*1 the district court on therefore affirm We issue.
this Attorneys’ Fees
IV. attorneys’ requested
Plaintiffs have Equal to Justice Act
fees under the Access “EAJA”).
(hereinafter awards The EAJA prevails against party
fees to a who if cannot show position litigation in the was “sub its
stantially justified.” U.S.C. Bowen, 2412(d)(1)(A),(B); v. Kali Cir.1988).
329, applies The EAJA Marsh, F.3d at
in environmental cases. prevail in
1491. Because Plaintiffs did not litigation, we decline to award fees.
this
CONCLUSION AFFIRM the decision
We therefore uphold court and the Forest Service’s
district viability and cumulative effects
population
analyses. request DENY Plaintiffs’ We
attorney’s fees. America,
UNITED STATES
Plaintiff-Appellee, Eugene ALLEN,
Edward Defendant-
Appellant.
No. 94-30393. Appeals
United States Court , Ninth Circuit.
Argued Sept. 1995. Sept. Deferred 1995.
Submission
Submitted Oct. 1995. July
Decided *3 Storkel, Grefenson,
John E.
&
Storkel
Sa-
lem, OR,
defendant-appellant.
for
Hoar,
Sean B.
Assistant United States At-
OR,
torney, Eugene,
for plaintiff-appellee.
SCHROEDER, REINHARDT,
Before:
FERNANDEZ,
Judges.
and
Circuit
SCHROEDER,
Judge:
Circuit
appeals
Edward Allen
his conviction and
sentence,
trial,
following jury
thirty-five
a
on
making
counts of
false statements in loan
applications
federally
to two
insured financial
institutions,
in violation of 18
U.S.C.
appeal in
pro
On
a counseled brief and a
se
brief,
issues,
supplemental
he raises nineteen
opinion.1
of which three are decided in this
opinion
In this
we first consider Allen’s chal-
jurisdictional
lenges to his conviction on
grounds.
He contends
prove
failed to
that the two financial institu-
(‘West-
tions,
Oregon
Bank of
the Western
Bank”)
Oregon
and the
ern
Southern
Federal
(“Southern
Union”),
Credit Union
Credit
federally
at the time of the'
were
insured
alleged
turn
criminal conduct. We then
challenge to his
contends
his
sentence. He
incorrectly
that the district court
calculated
resulting
the losses
from his fraudulent con-
duct,
erroneously
allegedly
considered
in its determination
uneounseled convictions
history category.
vacate
of his criminal
We
convictions on two eounts
because
94-30393,
disposed
July
remaining
1. The
issues are
of in an
No.
Southern Federal Credit Union FEDERALLY-INSURED STATUS by sured the National Credit Union Ad- ministration? court Allen contends that district erred Yes, it is. A. acquittal denying in his motion for because Q. federally-insured So it’s a credit un- prove failed Western ion? Bank were feder- and Southern Credit Union A.
ally insured at the time of his fraudulent
Yes.
thus,
testimony
Agee’s testimony,
it
this
is that
institutions.
falls
problem with
quantum
January,
necessary
short of the
of evidence
during trial
in
place
took
prove
an
a
questions in
element of crime.
prosecutor’s
Boyd answered
Thus,
testimo-
present tense.
while her
accordingly
We must
vacate Allen’s convic-
insurance
ny may establish the credit union’s
twenty-one
forty-seven,
on
tion
counts
that the
in
it does not establish
status
only
involving
counts
the credit union.
Allen
union was insured when
made
credit
Oregon
B.
The Western Bank of
fraudulent statements
1988-89.
his
responds by arguing
testimony
There was no
direct
of in
exchange
place during ques-
govern
sured status of the bank either. The
the above
took
pieces
ment relies on
tioning
involving
transaction
three
of evidence
about
Allen,
opposition
acquittal regard
to the motion for
during
and that
the ex-
defendant
ing
involving
counts
Western Bank: testimo
change
jury had
it an exhibit
before
ny from
transaction;
therefore,
Western Bank official Kenneth
documenting
Williams,
testimony
Agee
from Kenneth
jurors
reasonably
could
infer that the credit
above,
excerpted
containing
and two exhibits
federally
union was
insured in 1989. We
the words “member FDIC.” Unlike the
Boyd’s
reject
government’s argument.
*5
Union,
involving
counts
Southern Credit
present-tense
simply
support
do not
answers
proved,
only by
if
has
a thin
Credit Union
the inference
Southern
margin, Western Bank’s insurance status.
federally
at
the time of the
was
insured
offenses,
years
four and a half
earlier.
some
Agee’s testimony
Neither Williams’ nor
of-
any
fers
assistance.
Third,
government points to testi
testimony
Williams’
about Western Bank’s
mony by
Agee,
employed
Kenneth
who was
precisely
insurance status suffers from
parent company
by Housing
be
U.S.A.’s
Boyd’s testimony. Agee’s
same defect as
1990,
1987 and
which includes the
tween
above,
testimony,
equally
as
un-
discussed
is
period
Agee,
of
fraudulent behavior.
Allen’s
helpful.
testimony
preceded by
whose
was
several
Thus,
government’s
case
on ex-
rests
days
testimony
from other witnesses about
6e,
6e and 16d.
a document
hibits
On exhibit
mobile home loans from Western Bank and
entitled Individual Financial Statement and
Union,
the Southern Federal Credit
testified
relating to a loan transaction on November
following:
to the
1988, the words “HEAD OFFICE COOS
ads,
Q.
regard
With
to these
isn’t it true
FDIC,”
BAY
MEMBER
OREGON
as we
actually sought
that Shadow Ranch
financ-
document, clearly
legibly ap-
and
view the
ing through companies that weren’t —that
insignia
pear next to
Bank
at
the Western
institutions,
Greentree,
were non-bank
like
16d,
top
of the document. On exhibit
a
WESAV, nonfederally-insured agencies or
employment
Bank
verification
Western
loan
right?
companies? Is that
“Member
form dated March
the words
Yes,
A.
that’s correct.
page.
appear at the bottom of the
FDIC”
Q.
regard
payments
And with
to down
so
year
this document does not contain
While
they
companies,
with some of those other
date,
information con-
one can infer from the
may
requirements
same
as a
not have the
completed
tained therein that the form was
federally insured institution? Correct?
in
These two exhibits constitute the
require
A.
all
down
Well those lenders
only
that Western Bank was feder-
evidence
payments of some sort....
ally
at the time of Allen’s fraudulent
insured
view these
Agee’s testimony
not sufficient.
he
conduct in 1988-89. When
is
While
we
light
to the
may
distinguish
exhibits in the
most favorable
have meant
to
Southern
examples
prosecution, we conclude that a rational trier
Union from his
of non-in-
Credit
institutions,
beyond
of fact could have found
a reasonable
sured financial
he never referred
federally
Bank
in-
doubt that Western
was
specifically to the Southern Credit Union.
of Allen’s fraudulent behav-
similarly
no mention of whether
sured at the time
He
makes
Therefore,
not err
ior.
the district court did
Edward Allen’s transactions involved insured
calculating
when
actual loss.
acquittal
on the
should consider
denying the motion
§
commentary
speci-
Bank.
to
2F1.1
involving Western
Note 7 of the
thirty-three counts
applications,
that for fraudulent loan
fies
OF THE LOSSES
CALCULATION
(or
victim
the loss is the actual loss to the
the district court
claims
about,
Allen
yet
if the loss has not
come
the bank’s and cred
loss).
calculated
when it
erred
example,
For
if a
expected
defen-
considering pay
without
it union’s losses
fraudulently
by misrep-
obtains a loan
dant
default, interest
income
ments made before
assets,
resenting the value of his
the loss is
loans,
non-defaulting
payments
from
repaid at the
the amount of the loan not
outstanding loans. We review
made on
discovered,
by
time the offense is
reduced
interpretation of the Sentenc
court’s
district
lending
has re-
the amount the
institution
novo, and its factual find
ing
de
Guidelines
recover)
(or
expect
can
from
covered
v. Buen
United States
ings for clear error.
any
pledged
assets
to secure the loan.
rostro-Torres,
Cir.
However,
great-
where the intended loss is
1994).
loss,
than the actual
the intended loss is
er
2F1.1, commentary
§
used.
be
U.S.S.G.
for of
offense level assessed
added).
(n.7(b))(1993)(emphasis
fraud varies with the amount
involving
fenses
by the offender. See
occasioned
of the “loss”
This court has not had occasion
2Fl.l(b)(l).
“Loss” is calculated
§
U.S.S.G.
calcu
determine how actual losses should be
of the “intended loss” or
using
greater
applica
lated
the case
fraudulent loan
2F1.1,
U.S.S.G.
com
the “actual loss.”
Hutchison, 22
F.3d
tions. United States
(n.7)(1993);
States v. Galli
mentary
United
(intended
loss,
loss,
than actual
at 855
rather
(9th Cir.1992),
ano,
cert.
F.2d
applies because defendant did not intend to
*6
966,
1399,
denied,
122
113 S.Ct.
507 U.S.
loans); Galliano,
repay
F.2d at
the
977
1353
(1993). If the
has no
772
defendant
L.Ed.2d
(same). However, other courts that have
good
make
on
repay
or otherwise
intent
considered this calculation after the amend
loan,
gross
loss” is the
the “intended
then
ments, have held that “actual loss” must take
taken from the bank. Unit
value of the loan
into account the amount recovered or reason
(9th
Hutchison,
846,
22 F.3d
855
ed
v.
States
ably anticipated to be recovered from collat
Galliano,
Cir.1993);
771
income received
loss, thereby reducing
against
the loss the interest
actual
culated
$15,266.60. However,
Contrary
non-defaulting
the rec
from
loans.
to de-
loss to
actual
payments were
argument,
that these loan
it
fendant’s
is the lost interest
ord reflects
interest, not
by
loans,
towards
defaulting
the bank
credited
income associated with the
court was not asked
The district
principal.
unpaid principal,
amount of the
that
not the
part
as
the accrued interest
to include
counterpart of the interest
income
is the
calculation, although
cir
several
loss
actual
non-defaulting loans. The
derived from the
practice. See Unit
approved the
cuits have
defaulting
interest income lost on the
loans is
(1st
15,
F.3d
19
Gilberg,
v.
75
ed States
Therefore,
interest
income
not
included.
Cir.1996)(acerued
in the
interest
included
non-defaulting loans should not be
from the
2F1.1);
§
United
calculation under
loss
included either.
(5th
Henderson,
917,
19 F.3d
928
v.
States
correctly
—
The district court also
denied,
U.S. -,
Cir.)(same),
115
cert.
payments
refused to include
made on the
(1994);
207,
United
The version of applicable report says in this case neither autho presentence lines defendant challenge prohibits challenged nor defendant’s rizes waived counsel on each of the prior convictions. Note report gives the use of contested convictions. The no reason for prohibits from 6 of 4A1.2 the district court reaching that conclusion. The including history rejection a defendant’s criminal on court’s of also relies the district resulting convictions score sentences from challenge defendant’s because his convictions “(A) or vacated be have been reversed appeal. on were affirmed of of law or because of subse cause errors government’s position has no exonerating quently discovered evidence controlling or in law. A basis this record (B) defendant, or have been ruled constitu probation presen in a officer’s statements tionally prior in a invalid case.” U.S.S.G. report tence in and of themselves cannot be (1993). § 4A1.2 Note 6 It then states that constitutionality prior conclusive on the of a guidelines commentary and not con “do conviction; appeal affirmance on direct does any right upon fer the defendant to attack preclude mounting a defendant from a collaterally prior a conviction or sentence collateral attack on an uncounseled conviction beyond any rights recognized such otherwise Custis, during sentencing hearing. a See 511 Thus, guidelines in law.” Id. neither at -, 1737-38; 114 U.S. S.Ct. at prohibit challenges nor authorize to the use States, Brown v. United prior determining of convictions for criminal States, Cir.1980); Farrow v. United courts, however, history. The have drawn (9th Cir.1978)(en banc). F.2d 1346-48 right from the Sixth to make Amendment incorrectly The court refused to hold a hear challenges. such ing validity to determine the of defendant’s States, In Custis v. United 511 U.S. claim. We remand for the district court to 485, -, 1732, 1735-38, 128 114 S.Ct. any parties consider relevant evidence the (1994), Supreme L.Ed.2d 517 Court held present. sentencing hearing, that at the a defendant may challenge constitutionality prior CONCLUSION ground convictions state on the that he was We vacate Allen’s conviction on counts right denied his Sixth Amendment to coun 47, involving fraudulent statements made However, not, may during sel. a defendant Union, to the Southern Credit for failure to sentencing proceedings, collaterally attack jurisdictional prove the element of federal prior any grounds. convictions on other Cus insurance, remaining and affirm the counts tis, -, at at U.S. S.Ct. conviction. We therefore vacate Allen’s sen- challenges Defendant Allen the district resentencing tence and remand for on the history court’s determination of his criminal remaining Finally, counts. remand for a we it because included three 1976 and two 1991 *8 sentencing hearing on Allen’s Amend- Sixth state convictions that he claims were ob- claim, resentencing ment and for consistent in tained violation of his Sixth Amendment hearing. with the outcome that of right copies to counsel. Certified of Allen’s PART; AFFIRMED IN space in REVERSED 1976 convictions have a blank the PART, AND VACATED IN and REMAND- reserved for the name of the counsel. There ED FOR RESENTENCING. is no indication that counsel was waived. Similarly, copies certified of his 1991 convic- REINHARDT, Judge, concurring Circuit argued
tions state on their face that Alen part, dissenting part: in in se, pro indicating but leave blank the box that counsel was waived. government charged The Allen with mak- objected ing applications
Alen to inclusion in the of these false statements loan to institutions, history during federally convictions in his criminal his insured financial in vio- sentencing hearing. copies The certified of lation of 18 U.S.C. 1014. Proof of federal insurance, therefore, support only the convictions on their face Allen’s not was essential position jurisdiction,” that the convictions uneoun- to of were “the establishment federal
773 federally insured Schultz, proving that the bank was 17 F.3d v. States United period time boils down to during an es the relevant (5th Cir.1994), constituted but it also in all offense, significance of which would a form the the see United of element sential (9th most, all, jurors. Bellucci, escape if not likelihood 995 F.2d States — -, denied, Cir.1993), U.S. cert. form, even I do not believe that the second (1994). Having L.Ed.2d 844 S.Ct. light most favorable to viewed the when establishing any to evidence point failed establish, government, the is sufficient insurance of federal element the essential doubt, is both an beyond a reasonable what argument, at oral during the trial or juris- of the offense and a essential element opportunity a final was afforded government particularly requirement. This is dictional supplemental in a identify that evidence true, view, my government did because far as I requested. As this court brief that consider this thin not at the time of trial even concerned, proved of no solicitude our am constitute evidence that was relevant reed to because, after government to the assistance of the issue of federal insur- probative to or briefing, I still considering supplemental its jury it advised the that con- ance and never carry government failed to that the believe trial, govern- At stituted such evidence. respect to an element with its burden that somewhere suggested ment never once involv only to the two counts as offense jury lay submitted to the in the exhibits Union, as Federal Credit ing the Southern Instead, gov- proof federal insurance. of concludes, to the majority but also as testimony exclusively on the ernment relied involving the Western thirty-three counts that critical officer to establish bank therefore, I, dissent. Oregon. Bank of that element of the offense—evidence majority properly concludes is of no rele- the West- “proof’ that government’s Only probative when vance and of value. federally insured Oregon was Bank of ern government a final this court afforded the 16-d, exhibits 6-e consists of two forms: through the record did it opportunity to sift employment a loan transaction and a loan majority the form on which the discover form, 6- first Exhibit form. The verification government Because the rests its decision. states, e, weight. It as the given no can be jury that the form tend- argued to the never notes, COOS majority “HEAD OFFICE of federal insur- to establish the existence ed FDIC,” and is all MEMBER BAY OREGON ance, unlikely any juror highly that it is that illegible. asserts but considered, considered, pro- it have or could displayed on an overheard the form was Accordingly, I must that issue. bative on way knowing, howev- no We have screen. majority: my in the disagree colleagues with legible er, any more the exhibit was whether juror could I that no reasonable conclude likelihood, In all it was displayed. when so government proved the that the have found event, that one can any In to the extent not. beyond a rea- of federal insurance element highly message, it is decipher exhibit’s James, States v. doubt. See United sonable any juror unclear that ambiguous. It is Cir.1993). particular have understood would ease, just the in this and not involved branch when the not affirm a conviction We should office, federally insured. head was prove cavalierly failed to has so offense, particu- element of the an essential form, then, actuality, it is the second In easily proven, larly that element is so where 16-d, represents the sum total Exhibit *9 previously government has been and the Although the evidence. government’s negligent consequences of its warned print FDIC” in small “Member form states forcefully stat- As the Fifth Circuit conduct. not dated. page, it is at the bottom of attitude respect government’s with to the ed infer majority that one could concludes The of FDIC insur- proving the existence toward completed in 1989. The that the form was ance: infer- not draw this itself did possibility that Certainly recognize the we ence, however, only wonder and one can day may some be or our sister Courts on his we any juror would have done so whether insufficiency of the evidence an end, faced with evidence government’s In own. ... which would warrant re- of insurance Indeed, difficulty compre- have
versal. we why repeatedly
hending the Government carefully prove more
fails to this element simple
since the burden is so Government’s straightforward. As in other
and discussed,
cases we have the Government perilously in this
treads close reversal
case, may crossing find itself and soon sufficiency insufficiency.
line from Platenburg,
United States v. Cir.1981) omitted). (citation See
Schultz, (noting at 727 n. that the F.3d
Fifth Circuit “has often warned that insuffi- jurisdiction
cient attention to the element nemesis”).
might become the Government’s circuit, day
In our own before, in
crossed the line came once James.
Still, government, unexplained for some
reason, persists ignoring prove the need to
an essential element of the offense. We suddenly
should not now retreat from the carefully
principle we have so tried to estab- improper an un-
lish order rescue and
justifiable conviction. sufficiency of the evidence standard is
generous, Accordingly, but limitless. respect I
while concur with to counts
47, I would reverse the convictions as to the counts,
remaining thirty-three and therefore
dissent as to those counts.
Christopher MARTIN, John
Plaintiff-Appellant, SIAS, Defendant-Appellee.
Mark W.
No. 95-36118. Appeals,
United States Court of
Ninth Circuit.
Submitted June 1996.* July
Decided Martin, Sheridan,
Christopher John Ore- gon, plaintiff-appellant, pro se. * 34(a); panel unanimously finds this case suitable for P. 9th Cir. R. 34-4. *10 argument. R.App. decision without oral See Fed.