U.S. v. Whitman, No. 80-1226

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SETH, Chief Judge, SEYMOUR; SEYMOUR
• Citation: 665 F.2d 313
• Parties: 9 Fed. R. Evid. Serv. 735 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Brown WHITMAN, Defendant-Appellant.
• Docket Number: No. 80-1226
• Decision Date: 30 November 1981

Page 313

665 F.2d 313 9 Fed. R. Evid. Serv. 735 UNITED STATES of America, Plaintiff-Appellee,
v.
Ronald Brown WHITMAN, Defendant-Appellant. No. 80-1226. United States Court of Appeals,
Tenth Circuit. Nov. 30, 1981.
Rehearing Denied Jan. 8, 1982.

Page 315

Richard N. Stuckey of Keene, Munsinger & Stuckey, Denver, Colo., for defendant-appellant.

Jeffrey C. Fisher, Asst. U. S. Atty. (Charles E. Graves, U. S. Atty., Cheyenne, Wyo., with him on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, SEYMOUR, Circuit Judge, and O'CONNOR, ^* District Judge.

SEYMOUR, Circuit Judge.

Ronald Whitman was convicted after a jury trial on two counts of violating 18 U.S.C. § 1014 ¹ by making false statements to a federally insured bank. On appeal, Whitman contends that 1) the indictment was impermissibly amended, 2) a fatal variance occurred between the indictment and the evidence presented at trial, 3) the evidence of intent was insufficient, 4) the jury instruction on the elements of the offense was erroneous, 5) various evidentiary rulings were erroneous, and 6) the prosecutor's closing rebuttal argument was improper. We find these contentions to be without merit and affirm the conviction.

Viewed in the light most favorable to the verdict, see United States v. Brinklow, 560 F.2d 1008, 1009 (10th Cir. 1977), the evidence supports the following facts. Whitman owned the L-O-N ranch in Wyoming during the early 1970's. In October 1974, he purchased the Hoagland ranch and assumed liability for Hoagland's outstanding debts to the First National Bank of Rawlins (the bank). Whitman also wanted to acquire the Herold ranch, located next to the Hoagland ranch, because he thought the three contiguous ranches could be operated more profitably as a unit and would make an attractive package to a potential buyer.

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The bank agreed to finance the purchase of the Herold ranch and to extend Whitman a substantial line of credit to operate the consolidated properties. In negotiating this agreement, Whitman submitted to the bank the financial statement upon which the second count of the original indictment was based. That statement was dated April 17, 1975, and signed by Whitman on April 23, 1975. It was "furnished by (Whitman) for the purpose of obtaining credit from (the) bank from time to time," Rec., vol. II, Pl.Ex. 1.

The financial statement listed as an asset 326 unimproved lots in Tehachapi, California, having a market value of $865,000. This California property had been the subject of several unsuccessful sales agreements between the original owners and Whitman as the potential purchaser. On March 17, 1975, the property was deeded back to the original owners by the nominal grantee shown on the deed, a party other than Whitman, after Whitman failed to make the initial payment due under the relevant sales contract on March 1, 1975. Whitman had no further contact with the original owners after March 17, 1975.

On July 1, 1975, Whitman borrowed another $50,000 from the bank to buy additional bulls for the ranch. Count III of the original indictment was based on the financial statement submitted by Whitman concerning this loan, which also listed the California property as an asset. The combined ranches were ultimately sold to a third party in 1976.

The original indictment contained three counts charging Whitman with knowingly making false statements in violation of 18 U.S.C. § 1014. Included in the description of the false statements were references to property located in Aspen, Colorado, and allegations that Whitman knowingly inflated the value of property in his financial statements.

Prior to trial, the Government elected to proceed only on the charge of making false statements and to drop the charge of overvaluing property. Pursuant to this election and also to conform to the evidence presented at trial, the Government's motion was granted allowing it to dismiss Count I and to strike the references to the Aspen property, inflated value, and the location of the ranch properties.

I.

The Indictment Issues

Whitman contends the indictment was impermissibly amended. He argues the trial court misconstrued the statute and therefore permitted deletions which altered the meaning of the indictment from the one presented to the grand jury.

The court may not amend an indictment except as to matters of form. United States v. Griffin, 463 F.2d 177, 178 (10th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 34, 34 L.Ed.2d 254 (1972). However, withdrawing a part of the charge from jury consideration does not work an amendment if nothing is thereby added to the indictment. Id. Withdrawal that narrows the defendant's liability is permissible, United States v. Hall, 536 F.2d 313, 319-20 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976), so long as the remaining allegations state an offense and give the defendant notice of the charges he must be prepared to meet. Griffin, 463 F.2d at 178.

Contrary to Whitman's assertion, the deletions in Counts II and III ² did not change the meaning of the charges from those presented to the grand jury. ³ With

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the exception of the references to the location of the ranches, all the omitted language was related to the dropped charge of overvaluation or to the Aspen property. Withdrawing this material from the jury clearly narrowed Whitman's liability. It did not change the meaning of the remaining counts, which both charge that Whitman knowingly made a false financial statement to a federally insured bank for the purpose of influencing the action of the bank regarding the status of loans he had previously assumed. The false statements are identified, the dates are given, and the actions are alleged to have been done to influence the bank or influence deferment of foreclosure. Although not artfully drawn, the final indictment retains all the language of the original relative to the charge of knowingly making a false statement, sufficiently alleges an offense under 18 U.S.C. § 1014, and gives Whitman notice of the charges against him.

Whitman also claims that deletion of the location of the ranches was erroneous. Although the original indictment states that the lands were located in Carbon County, Wyoming, the evidence presented at trial shows that the lands extend into other counties as well. Nonetheless, this omission does not render the indictment insufficient under the standards articulated in United States v. Radetsky, 535 F.2d 556, 562 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976).

"First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause.... And a purpose corollary to the first is that the indictment inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.... Furthermore, and of paramount importance, a sufficient indictment is required to implement the Fifth Amendment guaranty and make clear the charges so as to limit a defendant's jeopardy

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to offenses charged by a group of his fellow citizens, and to avoid his conviction on facts not found, or perhaps not even presented to, the grand jury that indicted him."

Id. at 562 (citations omitted).

Whitman does not contend he was unable to prepare his defense or was misled by the erroneous factual assertions. The elements of the offense were stated and facts were alleged which, if proved, were sufficient to support the conviction. In view of the specific identification of the dates, the bank, and the nature of the false statements, it is not possible that Whitman was convicted for acts not presented to the grand jury. In sum, we hold that the changes did not constitute an impermissible amendment and that the resulting indictment was sufficient.

Whitman argues that even if an impermissible amendment did not occur, a fatal variance existed because the evidence offered at trial differed materially from the facts alleged in the indictment. A variance is fatal when the defendant is prejudiced in his defense because he cannot anticipate from the indictment what evidence will be presented by the Government at trial, or when "a conviction based on the indictment would not bar a subsequent prosecution for the same offense." United States v. Freeman, 514 F.2d 1184, 1189 (10th...