U.S. v. Oplinger

• Decision Date: 14 July 1998
• Docket Number: No. 97-30110,97-30110
• Parties: 98 Cal. Daily Op. Serv. 5503, 98 Daily Journal D.A.R. 7697 UNITED STATES of America, Plaintiff-Appellee, v. William A. OPLINGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1061

150 F.3d 1061

98 Cal. Daily Op. Serv. 5503, 98 Daily Journal

D.A.R. 7697

UNITED STATES of America, Plaintiff-Appellee, v. William A. OPLINGER, Defendant-Appellant.

No. 97-30110.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 1998.

Decided July 14, 1998.

Barnett N. Kalikow (argued), Olympia, Washington, for the defendant-appellant.

Leonie G.H. Grant, Assistant U.S. Atty. (argued), Katrina C. Pflaumer, United States Attorney, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Jack E. Tanner, Senior District Judge, presiding. D.C. No. C96-5366FDB-001(JET).

Before: BROWNING and O'SCANNLAIN, Circuit Judges, and ALFREDO MARQUEZ, ^* Senior District Judge.

O'SCANNLAIN, Circuit Judge:

Among other issues presented to us by this appeal from conviction and sentence for bank fraud, we are asked to re-examine whether the privilege against self-incrimination extends to out-of-court pre-arrest statements made to private individuals.

I

Oplinger was employed as supply coordinator for the Heritage Bank ("Heritage") in Olympia, Washington, from March 1988 through May 1995. He was responsible for the purchase and distribution of supplies for Heritage's main office in Olympia, as well as its six branch offices. Oplinger purchased supplies from a number of different vendors, including Price/Costco ("Costco"), a membership-based warehouse business with numerous stores in western Washington. Most of the vendors from whom Heritage purchased supplies were credit vendors who billed Heritage directly. Costco was Heritage's only cash vendor. Heritage had special accounting requirements for cash purchases, and all cash purchases Oplinger made required prior approval. Oplinger was the only Heritage employee who made purchases from Costco.

From approximately May 1, 1993, to May 18, 1995, Oplinger engaged in a pattern of purchasing unnecessary office supplies from Costco and returning those supplies for cash refunds. Oplinger would then keep the cash refunds for his own purposes. Over the two years, Oplinger kept a total of $22,700.05 in refunds.

On May 17, 1995, Heritage became aware of Oplinger's activities when Anna Holland, a Costco employee, contacted Wendy Gauksheim, Oplinger's supervisor and Heritage's vice-president of corporate services, to inquire whether there was a problem with Costco's merchandise in light of the volume of Heritage's returns. Upon request, Holland provided Gauksheim with documentation demonstrating that Heritage had been returning thousands of dollars worth of merchandise.

On May 18, 1995, Gauksheim, along with John Pearry, another Heritage officer, met with Oplinger to question him about the Costco returns. When Gauksheim confronted Oplinger with what she had learned from Costco, Oplinger explained that he had occasionally received and returned defective merchandise to Costco. Gauksheim responded that the Costco records showed returns totalling several thousand dollars, far more than an "occasional" return, and asked him what he had done with the money. At this point, Oplinger leaned back in his chair, placed his hands over his eyes and said he did not know. He did not elaborate further when Gauksheim told him that he would be fired if he was unable to account for the money or when Pearry informed him that Heritage's regulators and the Federal Bureau of Investigation ("FBI") would have to be notified. Oplinger just repeated that he did not know. Gauksheim then fired Oplinger.

Costco refund logs documented 76 separate return transactions between May 1, 1993 and May 18, 1995, involving hundreds of separate items. The average size of the cash refund was approximately $300. Out of the hundreds of items returned, Costco identified only two or three that were damaged or defective. Costco salvage logs and computer inventory records demonstrated that, during the relevant time, it did not experience any quality problems with the items Oplinger had been returning on a regular basis.

A federal grand jury in the Western District of Washington returned an indictment against Oplinger charging him with twenty-one counts of bank fraud in violation of 18 U.S.C. § 1344, each representing a separate return transaction. Oplinger's first trial was before Judge Franklin D. Burgess. Oplinger testified that he used the refunds to purchase replacement merchandise from Heritage's other vendors, primarily Office Depot. Oplinger offered no documents or witnesses to corroborate his testimony. Nonetheless, the jury was unable to reach a verdict and Judge Burgess declared a mistrial.

The matter was reassigned to Senior Judge Jack E. Tanner for a second trial. Oplinger did not testify at this trial. The government presented evidence demonstrating that it would have been unnecessary for Oplinger to use cash to purchase replacement goods at any of Heritage's other vendors, including Office Depot, because those vendors sold goods to Heritage on credit. The jury convicted Oplinger of all twenty-one counts and Judge Tanner sentenced him to twenty-one months imprisonment, to be followed by a four-year term of supervised release. Judge Tanner applied a two-point sentence enhancement for abuse of a position of trust and another two-point enhancement for obstruction of justice. Oplinger was immediately remanded into custody.

Oplinger timely appealed.

II

Oplinger first claims that the evidence was insufficient to support his conviction for bank fraud pursuant to 18 U.S.C § 1344. ¹ Specifically, Oplinger maintains that the government failed to present any evidence demonstrating that he converted bank funds to his own use.

In order to establish a violation of 18 U.S.C. § 1344, the government must prove beyond a reasonable doubt that Oplinger knowingly (1) engaged in a scheme ² to defraud a federally chartered or insured financial institution, or (2) participated in a scheme to obtain money under custody or control of a federally chartered or insured financial institution by means of material false statements or representations. See 18 U.S.C. § 1344; United States v. Nash, 115 F.3d 1431, 1436 (9th Cir.1997); United States v. Cloud, 872 F.2d 846, 850 (9th Cir.1989). The government need not prove that a defendant actually profited from his crime or that a bank suffered an actual loss. See United States v. Mason, 902 F.2d 1434, 1442 (9th Cir.1990) ("[W]e conclude a federally supported financial institution need not incur a 'loss' in order to be a victim of 'false or fraudulent pretenses, representations, or promises.' "); see also United States v. Moede, 48 F.3d 238, 242 (7th Cir.1995) (holding that personal benefit to defendant not required to support conviction under bank fraud statute; sufficient that defendant intended to cause actual or potential loss to financial institution).

Were we to adopt the interpretation urged by Oplinger, 18 U.S.C. § 1344 would only permit punishment of the "loss" rather than the conduct that led to or could lead to a loss. Such a narrow construction was not intended by the statute. See Mason, 902 F.2d at 1442. The government need only prove that Oplinger engaged in the conduct prohibited by 18 U.S.C. § 1344 with the requisite intent.

The evidence presented at trial demonstrated that, between May 1993 and May 1995, Oplinger knowingly engaged in a pattern of purchasing items that Heritage did not need and returning those items to the one vendor that would give him a cash refund. Oplinger engaged in seventy-six separate return transactions at Costco, returning hundreds of items he had previously purchased for Heritage. Oplinger received a cash refund of about $300 per transaction, aggregating a total of $22,700.05 over two years. With two or three exceptions, the merchandise Oplinger returned was in good, resalable condition. Moreover, Costco had no quality problems with the brands of items that Oplinger most regularly returned. There was no evidence that Oplinger returned any of the money to Heritage or purchased any replacement merchandise.

Viewing the evidence in the light most favorable to the prosecution, a rational jury could surely have found that Oplinger knowingly engaged in a scheme to defraud Heritage. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

III

Oplinger next argues that the government violated his privilege against self-incrimination and his right to due process by eliciting testimony regarding the May 18, 1995 meeting ³ with Gauksheim and Pearry and by commenting on that testimony during closing argument. ⁴ Oplinger claims he gave a partial answer to Gauksheim's inquiry regarding the refunded monies, but as soon as he became aware that the meeting was a "pretermination hearing" and that his answers would be reported to the FBI, he chose to remain silent. Oplinger claims that the government's reference to his "silence" was constitutional error because "non-custodial, pre-arrest, and investigatory assertions" of the right to remain silent are protected by the Fifth Amendment privilege against self-incrimination and the right to due process.

Although the Supreme Court has held that the government may comment on a defendant's pre-arrest silence for impeachment purposes, see Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), it has yet to rule on the constitutionality of the use of pre-arrest, pre-Miranda silence as substantive evidence of guilt. See id. at 236 n. 2, 100 S.Ct. 2124 ("Our decision today does not consider whether or under what circumstances pre-arrest silence may be protected by the Fifth Amendment."). Despite the reservation of this issue in Jenkins, however, we are not completely without guidance from the Court. In his concurrence in Jenkins, Justice Stevens wrote that he would have rejected the defendant's Fifth Amendment claim simply because the privilege against compulsory...