U.S. v. Taliaferro, s. 91-6372 and 92-6055

• Decision Date: 16 November 1992
• Docket Number: Nos. 91-6372 and 92-6055,s. 91-6372 and 92-6055
• Citation: 979 F.2d 1399
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul A. TALIAFERRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1399

979 F.2d 1399

UNITED STATES of America, Plaintiff-Appellee, v. Paul A. TALIAFERRO, Defendant-Appellant.

Nos. 91-6372 and 92-6055.

United States Court of Appeals, Tenth Circuit.

Nov. 16, 1992.

Timothy D. Leonard, U.S. Atty., and Vicki Zemp Behenna, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Gene Stipe and Robert K. McCune of Stipe, Gossett, Stipe, Harper, Estes, McCune and Parks, Oklahoma City, Okl., for defendant-appellant.

Before BRORBY and KELLY, Circuit Judges, and McWILLIAMS, Senior Circuit Judge.

McWILLIAMS, Senior Circuit Judge.

Counsel have indicated that oral argument of the case is not necessary and in their view would not materially assist this court in its resolution of the two appeals. After examining the briefs and appellate record, this panel agrees that oral argument would not materially assist the determination of the two appeals. The causes are, therefore, ordered submitted without oral argument. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9.

In the first count of a five-count indictment filed September 4, 1991, Paul A. Taliaferro was charged with making a material false statement on August 16, 1985, to the First National Bank of Temple, Oklahoma, a federally insured bank, for the purpose of influencing the action of the bank in making a loan to him, in violation of 18 U.S.C. §§ 1014 and 2.

In count two Taliaferro was charged with making a material false statement on December 19, 1985, to the First National Bank of Temple for the purpose of influencing the action of the bank in making a loan to him, in violation of 18 U.S.C. §§ 1014 and 2.

In count three Taliaferro was charged with making a material false statement on April 18, 1986, to the First Bank of Apache, Oklahoma, a federally insured bank, for the purpose of influencing the action of the bank in making a loan to him, in violation of 18 U.S.C. §§ 1014 and 2.

In count four Taliaferro was charged with making a material false statement on October 30, 1986, to the First National Bank of Temple, for the purpose of influencing the action of the bank in deferring the due date of a note in the amount of $98,460 made by him on December 19, 1985, in violation of 18 U.S.C. §§ 1014 and 2.

In count five Taliaferro was charged with making a false statement on or around September 15, 1987, to the Federal Deposit Insurance Corporation (FDIC) for the purpose of influencing the action of the FDIC in its debt negotiation with him, in violation of 18 U.S.C. §§ 1007 and 2. The fifth count identified the false statement as follows: "[T]he defendant submitted and caused to be submitted, a financial statement which failed to disclose the defendant's interest in farm machinery and motor vehicles, when, as the defendant well knew, he did own an interest in farm machinery and vehicles."

On September 19, 1991, Taliaferro filed a motion to dismiss the first three counts in the indictment on the ground that the offenses alleged in each of those three counts occurred more than five years prior to the return of the indictment on September 4, 1991, and that prosecution on all three counts were barred by the five-year statute of limitations provided in 18 U.S.C. § 3282.

In its brief in opposition to Taliaferro's motion to dismiss the first three counts of the indictment, the government pointed out that on August 9, 1989, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) wherein the statute of limitations for violations of 18 U.S.C. § 1014 was extended to ten years for all violations on which the five-year statute of limitations had not already run, and that as of August 9, 1989, the five-year statute had not run on any of the three counts.

In reply to the government's brief in opposition to Taliaferro's motion to dismiss counts one, two and three, counsel recognized that on August 9, 1989, Congress extended the statute of limitations for the offenses charged in counts one, two and three from five years to ten years. In the district court, counsel conceded that if Congress had merely extended the statute of limitations for the offenses charged in the first three counts of the indictment, "the Government would be correct in its contention that an 'extension of the statute of limitations may be retroactively applied without running afoul of the ex post facto clause.' " Counsel stated, however, that in enacting FIRREA, Congress did more than merely extend the statute of limitations for the offenses charged in the first three counts of the indictment when it also increased the penalty for the offenses charged in the first three counts of the indictment. Counsel suggests that with 18 U.S.C. § 3293 Congress attempted to apply the enhanced penalties retroactively, which Congress clearly cannot do without running afoul of the ex post facto clause, and that such an attempt defeats Congress' effort in § 3293 to retroactively apply the extended statute of limitations.

On October 28, 1991, the district court denied Taliaferro's motion to dismiss the first three counts in the indictment. On November 7, 1991, Taliaferro filed a notice of appeal of that order. The notice of appeal appears in this court as No. 91-6372.

At the same time, Taliaferro asked the district court to stay the commencement of his trial, pending appeal. The motion to stay the trial was denied, and the trial commenced on November 12, 1991. A jury convicted Taliaferro on all five counts of the indictment.

On December 2, 1991, the government filed in this court a motion to dismiss appeal No. 91-6372, contending that the denial of Taliaferro's motion to dismiss the first three counts in the indictment was not a final appealable judgment. On December 9, 1991, Taliaferro filed a motion to abate appeal No. 91-6372 until such time as he could file an appeal from his conviction and sentence. On January 27, 1992, Taliaferro was sentenced to six months imprisonment on count one and imposition of sentence on counts two, three, four and five was suspended and Taliaferro was placed on probation for eighteen months and ordered to complete two hundred hours of community service. On January 31, 1992, Taliaferro filed a second notice of appeal based on errors occurring during his trial. That appeal appears in this court as No. 92-6055.

On March 4, 1992, this court ordered that the two appeals be consolidated in this court for the purposes of briefing, record and submission. We shall treat these two appeals separately, but will treat the second appeal first.

No. 92-6055

This is the appeal from the judgment of conviction and the sentence imposed thereon. In this appeal Taliaferro asserts three grounds for reversal: (1) the district court erred in submitting counts one, two and three to the jury because the government did not meet its burden of proof, and the evidence was insufficient to support the jury's verdict finding Taliaferro guilty of those three counts; (2) the district court erred in submitting count five to the jury because the misrepresentation was not material; and (3) prosecution on the first three counts of the indictment is barred by the five-year statute of limitations, and application of the ten-year statute violates the ex post facto clause of the Constitution. We shall consider the statute of limitations issue first.

1. Statute of Limitations

As indicated, in the district court counsel for Taliaferro conceded that if Congress had merely retroactively applied the new ten-year statute of limitations to those offenses occurring before the effective date of the 1989 amendments where the prior five-year statute of limitations had not run, such would not violate the ex post facto clause. ¹ It was counsel's further position in the district court that Congress also attempted to make the enhanced punishment for 18 U.S.C. § 1014 retroactive in effect, and that such an attempt, being clearly violative of the ex post facto clause, had the effect of rendering the congressional effort to make retroactive application of the new ten-year statute of limitations violative of the ex post facto clause as well. However, in this court, counsel does not pursue this particular argument and merely argues that retroactive application of the new ten-year statute alone violates Taliaferro's rights under the ex post facto clause of the Constitution. U.S. Const. art. I, § 9, cl. 3.

Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, § 961(l )(3), 103 Stat. 501; 18 U.S.C. § 3293 note, provides as follows:

The amendments made by this subsection [§ 3293] shall apply to an offense committed before the effective date of this section [August 9, 1989], if the statute of limitations applicable to that offense under this chapter had not run as of such date.

This law clearly states that Congress intended that the extended statute of limitations (ten years) be applied to offenses occurring before August 9, 1989, where the prior statute of limitations (five years) had not run prior to August 9, 1989. We do not read § 961(l )(3) as a legislative attempt to apply the enhanced punishments of 18 U.S.C. § 1014 to offenses occurring prior to the date of enactment. All agree that such would violate the ex post facto clause. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Be that as it may, there remains the question of whether there can be retroactive application of the extended statute of limitations consistent with the ex post facto clause of the Constitution.

Our reading of the cases bearing on this issue leads us to conclude that the application of an extended statute of limitations to offenses occurring prior to the legislative extension, where the prior and shorter statute of limitations has not run as of the date of such extension, does not violate the ex post facto clause. See United States v. Powers, 307 U.S. 214, 217-18, 59 S.Ct. 805, 807, 83 L.Ed. 1245, reh'g denied, 308 U.S. 631, 60 S.Ct. 66...