U.S. v. Sasser

• Citation: 971 F.2d 470
• Decision Date: 13 July 1992
• Docket Number: Nos. 91-6066,91-6111,s. 91-6066
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Hiram Stanley SASSER, II, Defendant-Appellant/Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 470

971 F.2d 470

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

Nos. 91-6066, 91-6111.

United States Court of Appeals Tenth Circuit.

July 13, 1992.

Gary Peterson, Oklahoma City, Okl., for defendant-appellant/cross-appellee.

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

Before LOGAN, SEYMOUR and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Hiram Stanley Sasser, II appeals his convictions by a jury of one count of conspiracy, in violation of 18 U.S.C. § 371, and eighteen counts of making false statements to the Department of Housing and Human Development (HUD) to obtain Federal Housing Administration (FHA) insured loans and aiding and abetting, in violation of 18 U.S.C. §§ 1010 and 2. The government cross-appeals the dismissal of count 20 of the indictment, which the district court held was barred by the statute of limitations. On appeal defendant challenges his convictions on several grounds: (1) insufficiency of the evidence on the eighteen false statement counts; (2) unlawful multiplicity of the eighteen false statement counts; (3) insufficiency of the evidence on the conspiracy count; and district court error in (4) refusing to give a specific unanimity instruction, (5) refusing to give a requested limiting instruction on the use of other crimes evidence, and (6) refusing to order disclosure of presentence reports under the Jencks Act.

I Facts

Defendant was a loan officer for the Talman Home Mortgage Corporation branch office in Oklahoma City, Oklahoma. In this position defendant attempted to find people to apply for loans through Talman, with respect to which he would receive commissions. The government alleged that defendant conspired with other individuals to fraudulently obtain investor mortgage loans insured by HUD, and to knowingly submit false documents to HUD in order to obtain those loans.

Bryn Gary, a codefendant in this case, was a real estate investor and general partner in Midwest City Homes II, Ltd., and Midwest City Duplexes III, Ltd. In 1983, Gary asked James Reilly, a realtor, to arrange for refinancing loans on some of the Midwest City properties. Reilly approached defendant to help obtain refinancing. Gary and his partnerships could not legally obtain FHA-insured mortgages because they owned more than seven properties in a contiguous subdivision. The defendants organized a scheme that involved arranging for "strawbuyers" to "purchase" properties from Gary and his partnerships without making the investment of their own funds required for obtaining FHA insurance. The strawbuyers then transferred the properties back to Gary and his partnerships.

In applying for the FHA insurance on mortgage loans, the lender and borrowers submitted documents to HUD indicating that the borrowers had adequate financial resources to make the mortgage payments. Upon the closing of the "sale," the lender submitted to HUD a settlement statement that stated the amount of earnest money deposits purportedly paid at the time the contracts of sale were executed. The settlement statements also stated the amounts of fees and charges the buyers purportedly paid at closing. In fact, the buyers did not pay any of the earnest money deposits or fees and charges reflected on the settlement statements. The evidence indicated that defendant knew that the buyers would not be making any investment in the property and would not pay any of the closing costs. The fictitious earnest money payments written into the settlement statements led HUD to believe that the buyers had made the necessary investment in the property.

Another document submitted to HUD after closing was a certificate of commitment, which included certifications by the buyers that all charges and fees collected from the buyers as shown on the settlement statement were paid by the buyers from their own funds. HUD relied on the accuracy of the information in this certificate, also, in issuing FHA mortgage insurance on the loans.

II Jurisdiction Over Government Cross-Appeal

We first address whether we have jurisdiction to review the government's cross-appeal of the district court's dismissal of count 20. The district court dismissed count 20 on February 7, 1991, and entered its order on that day. On February 11, the court entered the judgment of conviction on counts 1-19, and that same day defendant filed his notice of appeal. On March 13, 1991, within thirty days of defendant's notice but not of the dismissal order on count 20, the government filed notice of its cross-appeal. Defendant asserts that the cross-appeal was not timely, and therefore we do not have jurisdiction to hear the cross-appeal. The government contends that under Fed.R.App.P. 4(b) its notice of appeal was timely because it was filed within thirty days after defendant's notice of appeal. Rule 4(b) provides in part: "When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant."

The federal government may appeal an adverse judgment in a criminal case only if authorized by federal law. DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962) (federal government has no inherent right of appeal in criminal case, and grant of general appellate jurisdiction does not authorize such an appeal); United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892); see also Arizona v. Manypenny, 451 U.S. 232, 246-49, 101 S.Ct. 1657, 1666-68, 68 L.Ed.2d 58 (1981) (Sanges forecloses criminal appeal in federal court by federal, but not state, government unless express federal statute confers such right to appeal). For appeal authorization in the instant case the government relied upon 18 U.S.C. § 3731, which provides in pertinent part that "[i]n a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information." The statute also provides that "[t]he appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted." Id.

Defendant argues that the government did not meet the time requirement of § 3731, and that no Federal Rule of Appellate Procedure, including Rule 4(b), can extend the jurisdiction for appeal under § 3731. In United States v. Martinez, 681 F.2d 1248, 1254 (10th Cir.1982), we concluded that the time limit in § 3731 is jurisdictional and dismissed the government's late appeal. The government points out, however, that at the time Martinez was decided, both § 3731 and Rule 4(b) contained the same thirty-day filing requirement, and that Rule 4(b) was amended in 1988 to its present form, permitting government appeals to be filed within thirty days after a defendant has filed a notice of appeal. It argues that the later amendment of Rule 4(b) controls over the statutory language of § 3731.

It is true that in some respects the federal rules have the effect of statutes; 28 U.S.C. § 2072(b) states that although the federal rules shall not affect "any substantive right," "[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." The next subsection also permits the federal rules to define when a ruling is "final for the purposes of appeal under section 1291." Id. § 2072(c).

Thus, absent any further edification we would have to determine whether the thirty-day limitation period of § 3731 is substance or procedure. This seems resolved, however, by a disclaimer in the Federal Rules of Appellate Procedure itself, which states broadly, "These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals as established by law." Fed.R.App.P. 1(b) (emphasis added). We regard this as an acknowledgement by the rulemakers that in case of a conflict between a jurisdictional statute and the Rules of Appellate Procedure, the statute controls.

The government cites two other circuit decisions that appear to allow Rule 4(b) to modify the thirty-day requirement of § 3731. Both indicate that a district court can allow the government an extension of time for appeal under Rule 4(b) upon a showing of excusable neglect. United States v. Vastola, 899 F.2d 211 (3d Cir.), cert. granted and vacated on other grounds, --- U.S. ----, 110 S.Ct. 3233, 111 L.Ed.2d 744 (1990); United States v. Rothseiden, 680 F.2d 96, 98 (11th Cir.1982). Rothseiden is distinguishable on its facts. ¹ Neither case discusses the conflict between rule and statute, but simply assumes that Rule 4(b) applies to government appeals. ²

The government also argues there is no conflict between § 3731 and Rule 4(b). It points out that the thirty-day requirement in § 3731 is in the same sentence as the requirement that the appeal be diligently prosecuted. This, the government contends, supports the view that Rule 4(b)'s phrase "[w]hen an appeal by the government is authorized by statute" refers to the type of appeal (e.g., from an order dismissing an indictment, as in the instant case), but not to any statutory time limit to appeal. The government proposes that we deem that "noncompliance with the 30-day filing requirement of Section 3731 (as potentially extended by the provision of Rule 4(b)) causes the authority to appeal to lapse." Response of the United States to Defendant's Motion to Dismiss at 5. This seems to us a strained argument.

The government's attempt to find a way to take...