U.S. v. Vaughn

• Decision Date: 22 August 1986
• Docket Number: Nos. 83-1285,84-2299,s. 83-1285
• Citation: 797 F.2d 1485
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Douglas VAUGHN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1485

797 F.2d 1485

UNITED STATES of America, Plaintiff-Appellee, v. George Douglas VAUGHN, Defendant-Appellant.

Nos. 83-1285, 84-2299.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 11, 1986.

Decided Aug. 22, 1986.

Brian C. Leighton, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

Gregory S. Stout, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before SNEED, HALL, and KOZINSKI, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Defendant-appellant, George Douglas Vaughn, appeals from his convictions, following a jury trial, for conspiracy to import marijuana, 21 U.S.C. Secs. 952(a), 963, aiding and abetting the importation of marijuana, 21 U.S.C. Sec. 952(a) and 18 U.S.C. Sec. 2, making a false statement to a government agency, 18 U.S.C. Sec. 1001, and four counts of mail fraud, 18 U.S.C. Sec. 1341, and from the district court's order denying his 28 U.S.C. Sec. 2255 petition to modify or set aside his sentence. We affirm.

I

Emil Wasilowski, Brad Lano, and David Williams, all residents of Minnesota, initiated a plan to import marijuana from Mexico. Williams was responsible for securing an airplane that Wasilowski would pilot. Defendant-appellant Vaughn, an attorney, became involved in the importation scheme when he was introduced to Williams by Brad "Buddy" Lewis, a mutual friend. Vaughn was attempting to lease an airplane owned by Clarence Laughlin, and Lewis knew that Williams was in the market for an airplane. Vaughn ultimately provided Laughlin's airplane for use in the smuggling attempt, and Lewis provided the marijuana to Wasilowski, the pilot, in Mexico.

The government's case against Vaughn was based in large part on Williams' conflicting grand jury and trial testimony. Williams testified before the grand jury that he met with Vaughn and Lewis at Vaughn's home in Columbia, California, in the summer of 1980. Williams initially avoided attempts to "pin [Vaughn] down to a narcotics smuggling charge," saying that he had some fear for himself and his family if he testified against Vaughn. Ultimately, however, Williams testified that Vaughn knew at the time of this initial meeting that the airplane would be used to smuggle narcotics. Williams also recalled a discussion with Vaughn at the hangar regarding the benefit which certain medical stickers on the airplane would provide when the airplane was taken in and out of the country.

According to Williams, all three men went to the hangar to view the airplane during the first meeting. Vaughn and Williams reached a "vague" arrangement regarding Williams' use of the airplane, because Williams did not have sufficient funds to buy the airplane outright. Williams remembered discussions regarding a $5,000 down payment and the need to make the airplane available one weekend a month so that another lease arrangement could be honored. Williams testified, however, that there was no agreement regarding the length of the lease term, the rental fee, or the lessee's obligation to take out insurance.

Williams also testified before the grand jury regarding a second meeting with Vaughn in Columbia in October 1980. At this time Williams picked up the airplane keys and hangar keys from Vaughn, and provided Vaughn with information on Wasilowski's flying experience and his pilot's license number. Williams suggested to Vaughn that Wasilowski's right to possess the airplane should be documented so that Wasilowski could fly in and out of the United States. Vaughn provided Williams two blank sheets of stationery with his law firm letterhead. Williams testified that he took the blank sheets of letterhead to Wasilowski in Minnesota, had Wasilowski sign them, and mailed them back to Vaughn. Williams testified that even after this second meeting the agreement for the use of the airplane remained vague. The $5,000 down payment was never made, no firm agreement was reached regarding the amount or term of the lease, and no written agreement was drafted before the airplane was picked up by Wasilowski on October 23, 1980.

Wasilowski's trial testimony corroborated Williams' grand jury testimony, regarding the lease, by indicating that the lease was a "scam." Wasilowski testified:

Well, the--paper was going to be used for--for backup purposes in case something went wrong, and the people who were providing the aircraft would have--have some kind of assurances that the plane was properly leased. That was my understanding of it. At the time I signed, I really didn't think the paper would ever be used. I didn't believe it could be used, I thought it was silly.

At trial Williams recanted his claim that Vaughn knew the airplane was going to be used for smuggling marijuana at the time of the initial meeting, but admitted that "it wouldn't have taken ... Dick Tracy to figure it out." Williams explained the change in his story by stating that he had gotten caught up in his fear of Vaughn, but that upon reflection he was sure that Vaughn was not directly informed of the smuggling plans. Williams' statements before the grand jury regarding his meetings with Vaughn, including his statements about Vaughn's knowledge of the planned smuggling, were introduced at trial as prior inconsistent statements under Fed.R.Evid. 801(d)(1)(A). At trial Williams remembered having a discussion regarding the stickers on the airplane, but could not remember whether the discussion was with Vaughn. Williams' testimony regarding the lease was unchanged at trial.

The smuggling effort failed when Wasilowski was apprehended attempting to return to the United States with 250 pounds of marijuana on November 9, 1980. The airplane was seized. Vaughn then acted as Laughlin's attorney in seeking remission of the airplane. Vaughn filed a petition for remission under 19 C.F.R. Sec. 171.11, stating that Laughlin had no knowledge of the illegal activities and that the airplane was in Wasilowski's possession under a lease purchase agreement at the time of the illegal activity. Vaughn attached a copy of the lease which he had filled in on the blank letterhead Wasilowski had signed. The lease, dated October 16, 1980, provided for a six-month rental at $2,500 per month with a $5,000 down payment which would be applied against the final two-months' rent. The lease also specified that the lessee shall insure the aircraft for $50,000 and carry liability insurance of $100,000/$300,000. Vaughn later sent follow up letters regarding remission of the airplane to customs officials on three occasions.

II

We review the question of whether Vaughn is responsible for the statements in the lease and the petition for remission de novo, and the other legal errors asserted by Vaughn de novo. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

We will overturn a jury's verdict of conviction for lack of sufficient evidence only if no rational trier of fact could have found beyond a reasonable doubt that the defendant committed the offense in question. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The evidence is viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and the government is entitled to all reasonable inferences that might be drawn therefrom, United States v. Price, 623 F.2d 587, 591 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980).

III

Section 1001 prohibits the making of material false representations to a government agency regarding a matter within the agency's discretion. United States v. Carrier, 654 F.2d 559, 561 (9th Cir.1981); United States v. Valdez, 594 F.2d 725, 728-29 (9th Cir.1979). A statement is considered material if it has the propensity to influence agency action; actual influence on agency action is not an element of the crime. Valdez, 594 F.2d at 728-29. The statement must be made intentionally and with the knowledge that it is false, Carrier, 654 F.2d at 561, but the defendant need not know of the agency's jurisdiction and he need not intend to deceive, United States v. Yermian, 468 U.S. 63, 73, 104 S.Ct. 2936, 2942, 82 L.Ed.2d 53 (1984). Section 1001 also prohibits the knowing filing of any false document with a government agency. United States v. Benz, 740 F.2d 903, 910 (11th Cir.1984) (false charter agreement), cert. denied, --- U.S. ----, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985); Valdez, 594 F.2d at 728. Like a false statement, the false document must have the propensity to influence agency action. See United States v. Green, 745 F.2d 1205, 1208 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 259, 88 L.Ed.2d 266 (1985); United States v. Johnson, 530 F.2d 52, 54 n. 2 (5th Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 96, 50 L.Ed.2d 97 (1976).

The government proceeded on the theory that the statements in the petition for remission--that Wasilowski and Laughlin entered into a "Purchase Option, Lease Agreement" and that Laughlin did not know or have reason to know of Wasilowski's criminal record or that the airplane "would be used for the purpose that resulted in its seizure"--were knowingly false, and, in the alternative, that Vaughn attached the lease which he knew to be a sham. We conclude that the statements in the petition for remission and the lease agreement are properly attributable to Vaughn, and that there is sufficient evidence from which the jury could conclude that the lease and the statements in the petition for remission were materially false.

A

An attorney may incur criminal liability as a principal for documents he has prepared and submitted for his client. See United States v. Lopez, 728 F.2d 1359, 1361-63 (11th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 112, 83 L.Ed.2d 56 (1984); United States v. Librach, 520 F.2d 550, 552 (8th Cir.197...