminal Appeals Section, Los Angeles, CA, for the plaintiff-appellee.
Appeals from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. Nos. CR-01-01300-MLR-01, CR-01-01300-MLR-02.
Before: D.W. NELSON, GIBSON,* and GRABER, Circuit Judges.
Defendant Tyra Goodman challenges her convictions for bank fraud and making false statements to a federally insured financial institution, stemming from the unauthorized acquisition and use of several business lines of credit. Goodman argues that the trial court erred in allowing the government to introduce a bankruptcy petition into evidence and in questioning her extensively from the bench. For the reasons stated below, we affirm Goodman's convictions. Co-defendant Darrick Morgan does not challenge his convictions but challenges the sentence and restitution order, arguing that the court erroneously included interest and finance charges in its calculation of the total amount of loss for both sentencing and restitution. Goodman joins in Morgan's challenge to the sentence, but does not challenge the district court's restitution order in her case. We hold that, in the light of a 2001 amendment to the United States Sentencing Guidelines ("U.S.S.G."), the district court erred in including interest and finance charges in its calculation of actual loss for sentencing purposes. Therefore, Defendants' sentences must be vacated and the case remanded for resentencing. The sentencing court's restitution orders, however, were proper and are affirmed.
In 1995, Goodman, along with members of her family, purchased a travel agency named Palos Verdes Travel. Almost immediately, the travel agency began to experience financial difficulties. Later that year, Morgan purchased a "partnership" in the travel agency. While Goodman concentrated on the travel agency business, Morgan tried to attract investors for a movie about the life of singer Marvin Gaye and for various real estate projects. In 1996, with their financial difficulties mounting, Goodman and Morgan moved the travel agency from Palos Verdes to El Segundo and changed the travel agency's name to "Elite Travel." Elite Travel closed its doors in 1997.
From January 1996 through at least June 1997, Morgan and Goodman executed a scheme to obtain business lines of credit from two banks by using social security numbers and other personal information that they misappropriated from four unsuspecting individuals. Using that information, Defendants completed written or telephonic applications for business lines of credit in the name of a fictitious company allegedly owned by one of the four individuals and then forged that individual's name on an "Acceptance Certificate." When a bank requested additional documentation, Defendants sent fictitious documents such as tax forms, partnership agreements, and articles of incorporation. The business lines of credit were, in essence, unsecured loans for which the falsely identified business owner was personally liable. On the loan applications, Defendants listed themselves as authorized users of the accounts and asked that credit cards be issued in their names.
Once the cards arrived, Defendants used the lines of credit for their personal benefit, frequently charging expenses well beyond the limit of a particular line of credit. In total, six lines of credit were obtained in the names of four fictitious companies. The losses associated with those lines of credit totaled $533,529.83. Of that total, interest accounts for $32,729.62 and finance charges account for $8,414.01 (for a total of $41,143.63), while actual funds disbursed account for $492,386.20.
Following an investigation, a grand jury charged Defendants with bank fraud and making false statements to a federally insured financial institution, in violation of 18 U.S.C. §§ 1344(1), 1014, and 2(b). Defendants were tried jointly. At the jury trial, the government introduced testimony from all four individuals whose names and social security numbers were used to obtain the lines of credit. The witnesses denied giving Defendants permission to forge their signatures on loan applications, to obtain the business lines of credit, or to use those lines of credit for personal expenses. The forged documents that Defendants used to obtain the lines of credit were also introduced into evidence. Further, Goodman testified that she had used the lines of credit to make various purchases and cash withdrawals for personal expenses.
On cross-examination, the government asked Goodman whether she owed more than $100,000 to creditors in 1996. When Goodman denied owing "a lot of money" to creditors, the government attempted to refresh her recollection with a 1996 bankruptcy petition that she had filed, according to which creditors held secured claims of $129,000 against Goodman. Goodman testified that the information on the bankruptcy petition was incorrect. The government then introduced the bankruptcy petition into evidence.1 Goodman explained that the bankruptcy petition had been filed, but later withdrawn.
After the government concluded its cross-examination of Goodman, the court questioned Goodman at some length about the involvement of Sherrie Bowler with the fictitious company "Elite Investments." Bowler co-signed for a loan that Defendants made to Bowler's friend. The $12,000"loan" was actually a cash transfer from a business line of credit secured by Bowler's personal assets. The court asked Goodman whether Bowler understood the nature of her involvement with Elite Investments, whether Bowler expected to benefit from that arrangement, and how Goodman spent the money withdrawn from the Elite Investments accounts. Goodman's lawyer did not object to that questioning.
The jury found both Defendants guilty of all counts, and the court sentenced them in November 2002. The court concluded that Defendants' conduct resulted in $533,529.83 in actual losses to the victim banks. Under the 1995 version of U.S.S.G. § 2F1.1, that amount of loss results in a 10-level increase in the base offense level.2 Relying on a total offense level of 18, the court sentenced each Defendant to 27 months' imprisonment and 5 years' supervised release. The court also ordered restitution in the amount of $533,529.83, holding Defendants jointly and severally liable for that amount. These timely appeals followed.
We review for abuse of discretion a district court's decision to admit impeachment evidence. United States v. Geston, 299 F.3d 1130, 1137 (9th Cir.2002).
With respect to the judge's questions of a witness, "[a] federal judge has broad discretion in supervising trials, and his or her behavior during trial justifies reversal only if it abuses that discretion." United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988). When a defendant fails to object during trial, we review for plain error an allegation of judicial misconduct. United States v. Springer, 51 F.3d 861, 864 n. 1 (9th Cir.1995).
We review de novo a district court's interpretation and application of the Sentencing Guidelines. United States v. Garcia, 323 F.3d 1161, 1164 (9th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 842, 157 L.Ed.2d 720 (2003). Provided that a restitution order is within the bounds of the statutory framework, we review that order for abuse of discretion. United States v. Riley, 335 F.3d 919, 931 (9th Cir.2003).
Goodman first argues that her conviction must be reversed because the court improperly allowed the government to introduce evidence of "other acts" in the form of her 1996 bankruptcy petition. See Fed.R.Evid. 404(b).3 However, the government did not introduce the petition as evidence of an act at all. Rather, the challenged evidence came in as a statement used to rebut Goodman's denial of her "personal credit problems" in 1996:
Q. [by the government] And whatever the causes of the problems may have been, the problem essentially was that you owed a lot of money personally at that time?
A. Not a lot of money, no.
Q. Isn't it true, Miss Goodman, that on May 24th, 1996, you owed well over $100,000 to creditors?
A. Not to my knowledge.
Once Goodman denied owing over $100,000 to creditors,4 the bankruptcy petition — containing a prior, sworn, contradictory statement made by a party witness — became admissible under three evidentiary rules. See Fed.R.Evid. 613 (); Fed.R.Evid. 801(d)(1)(A) (); Fed.R.Evid. 801(d)(2) (); see also United States v. Parsons, 646 F.2d 1275, 1277-78 (8th Cir.1981) ().
Goodman relies on United States v. Bensimon, 172 F.3d 1121 (9th Cir.1999). We find the analogy unpersuasive. In that case, we reaffirmed our rejection of "`[p]overty as proof of motive'" and stated that "a petition for bankruptcy is not in and of itself evidence of a specific and immediate financial need such that it would be relevant to showing [a defendant's] motive." 172 F.3d at 1129 (quoting United States v. Mitchell, 172 F.3d 1104, 1108-09 (...
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