United States v. Dota, 73-1062.

• Decision Date: 03 December 1973
• Docket Number: No. 73-1062.,73-1062.
• Citation: 482 F.2d 1005
• Parties: UNITED STATES of America, Appellee, v. Richard James DOTA, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

482 F.2d 1005 (1973)

UNITED STATES of America, Appellee, v. Richard James DOTA, Appellant.

No. 73-1062.

United States Court of Appeals, Tenth Circuit.

August 9, 1973.

Certiorari Denied December 3, 1973.

Donald K. Bain, Denver, Colo., for appellant.

Richard J. Spelts, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellee.

Before SETH, JONES^*, and DOYLE, Circuit Judges.

Certiorari Denied December 3, 1973. See 94 S.Ct. 583.

SETH, Circuit Judge.

Appellant was found guilty after a jury trial of violating 18 U.S.C. § 1014. This section makes it a crime to knowingly make a false statement as to a material fact in applying for a loan at a bank insured by the Federal Deposit Insurance Corporation for the purpose of influencing the bank to make the loan.

The indictment was in one count, charging appellant with making seven different false representations. The trial court struck two of the allegedly false representations from the indictment. As to one of them, the bank president testified that it would not have influenced the bank one way or another in making the loan. The other representation dealt with another charge pending against appellant, and the trial court determined that introduction of facts relating to that statement would be prejudicial to appellant.

The jury was instructed that if they found that appellant had intentionally falsified any one of the five statements, they should find appellant guilty. The jury instructions were not objected to, and the jury returned a general verdict of guilty.

Appellant argues that there was no substantial evidence as to certain of the alleged false statements, and since there is no method of determining which of the false statements the jury relied upon in reaching its verdict, we are required to reverse.

If in fact there was insufficient evidence to send the case to the jury as to any one of the alleged false statements, a reversal is necessary under the general verdict. It is thus necessary that we examine the evidence as to each of the statements as appellant claims none were supported by sufficient evidence, and all were submitted to the jury. Those statements were that: (a) appellant was the president of Sterling Enterprises, 8000 West 14th Avenue, Denver, Colorado, and had served in that capacity for two years; (b) appellant had $22,400.00 cash in banks and on hand; (c) appellant had $253,500.00 invested in his own business; (d) appellant owned a grain elevator in Des Moines, Iowa, valued at $176,000.00 with an outstanding mortgage of $92,000.00; and (e) appellant owned two 1971 Cadillacs.

A review of the evidence, taken in the light most favorable to the Government, discloses the following:

As to the statement denominated (a) above, the Government introduced evidence that another enterprise was operating from the address given by appellant, that although a Sterling Enterprises had previously been licensed to do business in Colorado, appellant had not been connected with that organization in any manner, and that shortly before applying for the loan involved herein, appellant had been "running short of money" and had been inquiring about finding himself employment.

The evidence as to the statement in (d) indicated that neither appellant nor Sterling Enterprises had ever been listed as an owner of a state-licensed grain elevator in Iowa, nor had he or Sterling Enterprises been shown as an owner of any grain elevator in the tax records of the City of Des Moines or the surrounding county. There was also evidence that no mortgage had ever been recorded on the grain elevator. Appellant's allegation that his name would not appear in the records as an owner if he owned stock in a...