United States v. Sahley

• Decision Date: 06 February 1976
• Docket Number: No. 74-3991.,74-3991.
• Citation: 526 F.2d 913
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd W. SAHLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 913

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd W. SAHLEY, Defendant-Appellant.

No. 74-3991.

United States Court of Appeals, Fifth Circuit.

February 6, 1976.

Patrick M. Sigler, Mobile, Ala. (Court-appointed), for defendant-appellant.

Charles S. White-Spunner, U.S. Atty., Irwin W. Coleman, Jr., William R. Favre, Jr., Asst. U.S. Attys., Mobile, Ala., for plaintiff-appellee.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Lloyd W. Sahley was tried before a jury on a seven count indictment, each count of which charged that he made a material false financial statement to a federally insured bank, for the purpose of influencing the action of the bank to approve a loan submitted by him, in violation of Title 18, U.S.C., Section 1014.¹ He was found guilty on three counts, Counts Four, Five and Seven, and acquitted as to Counts One, Two and Three. Count Six was dropped by the government. He was adjudged guilty and sentenced to one year in prison for each of the counts upon which he was convicted, the sentences to run consecutively. On this timely appeal from that judgment of guilty, we affirm the conviction, but vacate the sentence and remand for resentencing.

The evidence shows that on July 16, 1973, Sahley, representing himself to be "William George", met with George Hardesty, the senior vice president of the Merchant's National Bank, Mobile, Alabama, to obtain a loan to purchase the Town House Motel in Mobile. Mr. Hardesty had Mr. "George" fill out a personal financial statement prior to approval of the loan. All the charges here involved were based on that financial statement. In the financial statement Sahley asserted, inter alia, that he: was not a defendant in any suits or legal actions (Count Four), had investments in Laurels County Country Club in Monticello, New York, worth $640,000 (Count Five), and that his name was William George (Count Seven). Mr. Hardesty granted appellant a loan for $78,000. Sahley defaulted on payments under the loan in May, 1974. The information included in the financial statement was discovered to be false, and Sahley was indicted for these falsifications.

Sahley's appeal raises two major points of error. He first contends that the financial statement was improperly received in evidence, because the subpoena directed to the bank for its production issued without probable cause and was an "unreasonable search" for Fourth Amendment exclusionary purposes. His second contention is that the denial of his attorney's motion for a continuance violated his constitutional right to a fair trial inasmuch as he was forced to trial without sufficient time for preparation of his case. We conclude that neither point warrants reversal.

Additionally Sahley attacks the sentences imposed of one year on each of the three counts under which he was convicted, to run consecutively. He argues that the imposition of the consecutive sentences based on a single false document impermissibly constituted multiple punishment for one crime. Agreeing, we vacate the sentence and remand for resentencing.

I. The Financial Statement.

With reference to the claim that error occurred in the admission in evidence of the financial statement on which the charges were based, the argument is on two inter-related levels. Appellant urges (1) that the grand jury subpoena was invalid, as issued without probable cause; and (2) that primarily because of the illegal subpoena, the introduction of the statement in evidence was an illegal search, and a violation of appellant's Fourth, and perhaps Fifth Amendment rights.

Appellant's basic premise—that a subpoena may issue from a grand jury only for probable cause—is without legal foundation. The grand jury is an investigative body, and the mandate under which it operates is broad indeed. See United States v. Bisceglia, 1975, 420 U.S. 141, 146-147, 95 S.Ct. 915, 919, 43 L.Ed.2d 88, 93-94. The grand jury's investigation is directed at determining whether probable cause for criminal charges exists. In the course of this determination that body must work with something less than probable cause. See Blair v. United States, 1919, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979. Mere suspicion that a crime is being committed is sufficient reason for a grand jury to issue a subpoena. Indeed, a desire simply to assure itself a crime is not being committed will suffice. Bisceglia, supra, 420 U.S. at 148-149, 95 S.Ct. at 920, 43 L.Ed.2d at 94-95.

We refrain from reiteration of the holdings of numerous cases that a bank customer has no standing to challenge a subpoena from IRS directed to a bank for production of its records of dealings with him. See, e. g., Harris v. United States, 9 Cir. 1969, 413 F.2d 316; Galbraith v. United States, 10 Cir. 1968, 387 F.2d 617; O'Donnell v. Sullivan, 1 Cir. 1966, 364 F.2d 43, cert. denied 385 U.S. 969, 87 S.Ct. 501, 17 L.Ed.2d 433. "We decided long ago that an Internal Revenue summons directed to a third-party bank was not a violation of the Fourth Amendment rights of either the bank or the person under investigation by the taxing authorities". (citations omitted) California Bankers Association v. Shultz, 1974, 416 U.S. 21, 53, 94 S.Ct. 1494, 1513, 39 L.Ed.2d 812, 835. Grand jury subpoena powers in this situation may be analogized to those of the IRS. United States v. Bisceglia, supra, 420 U.S. at 141, 95 S.Ct. at 915, 43 L.Ed.2d at 88.

Appellant cites two cases as compelling authority for reversal. We examine their import and distinguish them. The two cases relied upon are United States v. Miller, 5 Cir. 1974, 500 F.2d 751, rehearing en banc denied 1975, 508 F.2d 588 (seven judges dissenting with reasons assigned), cert. granted 421 U.S. 1010, 95 S.Ct. 2414, 44 L.Ed.2d 678,² and a California case, which cites Miller favorably, Burrows v. Superior Court of San Bernardino County, 1974, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590. In Miller, the subpoena by which the government originally acquired the copies of personal checks from the bank was issued by the United States Attorney in the name of a grand jury which was not then in session. A primary tenet of Miller is that, based on California Bankers Association v. Shultz, supra, access to an individual's bank records is to be controlled by legal process, and that "a purported grand jury subpoena, issued not by the court or by the grand jury, but by the United States Attorney's office, for a date when no grand jury is in session, . . . does not constitute sufficient `legal process' within the meaning of California Bankers Association v. Shultz." United States v. Miller, supra, 500 F.2d at 757-758. In the California case, Burrows, the bank's records of the individual's financial transactions were voluntarily delivered to the prosecution by the bank; no process at all was involved. In contrast to the situations in Miller and Burrows, Sahley's bank records, including the financial statement, were subpoenaed by a grand jury in session. Incontestably then, the financial statement first came to the government's attention by way of bona fide "existing legal process".

Additionally, the information which the defendants sought to suppress was, in the Miller case, copies of personal checks, and, in Burrows, personal checks and other personal financial records. The bank obtained these records because of the logistics of modern economic transactions, and the defendant retained an interest which Miller and Burrows hold to be a quasi-ownership or privacy, personal interest. Cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. A man's private papers may, of course, be the subject of an unreasonable search and seizure. Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. In contrast the financial statement in this case was voluntarily furnished by Sahley to enable the bank to evaluate his qualifications for the large loan he sought. The information contained therein was not personal to Sahley at that point. It did not come into the bank's possession in a merely logistical, administrative manner. It was furnished by Sahley for the bank's use, and he had no cognizable privacy interest in it such as that recognized in Katz, supra. "It is difficult to see how the summoning of a third party, and the records of a third party, can violate the rights of the taxpayer, even if a criminal prosecution is contemplated or in progress". Donaldson v. United States, 1971, 400 U.S. 517, 537, 91 S.Ct. 534, 545, 27 L.Ed.2d 580, 593, (Douglas, J., concurring), quoted in California Bankers Association v. Shultz, 416 U.S. 21, 53, 94 S.Ct. 1494, 1513, 39 L.Ed.2d 812, 835.

II. The Denial of a Continuance of Trial.

Sahley contends that it was an abuse of discretion for the trial judge to deny him a requested continuance in order to permit him to prepare more fully for trial. He asserts that his Sixth Amendment rights were violated when he was forced to go to trial little more than a month following appointment of his attorney.

Understanding of this issue requires us to set the circumstances in perspective. From the time of his indictment until immediately prior to the time this case was first set for trial, September 30, 1974, appellant was represented by private counsel. On September 24, 1974, appellant's attorneys moved to withdraw as counsel, apparently because of dissatisfaction with non-payment for their services. This motion was denied on the ground that it was made too near the date scheduled for trial. On September 27, 1974, appellant and his attorneys appeared together before the trial judge and renewed the motion that the attorneys be permitted to withdraw. The court granted this motion, and postponed the trial date until November 18, 1974. The court immediately thereafter appointed counsel for the appellant. On October 15, the counsel initially appointed was permitted to withdraw from the case by reason of an asserted conflict of interest,...