U.S. v. Wozniak
| Decision Date | 30 December 1985 |
| Docket Number | No. 85-1539,85-1539 |
| Citation | 781 F.2d 95 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Shirley WOZNIAK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Donald T. Bertucci, Chicago, Ill., for defendant-appellant.
Alexander S. Vesselinovitch, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.
The Veterans Administration and the Federal Housing Authority guarantee mortgage loans to eligible people. The VA will guarantee as much as 60% of the loan, and the buyer may obtain the loan for 100% of the price of the dwelling. The FHA will guarantee 100% of the loan, but the buyer must provide a down payment, so that the loan will not exceed 90% of the purchase price. Both the FHA and the VA will guarantee loans only to people whose income and assets provide reasonable assurance of repayment.
These programs create opportunities for fraud. One sort of fraud is to misrepresent the income and assets of the applicants for loans. Another is to inflate the stated purchase price of the house in order to induce the government to guarantee a higher loan. For example, if the price of a house is $50,000, the FHA will not guarantee more than $45,000 of a loan to purchase this house. The buyer might falsely report that the actual purchase price was $56,000, of which $6,000 was his down payment. Then the FHA would be willing to guarantee a loan of $50,000. This fraud would enable the buyer to obtain 100% financing, fully guaranteed, contrary to the rules of the program.
Shirley Wozniak and her husband Roger committed both kinds of frauds. They operated Crown Realty in Lombard, Illinois. (At the beginning of the time in question Roger owned Crown, and Shirley was an agent; later Shirley became the owner and registered broker of Crown.) The indictment charged Shirley and Roger with perpetrating large numbers of frauds in the course of Crown's business. The frauds included inflating the reported purchase price of houses to increase the guarantee, manufacturing false documents (called gift letters) purporting to show the availability of funds for down payments, and misrepresenting the employment and income of buyers. The first count charged Roger and Shirley with a conspiracy to submit false statements to the VA and FHA, and other counts charged the completed submission of false statements. Roger was convicted and withdrew his appeal. Shirley was convicted of the conspiracy and of four substantive counts under 18 U.S.C. Secs. 371, 1001, and 1010. Her sentences were suspended in favor of five years' probation.
Shirley's principal argument is that the judge should have given an instruction that would have focused its attention on the possibility that the prosecution had shown multiple conspiracies. Count one of the indictment charged that Shirley and Roger participated in a conspiracy, spanning several years, to defraud the FHA and the VA through the operation of Crown. The court told the jury that it must determine whether the prosecution established the single conspiracy charged. Shirley wanted this additional instruction: The district judge declined to give this instruction.
The instruction Shirley wanted would have told the jury to acquit her if she did not join exactly the conspiracy charged. A jury should be told no such thing. Quite the contrary, a jury may be told to convict a defendant who committed some variant of the events charged in the indictment, so long as the variant is also illegal. This is the familiar function of a lesser included offense instruction. The defendant may have the right to elect between such an instruction and the charge as drafted, but he cannot both draw the jury's attention to a more restricted crime and insist on acquittal because of the difference between this crime and the one charged. The choice is not entirely the defendant's anyway. The prosecutor also may elect to proceed on a subset of the criminal acts charged. See United States v. Miller, --- U.S. ----, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985). So long as the indictment gives notice of the crime charged, the prosecutor may narrow its scope at trial.
There are limits to the variance between the indictment and proof. If the indictment charges a large-scale conspiracy to defraud the FHA and the VA, and the proof shows only a somewhat smaller conspiracy to defraud the VA plus a separate conspiracy to defraud the FHA, the defendant may be convicted--but only of one conspiracy. If the proof should show a conspiracy to rob banks, the defendant could not be convicted at all; this variance would be fatal. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). But the argument Shirley makes does not establish any danger that the jury convicted her of a crime different from the conspiracy charged. She maintains only that there were, at most, lots of little conspiracies--one per fraudulent transaction. She was on notice of the nature of the charge.
It is never helpful to pose a legal question without knowing the significance of the answer. The answer to the question "one conspiracy or many" may be pertinent to punishment, for multiple conspiracies support cumulative punishment. We have set aside cumulative sentences arising from convictions for multiple conspiracies when the only justification for the multiple convictions was the prosecutor's unwillingness or inability to produce enough evidence to demonstrate that there was one large conspiracy. United States v. Cerro, 775 F.2d 908 (7th Cir.1985). The prosecutor cannot use the failure of proof to multiply the sentence. At other times the question "one conspiracy or many" controls exposure to punishment under the doctrine of Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 1183-85, 90 L.Ed. 1489 (1946), which imposes liability on conspirators for...
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