United States v. Goberman, 71-1666.

• Citation: 458 F.2d 226
• Decision Date: 07 April 1972
• Docket Number: No. 71-1666.,71-1666.
• Parties: UNITED STATES of America v. Allan N. GOBERMAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

458 F.2d 226 (1972)

UNITED STATES of America v. Allan N. GOBERMAN, Appellant.

No. 71-1666.

United States Court of Appeals, Third Circuit.

Argued January 6, 1972.

Decided April 7, 1972.

Bernard L. Segal, Segal, Appel & Natali, Philadelphia, Pa., for appellant.

Mervyn Hamburg, U. S. Dept. of Justice, Appellate Section, Crim. Div., Washington, D. C., for appellee.

Before KALODNER, GANEY^* and MAX ROSENN, Circuit Judges.

OPINION OF THE COURT

MAX ROSENN, Circuit Judge.

Allan Goberman was convicted in the district court in a trial without a jury on a one count indictment charging him with violating 18 U.S.C. § 1014¹ by knowingly making a false statement of material facts in a personal financial report submitted to York Federal Savings & Loan Association (York Federal) for the purpose of influencing it to approve and grant a loan. The indictment averred, inter alia, that Goberman knowingly made a false statement of material fact in that he "represented therein a net worth of $2,017,400, whereas, as he then and there well knew, his net worth was only $268,393.49." The district court memorandum of decision is reported at 329 F.Supp. 903 (M.D.Pa.1971).

This appeal is taken from the judgment of conviction and raises two primary issues:

(1) Did the Government prove that the false statement was knowingly made or that there was any intent to defraud the institution ; and

(2) Was the personal financial statement submitted in connection with an application for a loan to a corporation controlled by the appellant a material fact within the meaning of the statute since it did not figure in the lender's grant of the loan to the corporation, Lancashire Hall, Inc.?

We need not recount all the facts since they are fully set forth in the memorandum decision. The pertinent facts on this appeal are that the appellant in May 1965 sought financing from York Federal in behalf of a nursing home to be constructed by Lancashire Hall, Inc., a corporation in which he held 98% of the equity stock. The anticipated construction cost was $2,000,000 and a loan of $1,500,000 was requested for the corporation. There never was any requirement or suggestion that the appellant become personally liable for the loan. Stanley L. Gladfelter, Executive Vice President of York Federal, was generally impressed by the loan presentation. Goberman was a successful home builder in the Lancaster area, and although this project was his first nursing home, it seemed to have good prospects for success. On July 2nd, Gladfelter made the loan presentation to the executive committee of the board of directors. Although he made no specific recommendation, he conceded at trial that he made his favorable position known to the four members of the committee.

One of the committee members, Arthur Markowitz, decided he did not want to recommend the loan to the full board of directors until he had a personal financial statement from Goberman. Because Markowitz was dead at time of trial, Gladfelter testified he believed the motivation behind the request was simply to allow the directors to get a better idea about Goberman, with whom they had never before dealt.

On July 6th, Goberman called Gladfelter from a beach resort and asked how the loan application was coming. Gladfelter replied that one of the directors wanted a personal financial statement. Goberman protested that his accountant was not available and that he was not familiar with his own books. Notwithstanding those problems, Gladfelter urged Goberman to prepare something for submission. Goberman drove home from the beach, and late that night drew up a personal financial statement from memory. The next day it was submitted to the savings and loan association, and the loan was approved.

At trial, the Government proved that Goberman had failed to list several large liabilities although he had incurred them only a week or two before he wrote out the statement. On June 29th, Gladfelter had informed him that the loan would be presented to the executive committee that week. On the same day, Goberman transferred $116,000 from corporations controlled by him to his personal accounts. The debt to the corporations was not reflected in his financial statement. In addition, on June 30th Goberman borrowed $250,000 from the Commonwealth National Bank of Lancaster, and again failed to list the liability on the statement. Furthermore, he listed assets of $80,000 in Government bonds when in fact he had only about $8,600 worth.

Goberman asserted that all of these errors were caused by his lack of knowledge of his books and his haste in preparing the statement. We believe that although the circumstantial evidence did not eliminate every possibility inconsistent with guilt, the district judge carefully analyzed all of the...