U.S. v. Sasser

• Decision Date: 03 September 1992
• Docket Number: 91-6340 and 91-6359,Nos. 91-6205,91-6263,s. 91-6205
• Parties: 36 Fed. R. Evid. Serv. 830 UNITED STATES of America, Plaintiff-Appellee, v. Hiram Stanley SASSER, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1544

974 F.2d 1544

36 Fed. R. Evid. Serv. 830

UNITED STATES of America, Plaintiff-Appellee, v. Hiram Stanley SASSER, II, Defendant-Appellant.

Nos. 91-6205, 91-6263, 91-6340 and 91-6359.

United States Court of Appeals Tenth Circuit.

Sept. 3, 1992.

Gary Peterson, of Oklahoma City, Okl., for defendant-appellant.

Richard A. Friedman (Timothy D. Leonard, U.S. Atty., and Karen A. Morrissette, Deputy Chief, Fraud Section, Criminal Div., Dept. of Justice, were with him on the brief), Atty., Appellate Section, Criminal Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before SEYMOUR and TACHA, Circuit Judges, and BENSON, District Judge. ^*

TACHA, Circuit Judge.

This appeal arises out of appellant Hiram Stanley Sasser's conviction on one count of conspiracy under 18 U.S.C. § 371, one count of mail fraud under 18 U.S.C. § 1341, and seven counts of making false statements to the Department of Housing and Urban Development (HUD) under 18 U.S.C. § 1010. On appeal, Sasser raises the following eight arguments: (1) his prosecution for conspiracy, mail fraud and false statements was barred by the Double Jeopardy Clause of the Fifth Amendment; (2) the government was unlawfully relieved of its burden of proof, on the scienter element of the charged offenses, by a jury instruction that permitted Sasser's knowledge to be proven by a showing of conscious purpose to avoid learning the truth; (3) the district court incorrectly refused jury instructions supporting the defense that the prices specified in written sales contracts were correct as a matter of state law; (4) the government's prosecution was barred by the Paperwork Reduction Act; (5) the scienter requirement for mail fraud was improperly relaxed by the jury instructions; (6) the district court erred in admitting evidence that constituted an adverse comment on Sasser's exercise of his Fifth Amendment privilege against self-incrimination; (7) there was insufficient evidence to support a conspiracy conviction against Sasser when none of the other charged conspirators was found guilty; and (8) the district court lacked jurisdiction to amend its written judgment after a notice of appeal had been filed. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

The government introduced the following evidence at trial. Sasser conspired with co-defendants Charles and John Bizzell to secure seven HUD-insured mortgage loans by knowingly and willfully submitting false documents to HUD ¹ in connection with those loans. During this conspiracy, Sasser was employed as a loan officer for the Talman Home Mortgage Corporation, an approved lender in the HUD-FHA mortgage insurance program that operated in the Oklahoma City area. The Bizzells were real estate developers in the area of Midwest City, Oklahoma and were familiar with the HUD-FHA mortgage insurance program.

During late 1985, Sasser arranged to purchase seven single-family homes from the Bizzells. These homes were to be financed through Talman. The sales contracts for each of these homes falsely stated that the sales price was the appraised value of the property. However, Sasser arranged with the Bizzells to pay them only the amount of the FHA-insured financing that Talman could provide for the purchase of each property. The documents associated with the sale falsely indicated that Sasser paid his required fifteen percent investment in the form of cash deposits and cashier's checks brought to the closings of the seven properties; however, Sasser never in fact used any of his own money. Instead, the Bizzells supplied the funds that were used for the cashier's checks, and the cash down payments were fictitious. ²

When HUD began to investigate these transactions, the Bizzells initially told an investigator that Sasser had paid the cash down payments and supplied the cashier's checks from his own funds. Later, the Bizzells confessed to the investigator that Sasser had not paid the amounts represented in the documents as coming from his own funds.

Following that admission, however, Sasser and the Bizzells apparently concocted a cover story that the amounts shown on the documents as paid by Sasser represented a fifteen to seventeen percent real estate commission earned by Sasser on the sales. These commissions supposedly were credited to Sasser by the Bizzells to eliminate the need for him to pay any of his own money to complete the transactions. The documents associated with the sales and loans did not disclose any such real estate commissions.

In order to obtain FHA insurance for a mortgage loan on each property, Sasser caused Talman to submit an application for commitment for insurance to HUD. Supporting documentation, including verification-of-deposit forms, accompanied the application. These documents represented that Sasser, as the borrower, possessed adequate financial resources to complete the purchase of the property. They also indicated that Sasser would make the required investment of his own funds to complete the purchase. The application for commitment for insurance included a blank requesting that the borrower state the portion of his own assets in "Cash (Including deposit on purchase)" used to purchase the property. In this blank, Sasser stated $61,406, an amount that included a fictitious $50,000 certificate of deposit allegedly held at the First Republic Trust Company of Dallas, Texas.

Sasser arranged for Mark McFerrin, on behalf of First Republic Trust Company, to verify that certificate of deposit on a verification-of-deposit form, which later was sent through the mails to Talman and then to HUD. The evidence indicated that Sasser never held a $50,000 certificate of deposit at First Republic. Testimony at trial indicated that First Republic was dormant at the time, did not have authority to issue certificates of deposit, and never issued any certificates of deposit. In addition, Sasser's tax accountant testified that Sasser never reported interest from any such certificate of deposit on his 1985 or 1986 tax returns. The evidence also revealed that, several months prior to the date Sasser claimed to own the $50,000 certificate of deposit, he filled out an application to refinance his personal home. Sasser did not disclose existence of the certificate of deposit or of any comparably sized asset on the application. Finally, upon the liquidation of First Republic Trust Company, Sasser never filed any claim with the Texas state liquidator to recover $50,000, even though he maintained that the funds held in the certificate of deposit had been embezzled by that company.

The application for commitment for insurance on each property also included a blank requesting the borrower to fill in the "amount" required to "purchase existing home." In this blank, Sasser falsely stated an amount equal to the appraised value of the property. In another blank requesting the amount of "cash from borrower" and "other credits," Sasser falsely stated amounts that he did not pay himself. However, these amounts created the impression that the amount borrowed, and insured by HUD, would not exceed eighty-five percent of the properties' appraised value. Sasser signed the borrower's certification on the back of the application for commitment for insurance. This certification included the statement, "The Borrower certifies that ... the information in Section II is true and correct to the best of his/her knowledge and belief."

Sasser made timely payments on all seven properties. After applying for five new HUD-insured loans, Sasser traded the five properties he bought from John Bizzell to Charles Kent Bizzell for five different properties. Charles Bizzell also credited Sasser with an $8,000 trade-in allowance for each of the five properties. Charles Bizzell then resold the properties to five individuals who assumed the HUD-insured loans by simple assumption. Each property subsequently went into foreclosure.

On February 22, 1990, Sasser was indicted for conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (Count 1), mail fraud in violation of 18 U.S.C. § 1341 (Count 2), making false statements to HUD for purposes of obtaining federally insured loans in violation of 18 U.S.C. § 1010 (Counts 3-16), and making false statements to a federal agency in violation of 18 U.S.C. § 1001 (Count 21). After a jury trial, Sasser was convicted on the conspiracy count, the mail fraud count, and seven of the counts charging false statements to HUD (Counts 3-9). After the jury did not reach a verdict on the remaining counts, the government dismissed those counts with prejudice.

In a written judgment, the district court sentenced Sasser to concurrent two-year prison terms on counts 3-9, to run consecutively with a one-year sentence that Sasser had received for an earlier conviction. On counts 1 and 2, the district court sentenced Sasser to four-year prison terms without any provision for a consecutive sentence, although such a provision had been made orally during the sentencing hearing. On October 11, 1991, Sasser filed his notice of appeal from the October 1 judgment. Five days later, on October 16, the district court entered an amended written judgment on its own initiative. The amended judgment stated that the four-year sentences on Counts 1 and 2 would be served consecutively to any other sentence. Sasser filed a notice of appeal from the amended judgment on October 28, 1991.

DISCUSSION

I.

Sasser argues that he was unlawfully subjected to double jeopardy by his trial and sentencing on all counts. Prior to the trial in this case, Sasser was convicted on a separate indictment of conspiracy and underlying substantive charges that involved criminal conduct in which Sasser, in his position as a loan officer, fraudulently facilitated acquisition of HUD-FHA financing on eighty-three properties. United States v. Gary, No. CR-90-101-W (W.D.Okla.1991), aff'd in part, rev'd in part, 971 F.2d 470 (10th...