United States v. Trexler

• Decision Date: 04 June 1973
• Docket Number: No. 72-2889 Summary Calendar.,72-2889 Summary Calendar.
• Citation: 474 F.2d 369
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gene Roy TREXLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 369 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Gene Roy TREXLER, Defendant-Appellant.

No. 72-2889 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 13, 1973.

Certiorari Denied June 4, 1973.

William F. Russell, Lubbock, Tex. (Court-appointed), for defendant-appellant.

Frank D. McCown, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

Certiorari Denied June 4, 1973. See 93 S.Ct. 2759.

AINSWORTH, Circuit Judge.

This is an appeal from a conviction for making false statements to a federally insured bank to influence the action of the bank, 18 U.S.C. § 1014 (1971), in which appellant Gene Roy Trexler raises three points, two about jury instructions on intent and the third on the failure of the Government to prove a fact mentioned in the indictment. We affirm.

In operating a used car business Trexler financed the purchase of used cars by pledging the title of each car to a bank insured by the Federal Deposit Insurance Corporation. When he sold a car, the bank would return the title and he would transfer it to the purchaser. Then by agreement Trexler was obliged to pay the bank with the proceeds from the sale.

On April 6, 1972, Trexler was indicted on seven counts when he did not turn over the proceeds of several sales to the bank. Two of the counts were dismissed prior to trial, and he was convicted on the other five counts.

In point one the appellant emphasizes that the crime charged requires that the defendant make a false statement, so he contends that jury instructions should have limited the jury's consideration to affirmative acts. We find that it was proper, however, for the District Judge to instruct the jury that for the purpose of deducing the defendant's intent to commit the crime, the jury could consider what "a defendant does or fails to do."¹See United States v. Wilkinson, 5 Cir., 1972, 460 F.2d 725, 730. Appellant's reliance on United States v. Diogo, 2 Cir., 1963, 320 F.2d 898, is misplaced. In that case the Court concluded that a prosecution for false representations, as opposed to concealment, cannot "be grounded upon the omission of an explanation." 320 F.2d at 905. Unlike Diogo, the District Judge in the present case required the jury to find that defendant made a false statement before it could find him guilty. At one point the District Judge said the jury must find that the defendant "committed the act of making a false statement." At another point the Judge said, "The intent to mislead or defraud the bank and the falsity of the statement must be present at the time the statement is made or communicated to the bank." We believe the instructions were adequate under the circumstances.

In point two appellant complains about the following jury instruction made by the Trial Judge: "Now, it is reasonable to infer that a person ordinarily intends the natural and probable consequences of his knowing acts." While we do not permit a jury charge which shifts the burden of proof to the defendant through the use of a presumption,² this Circuit does approve an instruction permitting the jury to infer intent from the natural and probable consequences of a defendant's acts. United States v. Wilkinson, 5 Cir., 1972, 460 F.2d 725, 729-31; Estes v. United States, 5 Cir., 1964, 335 F.2d 609, 615-617, cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559, reh. denied, 380 U. S. 926, 85 S.Ct. 884, 13 L.Ed.2d 814 (1965); Mann v. United States, 5 Cir., 1963, 319 F.2d 404, 409; Harrison v. United States, 5 Cir., 1960, 279 F.2d 19, 24-25.

The final point is relevant to only two of the five counts. In the indictment Trexler allegedly told the bank he would "pay to the bank the amount of the value received by the defendant from the alleged purchaser of such automobile, whereas, in truth and in fact, after obtaining . . . title from the bank, the defendant did not pay to the bank the value of such automobile, and the bank was therefore defrauded of the value of the above described automobile." For the loans involved in these two counts the bank was not actually defrauded, because the bank itself eventually covered its loss by seizing funds which the defendant had in another account in the bank. As a general rule, the Government cannot broaden an indictment so as to convict the defendant on different facts from those charged in the indictment....