U.S. v. Whitaker
| Decision Date | 08 June 1988 |
| Docket Number | No. 87-1689,87-1689 |
| Citation | 848 F.2d 914 |
| Parties | UNITED STATES of America, Appellee, v. Victor WHITAKER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ronald E. Jenkins, St. Louis, Mo., for appellant.
Kathianne K. Crane, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.
Victor D. Whitaker appeals his conviction of three counts of making false statements to an agency of the United States. We affirm.
On November 17, 1986, Whitaker was charged with two counts of mail fraud and three counts of making false statements to an agency of the United States, i.e., the Federal Deposit Insurance Corporation (FDIC). At trial, Whitaker was acquitted of the two counts of mail fraud and convicted of the three counts of making false statements. He was sentenced to concurrent terms of three years imprisonment and fined $10,000.00 on each count.
The charges resulted from an examination performed by the FDIC on Farmers and Merchants Bank of Huntsville, Missouri (Bank) and an earlier visitation at the institution. At the time of the visitation and the examination, Whitaker was president of the Bank.
In September of 1982, an FDIC examiner performed a visitation which lasted approximately one week. The purpose of the visitation was primarily to review changes in the Bank's loan portfolio since the last FDIC inspection, looking specifically at new loans made and at existing loans with large increases.
Early in the week of the visitation, the FDIC examiner was alerted by a confidential source to look at two loans which had been made to certain individuals. The first was a loan made to Dennis McQueen and Tom Cummings which at that time had an outstanding balance of $84,000.00. The second was a loan made to Linda and Russell Putnam which had an outstanding balance of $327,550.00.
During the course of the visitation, the FDIC examiner met with Whitaker and discussed approximately 25 of the Bank's loans. Among the loans discussed were those made to McQueen and Cummings and the Putnams. Although this discussion took place after the examiner had received the information from the confidential source, he did not ask Whitaker any more questions about the McQueen and Cummings and Putnam loans than he asked about the other loans. The examiner did not pursue the matter regarding these particular loans because he wanted to protect the source's confidentiality, and because none of the information Whitaker gave him regarding these loans seemed to warrant further inquiry.
In particular the examiner asked Whitaker about the nature of the business activity of McQueen and Cummings. Whitaker responded that McQueen was in the carpet business and Cummings was in the shoe business. The examiner then inquired about the purpose of the loan. Whitaker answered that the proceeds of the loan were to be used for business purposes, with "some" of the funds being used for "penny" stock. In truth, none of the funds were used for Cummings' and McQueen's businesses. All of the funds were used to purchase penny stocks and for related expenses. One of the penny stocks purchased with the proceeds was Totem Industries, Ltd., which company operated a silver mine in Canada. At the time the loan was made, Whitaker was on the board of directors of Totem. In fact, during most of 1982, Whitaker, McQueen, Cummings, the Putnams and others formed an investors group in an attempt to raise the price of Totem stock and eventually to obtain control of Totem.
The examiner asked Whitaker the same questions regarding the loan to the Putnams. Whitaker told the examiner that Mr. Putnam had recently opened a boat business and that the proceeds of the loan were for that business. In fact, the proceeds of the loan were used to purchase Totem stock.
In March of 1983, the FDIC examiner returned to the Bank to conduct a full bank examination. Again Whitaker was asked by the examiner what the loan to the Putnams was for, and again he replied it was for the Putnams' boat business.
As a result of these three statements to the FDIC examiner regarding the use of the proceeds of the loans, the three counts of making false statements to an agency of the government were brought.
Whitaker raises two arguments in support of reversal: (1) the false statements he made to the FDIC examiner were not material, and (2) the evidence was insufficient to support the jury's finding of guilt.
Whitaker was convicted of violating 18 U.S.C. Sec. 1001, which reads in part Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly or willfully * * * makes any false, fictitious or fraudulent statements or representations * * * shall be fined not more than $10,000 or imprisoned not more than five years, or both.
The requirement that the statement or representation be material as well as false is not set forth in the statute, however it is recognized as a judicially imposed "essential element" of a charge under section 1001. United States v. Voorhees, 593 F.2d 346, 349 (8th Cir.1979) (citing United States v. Gilbertson, 588 F.2d 584, 589 (8th Cir.1978); United States v. Jones, 464 F.2d 1118, 1121 (8th Cir.1972), cert. denied, 409 U.S. 1111, 93 S.Ct. 920, 34 L.Ed.2d 692 (1973)).
Whitaker asserts that the issue of materiality is determined by whether in the particular context involved "the false statements [could] have affected or influenced the exercise of a governmental function." United States v. Salinas-Ceron, 731 F.2d 1375, 1377 (9th Cir.1984) (citing Brandow v. United States, 268 F.2d 559, 565 (9th...
To continue reading
Request your trial
-
US v. Keller
...Enforcement Administration already knew the defendant, who was a pharmacist, had made out-of-state purchases. In United States v. Whitaker, 848 F.2d 914, 916 (8th Cir.1988), the Eighth Circuit held that the knowledge of the government employee at the time the defendant made the false statem......
-
U.S. v. Dale
...of the recipient's knowledge vel non of its falsity, that determines materiality under section 1001. See United States v. Whitaker, 848 F.2d 914, 916 (8th Cir.1988); United States v. Goldfine, 538 F.2d 815, 8820-21 (9th Cir.1976). We note in this regard, however, that this Circuit has consi......
-
U.S. v. Cisneros, CRIM. A. 97-0485(SS).
...United States v. Poindexter, 725 F.Supp. 13 (D.D.C.1989); United States v. Puente, 982 F.2d 156 (5th Cir.1993); United States v. Whitaker, 848 F.2d 914 (8th Cir.1988); United States v. Corsino, 812 F.2d 26 (1st In any event, the Supreme Court has held that materiality is an element of § 100......
-
US v. Van Dyke, Cr. 92-CV-4009.
...Copple, 827 F.2d 1182, 1187 (8th Cir.1987), cert. denied, 484 U.S. 1073, 108 S.Ct. 1046, 98 L.Ed.2d 1009 (1988); United States v. Whitaker, 848 F.2d 914, 916 (8th Cir.1988).1 The jury's verdicts on Counts 1, 2, 3 and 5 were based on correct instructions as to the law and were fully supporte......