United States v. Dupre

words, seniority provisions honor under In its the col- other he has to establish failed agreement. skill, bargaining disagree. possesses lective We requisite experience, he education, job-related and other require- Following the other circuits which Indeed, qualify positions. ments to for these issue, this have considered we hold that the prerequi- record is bare as to what those require employer ADA not does to take might short, sites be. Foreman has not action inconsistent with contractual upon offered evidence which a reasonable rights of other under a workers collective find could that he is entitled to the agreement. bargaining See Benson v. sought. accommodations Airlines, Inc., Northwest (8th Cir.1995); Eckles v. Consolidated Rail CONCLUSION (7th Cir.1996) (“Af

Corp., 94 F.3d text, examining background, ter leg did Foreman not evidence adduce which history duty islative of the ADA of ‘reason would allow reasonable to find he accommodation’, able we conclude that disabled, as defined the ADA. For require ADA does not disabled individuals to reason, judgment this we hold that by sacrificing be accommodated the collec appropri- matter of law favor of B & W is tively bargained, seniority bona rights fide Alternatively, ate. we hold the district — employees.”), other cert. U.S. finding court err did not that Foreman -, (1997); 137 L.Ed.2d 480 failed to upon offer evidence which a Scrivner, Inc., Milton v. reasonably could quali- conclude that he was (10th Cir.1995) (recognizing plaintiffs’ position expeditor, fied for the or that the bargaining agreement prohibits collective requested accommodations which he were their job plain transfer other because reasons, For reasonable. these judg- requisite seniority). tiffs lack the ment of the district is court AFFIRMED. Regardless, even if there were no place, B obligated

CBA & W would not be by reassigning

to accommodate Foreman him position.

to a new do not “[W]e read the requiring

ADA as affirmative action in favor disabilities, individuals the sense of

requiring persons given priority disabled be reassignment

in hiring or over those who are prohibits employment It disabled. dis America, UNITED STATES of Plaintiff- against qualified crimination individuals with Appellee-Cross-Appellant, disabilities, no more Daugher and no less.” Paso, ty City El 56 F.3d 695 Sellers, Robert DUPRE W. Harold Cir.1995), -, Defendants-Appellants-Cross- L.Ed.2d 211 Appellees. Additionally, Foreman no offers evidence showing any of requested positions No. 95-30275. are, were, available. For the accommoda- Appeals, United States Court of reassignment reasonable, tion of a to be it is Fifth Circuit. position that a clear must first exist and be ADA, employer vacant. Under is not July required give what it does not have.

Foreman also fails to offer evidence showing qualified

that he is otherwise to meet the

hiring positions.14 requested criteria these qualification perform

14. The determination of job two-fold: individual can tions, the essential func- (1) necessary whether the individual meets with or without reasonable accommoda- education, prerequisites job, 12111(8); expe- such as tion. See 42 U.S.C. 29 C.F.R. rience, skills, like; 1630.2(m)(1994) and the whether the Harris Sul-

Stephen Higginson, A. Patrice livan, Eddie Attorneys, J. Jor- Assistant U.S. Orleans, dan, Jr., LA, for United States. New Wessel, Ann Francis Charlotte William Associates, New Or- Lagarde, Wessel LA, leans, Dupre. for Robert DENNIS, Etiwanda, million, DAVIS and Circuit priced Before Lower at $6.2 FALLON,1 Judge. they requested District Judges, pay million to off the $4.2 property. and Sellers reveal did not DAVIS, Judge: EUGENE Circuit W. Inc., Interests, to the bank that Minter company that Sellers created under as- Dupre ap- Harold and Robert W. name, already sumed Upper owned Etiwan- peal multiple their convictions on counts re- Appellants’ corporation, da. Minter Inter- to loans received from the Oak Tree lated ests, purchased Upper had Etiwanda Orleans, Louisiana, Savings Bank New million; roughly property $1.6 “sold” finance various real estate transactions appellants for million. $6.2 follow, For the California. reasons that we their convictions on all counts affirm Meanwhile, Sellers, Dupre, Barrack fact-finding sentencing on remand for two negotiated loan discount from Lomas issues. original their debt claiming inability to pay threatening usury. to sue for Lo-

I. agreed mas to a million on its $3 reduction million loan. At the December Barrack, and Michael both 1988, closing, appellants denied to Ohanian businessmen, Sellers, a California Hous- they' had received a on the discount attorney, founded Pacific Equi- ton LaJolla Shortly Lomas debt: after OTSB distributed (LPE), ties, op- Inc. a California real estate the full amount of the million—to $55.8 1988, purchased pieces In LPE four loan — eration. Lomas, Lomas wired the million loan dis- $3 Development: from property Braewood count to Sellers. Dupre Sellers and wired Linda, Ranch, Loma Lower Etiwan- Sunrise proceeds from both the loan discount and the da, Valley. and Moreno Lomas Financial Upper sale of Etiwanda to domestic accounts (Lomas), Corp. parent company, Braewood’s in Cayman and accounts Islands. purchase. The deal included an financed interest reserve allowed LPE to defer Barrack testified for government payments approximately year. for a interest Dupre as Sellers and left the loan OTSB closing, Dupre told him he had “taken care the fall of as In the deadline for the Ohanian, of’ representative. the LOCAL approached, reserve Sellers interest and $75,000 Ohanian admitted accepting sought from Dupre refinancing for the Lomas Dupre pleaded Ohanian, guilty felony and to employee John loans. of Land- gift procure loan, accepting a to California, (LOCAL), a Land of violation mark Inc. con- § of 18 Dupre U.S.C. 215. and Sellers claim Dupre buying and tacted Sellers about arranged that Vossler a “bonus” Valley for Ohanian proper- Moreno and Sunrise Ranch paid directly by Dupre to be Sellers to Dupre sell, and ties. Sellers and refused to but making employees jealous. avoid other gave option properties Vos- LOCAL on the two sler this in testimony. denied his refinancing for return the Lomas debt. boss, Vossler, Ohanian and his Ernie worked purchased proper- LOCAL both Etiwanda parent company, with LOCAL’S the Oak ties in 1989. required March OTSB that $3.8 (OTSB), Savings Tree Bank arrange to placed million from the sales be certifi- a refinancing. Vossler recommended (CD) deposit cate of for collateral on the loan board that provide OTSB bank a $69 for property. the Loma Linda Sell- loan to LPE. million This sum included $55.8 Dupre ers permission and obtained from to refinance million the Lomas debt on all OTSB withdraw million $1.5 from CD properties, four payment for various fees and buy properties four new serve would taxes, and million LPE pur- to allow $4.2 Sellers, Dupre as collateral for the loan. and property Upper chase another called Etiwan- operating Estate, under Inland Pacific Real da. Inc., immediately used some of funds for told officials that They OTSB and costs. purchased overhead never Upper Etiwanda, adjacent a property properties. ana, Judge by

1. sitting designation. District of the Eastern District of Louisi- materiality on concluded that when is an and and The convicted offense, presents charged of 18 element conspiracy, violation count of one (count 1); mixed 'issue of and fact to be decided law two counts of bank U.S.C. Gaudin, (counts jury. United States fraud, in of 18 U.S.C. violation 510-14, 2310, 2314-15, 3); making state- counts of 2 and two bank, appellants argue federally insured viola- to a ments (counts 6); trial court’s failure submit the and U.S.C. tion of materiality question violates money laundering, eight and counts 7-15). (counts rights requires their constitutional rever- 1957. violation of 18 2, 3, 4, on sal of their convictions counts proceeding, the returned In a bifurcated $7,070,463,rep- 6.3 special forfeiture verdict money laundering, resenting proceeds re- Dupre. Sellers

against both Sellers and A. for of 60 months ceived concurrent sentences 76 months for each of counts counts charge 2 and 3 Counts 7-15, 3, 6, and months count with bank fraud 18 U.S.C. serve a total of months. requiring him to appellants’ misrepre arise $2,000,000 pay restitu- He was ordered purchase price Upper about the sentations Dupre received concurrent sentences tion. (count 2) and the loan Etiwanda discount months months for counts of 60 as the use of million in well- intended 3, 6, 7-15, each of counts (count 3). A violation of released collateral him to serve a requiring months count § 1344 is established when the pay of 70 was ordered to total months. He knowingly .the demonstrates that defendant $500,000in restitution.2 attempted to executed or execute scheme financial or artifice to defraud a institu appealed. con- timely We The defendants ,(2) any property by, tion or to obtain owned challenges appellants’ to their sider below of, custody or the or control a financial convictions. institution, through pre false or fraudulent tenses, representations, promises. 18 or II. face, § text 1344. On its the of the U.S.C. require challenge statute does not that false statements the dis- first §to be Neverthe jury. Specifi- integral 1344 material.4 court’s instructions to trict one, circuits, less, many including this have they materiality of their cally, argue See, materiality. e.g., showing allegedly required was an es- fraudulent statements Goldsmith, 714, 109 fraud false States v. F.3d element of bank United sential (11th therefore, offenses, Cir.1997); Camp v. and, United States that the 715 statement (5th Cir.1995); bell, 967, 64 F.3d 975 United failing to submit mate- district court erred (1st Cir.), Smith, 1223, 1236 F.3d fol- v. 46 riality jury. district court States The denied, 176, 133 U.S. -, 116 S.Ct. at cert. the law of this circuit the time lowed (1995); v. materiality 116 United States Hutchi trial and decided issue (9th Cir.1993); son, 846, 1995, However, 22 F.3d 851 United in June matter law. (7th Davis, v. 989 F.2d Cir. position held Supreme overruled States Court Hollis, 1993); v. 971 F.2d United States most other federal circuits by this court and institution; (1) Barrack, charged a financial or who also in the defraud 2. Michael indictment, funds, charging guilty pleaded any moneys, to one count cred- to obtain conspiracy its, assets, securities, to make false statements to federal- property or other owned ly insured bank. of, custody by, control a finan- or under the or institution, by or fraudulent means of false cial panel 3. A of this court released Sellers promises; representations, pretenses, or shall appeal Supreme pending Court after $1,000,000 impris- or more than be fined not decision in rendered its Gaudin. years, 30 both. not more than or oned full, provides: § § In 1344 U.S.C. 1344. 18 executes, knowingly attempts to Whoever execute, or artifice— a scheme 816 (10th Cir.1992), denied,

1441, jury cert. to a right the defendants’ trial in that 1580, 985, to that 123 L.Ed.2d 148 element offense. U.S. 113 S.Ct. (1993); 55, Sayan, v. States 968 F.2d United 3, makes no This reference to counts 2 and (D.C.Cir.1992); States v. 61 n. 7 United counts, and, fact, specifically (3d Cir.1987). 619, Goldblatt, A 813 F.2d objection limits the false statement Court decision doubt Supreme recent casts counts.5 —Wells, on this U.S. v. determination. only indication that 921, -, S.Ct. 137 L.Ed.2d 107 U.S. materiality wanted court to send to the (1997), the considered whether 18 Court proposed 1344 counts is their prohibits making 1014—which instructions, which read: federally to a of a statement insured In order to find Mr. and Mr. Dupre materiality requirement bank —contains guilty committing ..., of ... bank fraud itself does not mention ma the statute

when prove beyond must a rea- concluded, contrary teriality. It to most cir sonable doubt that the statements and/or courts, materiality cuit not an ele pretenses the false or fraudulent were ma- plain reading ment under a of the offense terial. A is statement material if it is statutory history the text and that confirmed capable of influencing the decision of the at -, at reading. Id. S.Ct. financial appropriate institution. 927-28. is, question to ask “if the bank had relied statements, on the defendant’s would Wells, have not Since we revisited whether have made [”] difference? offense, materiality an element of a is However, 1014, under Rule which, Federal Rules does not contain an ex- like Procedure, proposed Criminal these However, in press materiality requirement. we preserve structions do not appeal, error on appellants’ will conclude convictions an objection absent specific to the materiality stand even if element of a Hoelscher, issue.6 See United States § 1344 offense and instructions were Cir.1990), cert. Therefore, erroneous. we need not deter- 114 L.Ed.2d 482 previous holding mine our here whether (1991); Beverly, materiality is an essential element of a Cir.1990), § 1344 offense survives Wells. (1991); 112 L.Ed.2d 786 objected Although appellants to the court’s Friedman, United States materiality respect treatment of to the (2d Cir.1988), 1004, cert. denied. 490 U.S. counts, § they 1014 false statement did not 1637, (1989); 109 S.Ct. 104 L.Ed.2d 153 cf. object court’s to to the district failure submit Anheuser-Busch, Inc., McDaniel v. 987 F.2d materiality jury § on to the the 1344 bank (5th 298, Cir.1993) that, 306 (concluding un attorney fraud counts. stated: Sellers’ 51, der Fed.R.Civ.P. counterpart the civil to page As to on 23 [the the false statements 30, pretrial request Fed.R.Crim.P. “a for in page jury of on the court’s instructions the structions or interrogatories ordinarily is in counts], § object we error”). 1014 to failure to the preserve sufficient ap Because jury materiality.... instruct the on It’s pellants object failed to to the denial the of position the of the that requested defendants the materiality regard instruction with charge on counts, § failure to that issue vital [to] is to the 1344 we review the Gaudin- attorney object 5. requests.... did may Sellers’ to the instructions party assign in the No as error However, objection as to the 1344 counts. the any portion charge the or omission of therefrom necessary support went to the intent convic- objects party jury unless that thereto the before tion on those and had no to the relation verdict, stating distinctly retires consider its materiality issue. party objects matter to which that and the grounds objection. Opportunity shall be 6. provides: Rule 30 given objection hearing make the and, out of the At the close of evidence or at such earlier request any party, out of the during reasonably time directs, the trial as the court presence jury. may any party requests file written added). (emphasis Fed.R.Crim.P. 30 the court instruct the on the set forth law as 52(b) Wells, plainness of that error is light of plain error under Rule claim for error Calverley, “‘plain’ in suspect. As noted we Rules of Procedure. Criminal Federal — ‘obvious,’‘clear,’ errors are errors which are States, -, U.S. v. United Johnson ‘readily they apparent;’ or are errors which 1544, 1548-49, -, 117 S.Ct. conspicuous judge that ‘the trial are so Jobe, (1997); United States v. L.Ed.2d 718 prosecutor countenancing were derelict (5th Cir.1996). 1046, F.3d 1061-62 [them], timely even absent defendant’s so, plain-error by guided are doing we ” detecting Calverley, [them].’ assistance Olano, in United States v. analysis outlined (citations omitted). at 37 F.3d Wells’ 730-36, 113 1770, 1775-79, S.Ct. 507 U.S. materiality element rejection an (1993), in the and reiterated 123 L.Ed.2d 508 casts doubt on this circuit’s 1014 offense v. error Johnson Unit context of Gaudin materiality holding that is an element of analysis, this Under the Olano ed States.7 and, therefore, § 1344 violations renders the (1) was only if: there may court reverse claimed error unclear. (3) was clear and obvious and error The decisions Gaudin and Wells have rights. a defendant’s substantial that affected prompted this court others revisit Calverley, States United materiality requirements in various implied (5th Cir.1994) (en banc) Olano, (citing 162-64 example, For statutes. 730-36, 1775-79), at cert. at S.Ct. U.S. Harvard, (5th Cir.1997), 1196, 115 S.Ct. 513 U.S. materiality is not an we concluded that ele (1995). When these elements L.Ed.2d 145 Likewise, of 18 ment may plain present, error a court exercise are operated Circuit held Eleventh Wells if it “seri to correct the error its discretion requiring materiality its overrule decisions fairness, integrity, pub ously affect[s] § 1010 United v. De violations. States judicial proceedings.” Id. at reputation lic Castro, Cir.1997); see 113 F.3d 176 also Olano, at (quoting Upton, 91 States v. F.3d United 1776-77). at Cir.1996) materiality (holding that is not an purposes, For our we assume that — offense), §of element Gaudin, materi- court’s failure submit U.S. -, 137 L.Ed.2d 1027 and, therefore, error, ality Shunk, But see United States prong first of Olano is met. The second (5th Cir.1997) (declining to re requires prong plainness of error — —the materiality is element of examine whether Supreme greater analysis. The Court offense). As cases demon these among cir- confusion Johnson resolved strate, materiality properly con whether is indeed, one,8 and, within this when cuits Wells, 1344 after element sidered the law at the time held in cases “where statute, by expressly required it is not when clearly contrary to of trial settled and Any unsettled. error committed is enough appeal law time of is at the withholding materiality —it from the court ‘plain’ appel- at the time of error be plain or obvious. Be jury was therefore Johnson, late consideration.” after the court’s error not obvious cause Thus, -, in reviewing 117 at 1549. S.Ct. Wells, say that court we cannot the district jury plain for the district- court’s instructions in plain failing error to submit committed error, we to the law—all of the law—as § look materiality on 1344 counts. Gaudin, appeal. After we it now exists on B. failing court erred in assume that the district argue materiality long Appellants considered next that the dis to submit However, failing in material- jury. court erred to submit § 1344—to the trict element of Johnson, Calverley, (requir- 162-63 perjury Compare F.3d at of 8. 31 In defendant convicted 7. " committed reversible plain contended that court ing be 'clear under current error that materiality Jobe, error because it failed to submit express § trial”) at 101 F.3d law’ at time of with —an perjury of under 18 U.S.C. element plain (holding is measured at that error 1062 jury. court that the 1623—to held appeal). time of type "plain error not the claimed Gaudin error" of 52(b). may a court notice under Rule - Johnson, -, U.S. at S.Ct. at 1547. 117 818 § (1994),

ity factually on the 1014 Counts 137 indistinguish- to the counts. making with from charged 4 and 6 able this case and controls our decision OTSB, federally Henderson, In false statement to insured here. con- defendant was institution, to multiple influence the actions financial victed counts related to fraudu- false at banking statements issue ap- bank. lent activities. Id. at 919. On price purchase Upper peal, Eti- he charging relate to the contended that bank (count 4) § intended use of making wanda fraud violation of 1344 and false $1.5 6). (count collateral federally To million released statements to a insured bank offense, on a a conviction this multiplicious obtain violation 1014 were be- previously required govern they circuit has cause involved identical conduct related the false to show that statements were loan. Id. comparing ment one at 925-26. After Thompson, provisions, rejected States v. material. See United the two we Henderson’s (5th Cir.1987). However, F.2d Id. at contention. noted, position squarely has this been Henderson, explained weAs bank fraud —Wells, Supreme rejected by Court in proof requires of a “scheme at -, 117 S.Ct. at 926-28. Be U.S. artifice” to property defraud or to obtain require cause 1014 does false federally from insured financial institution. material, be statement issue the district Id.; 18 U.S.C. 1344. “There is no ‘scheme failing court did not err submit materi requirement or artifice’ in section 1014. ality these to the counts. Further, requirement there is no person charged with bank ... fraud make a III. false statement insured bank.” Appellants next contend that counts Henderson, 19 F.3d at 926. each Because fraud, multiplicious charging bank are fact, requires proof statute anof additional 6, charging making 4 and with counts the bank fraud false statement counts statements, duplicitous and that false these multiplicious. are not See United States charges subjected them jeopardy. to double Fraza, (1st Cir.1997) F.3d charges bank Count fraud in connection (recognizing plain language “on misrepresentations appellants’ with about the statutes, requirements these bur of Block ownership price Upper Etiwanda. satisfied”); ger are United States v. Wolf Similarly, charges appellants count 4 swinkel, (con Cir.1995) making a false statement the same mis cluding that bank misapplication fraud and representations. Counts 3 charge and 6 offense). bank funds do not constitute same statements, stemming bank fraud and false Seda, But see United States appellants’ representations from con (2d Cir.1992) (holding §§ 1014 and nection with the withdrawal of million in multiplicious they 1344 are when arise released collateral. offense). reject ap the same We therefore multiplicity We review de issues novo. pellants’ multiplicity jeopardy and double ar Hord, guments. Cir.1993), L.Ed.2d 200 cases IV. supports single where a act convictions under statutes, jeopardy different criminal double raise objections several implicated pro concerns are not when “each sufficiency supporting of the evidence requires proof vision of a fact which the their convictions on the counts be discussed Galvan, other does not.” United States v. The low. evidence is sufficient to a support (5th 777, Cir.1991); 949 F.2d 781-82 see guilty verdict if a rational could have States, Blockburger 299, v. United the found essential elements of the crime 304, 182, 180, (1932). 76 L.Ed. 306 beyond a reasonable doubt. United States Salazar, (5th Our Cir.), decision United States 958 F.2d 1290-91 Henderson, Cir.), cert. de U.S. S.Ct. nied, arms-length in an transaction —were material A. supports the to the lender. The record con- charge Sellers and Counts and appellants clusion that orchestrated scheme making and false Dupre bank fraud with OTSB, by in part, to obtain funds from know- misrepre with their connection statements price Upper ingly misrepresenting the Eti- price Upper purchase the sentations about wanda. Dupre argue that the and Etiwanda. Sellers beyond to establish is insufficient evidence charges Dupre Count 2 also Sellers and they knowingly com that reasonable doubt the fraud in connection with with bank $3 fraud and made false statements mitted bank negotiated LPE million discount that property. for with the loan the connection appellants from Lomas and concealed appellants’ com- reveals that record Appellants represented OTSB. to OTSB that Upper about Eti- munications with the bank they to million needed refinance loan $55.8 misrepresentations. wanda were riddled with However, from officials testi- Lomas. Lomas produced that Sell- evidence that, fied in the week of De- beginning first Interests, Dupre, acting as Minter ers and 1988, appellants sought cember a discount on option buy Upper to Etiwanda exercised mid-December, By Lomas the loan. had Ltd., Property, Highland from Etiwanda agreed give Barrack a appellants to $3 on approximately million December $1.6 discount, thereby reducing million loan Dupre submitted an ear- 1988. Sellers Ohanian total loan amount to million. $52.8 showing money nest contract to bank appellants he testified that asked Upper selling was Eti- that Minter Interests 21, 1988, on December closing OTSB loan million. The contract roughly $6.2 wanda for they whether had received discount by signed Minter’s vice purportedly stated, Dupre reportedly get “we didn’t attorney a California named Joe president, officials out.” Numerous OTSB work[ed] Kennedy Kennedy. testified that he had not they would have reduced the testified that he signed seen or the document and that had by they loan million had known of OTSB $3 nothing with Minter Interests. to do On Viewing this evidence discount. 21, a Interests week after Minter December government, light most favorable to property, appellants purchased the the two appellants infer entitled to buy to borrowed million OTSB $4.2 misrepresented balance owed on the loan Minter Upper Etiwanda from Interests.9 agreed to refinance. OTSB never disclosed to charge 3 and 6 Counts in Minter the amount OTSB their interest making Dupre with bank fraud and actually necessary buy Upper Etiwanda in to their with in connection with statements See, arms-length e.g., United transaction. million from the million drawal of Cir.1987) $3.8 Trice, States v. loan. pledged as collateral the OTSB CD may by (noting that be violated “the permission to withdraw Appellants obtained failure to disclose material information need August buy allegedly the funds deception in with a ed to avoid connection government pro transaction”). property. The additional Nor did use loan correspondence from OTSB Sellers duced money buy property. Ac the loan agreed Dupre showing that OTSB cording testimony, and Sellers’ exhibits withdrawal on the condition that Sellers funds to domestic most of the were wired provide downpay- “use the Funds Cayman accounts Is accounts and record, parcels property ... in southern ments on on in the lands. Based the evidence California,” of the status the' infer the true advise OTSB was entitled to OTSB, purchase proposed purchases, and allow underlying appellants’ facts contract, subsequent sales to receive 50% property including their interest Minter buy properties pay of each of the balance actually necessary amount they appel- property. 9. Bank officials testified believed payment $2a lants million down had made (a) required

of the loan. that LPE’s Whoever— OTSB authorize board of directors the withdrawal (1) offers, corruptly gives, promises or funds, provided LPE a corporate of reso- any anything person, of value to with Sellers, representing lution that Dupre, and officer, intent to influence or reward an approved Barrack the withdrawal. Barrack director, employee, attorney or agent, approve he the with- testified that did a financial institution in connection with and, fact, knowledge drawal had no of the any or business transaction such insti- obtain scheme to funds. The evidence tution; million was to showed that released $1.5 LPE, $810,000 immediately was trans- ... imprisoned shall be fined or ... or Pacific, corporation a ferred to Inland owned both. by that Dupre Sellers and did not involve Barrack; spent the funds were on Inland U.S.C. 215. operating Pacific costs. The shows record Dupre argue Sellers and that the evidence purchase proper- that no funds were to used was insufficient to that demonstrate John ty. Ohanian, LOCAL, employee an an OTSB evidence, this a Based on reasonable subsidiary, agent employee as an or acted entitled conclude made Dupre corruptly OTSB or that Sellers and representations regarding false use of providing rewarded him for with them a loan. ap- million to induce the bank to government’s evidence showed that Oha- prove the withdrawal. OTSB, nian collected loan documentation for including corporate financial statements B. documents, negotiations, assisted in and was

Next, Dupre Sellers and contend present closing. loan Sellers and support Dupre the evidence insufficient to used Ohanian their contact with the conspiracy bank, their convictions under count deposition and Sellers stated in testi- conspiracy 1. To establish under mony violation agent that Ohanian was an of the bank. government U.S.C. must estab This evidence demonstrates Ohanian (1) agreement lish: an behalf, control, between two or more acted the bank’s under its (2) people, against (Sec- commit a crime with its consent. See Restatement States, (3) ond) United overt by act one of Agency § 1. Viewing this evidence conspirators objectives to further the light government, most favorable to conspiracy. Krenning, beyond rational could conclude a reason- (5th Cir.1996). Count able doubt that Ohanian an agent charges conspiracy to commit the various OTSB. 2-4 conspiracy crimes 6 and produced also evidence unlawfully give money to agent $75,000 Dupre paid Ohanian in connec- 215(a). bank in violation of 18 U.S.C. As refinancing tion of the Lomas loan above, outlined the evidence demonstrates by OTSB. Ohanian that he and testified Dupre jointly participated Dupre’s country day met at club a or underlying the activities counts 2-4 and 6. two after the loan that Dupre closed and cooperative This evidence effort is suffi $75,000. gave personal him a check for Bar- support cient appellants’ convictions for rack him testified that told he was conspiracy to commit bank fraud malee “going care of” giving take Ohanian sufficiency statements. turn to We personal him appear cheek that would not support conspiracy evidence to pleaded on LPE books. Ohanian guilty later give money to an agent of a bank. accepting a bribe U.S.C. 215(a)(1) 215(a)(2).10 provides: evidence,

Section Based on this 215(a)(2): officer, director, employee, Under 18 agent, as an institution, attorney corrupt- or aof financial (a) Whoever— ly demands solicits or for the benefit of person, corruptly agrees accepts or fore, appellants’ on these that convictions counts entitled to conclude was stand. will Ohanian for obtain- Dupre agreed to reward 215(a)(1). §of

ing the loan in violation Dupre also argue Sellers and refusing the erred in that district court C. laundering money all the dismiss (counts $7,000,- 7-15) involving roughly challenge also the suffi- and Sellers they the that ground 000—on failed supporting con- ciency of their the evidence § charge an under 1957. each of offense money laundering viction on of the several counts, underlying these the transactions con- They further contend their counts. proceeds the portions from million $69 money laundering of the victions on all Century in loan and loan discount Sellers’ they because fail counts must be reversed Land Title account were wired to accounts in charge an offense. Cayman appellants’ Islands and do allege that Sellers and Counts 7-12 establish a mestic accounts. To violation they 1957 when violated 18 U.S.C. required government was million obtained from the transferred $4.2 prove that at issue were the funds derived Upper “sale” of Etiwanda Minter Inter from a offense when the criminal in the personal ests to LPE to bank accounts Leahy, transferred them. United States Cayman support elsewhere. To (5th Cir.1996). Islands and Appellants that, indictment, a conviction under argue alleged in the prove “knowingly must the defendant underlying fraud counts were not com bank engage in mon engage[d] attempted] to or pleted money until transferred was to the criminally etary prop in transaction derived Cayman Island and domestic accounts. $10,000 erty greater than Thus, is of a value appellants, at the according to time of specified is unlawful activi derived from criminally not the transfer the funds were 1957(a). ty.” “Criminally de is, proceeds derived —that crime.11 “any property constituting, Johnson, property” rived F.2d See from, proceeds (10th Cir.1992). from a or derived obtained 1957(f)(2). criminal offense.” 18 U.S.C. in Appellants language read count broadly. charged fraud in Dupre argue, support, without too The bank complete Upper property Etiwanda count was when Lomas and that because the OTSB, value, Chicago Compa- Land Title through some the entire million did had $4.2 ny, question criminally property derived the funds Sell- not constitute transferred Houston, Texas. The crime money laundering ers’ account in statute. We evidence, above, complete the funds became “crimi- disagree. outlined was was they nally property” when came un- support appellants’ convictions derived sufficient to 2. See United States v. charged for bank count Based on der Sellers’ control. fraud (5th Cir.) (“[T]he Allen, evidence, to con- entitled of the transactions proceeds of the funds issue each clude that loan — money proceeds at the moment appel- as a result became million—was derived deposit- [the bank] to obtain a loan from left control of lants’ unlawful scheme or into an of a consultant borrow- misrepresentation. There- ed account through OTSB promises by ap- accept, any person, pretenses, representations and anything value from intending plying receiving approxi- to be influenced rewarded a loan in $69,000,000, business or connection with transaction to be used for the mate amount of institution; of such purposes the loan documentations set forth in imprisoned shall be fined ... or ... or both. Savings Bank submitted Oak Tree when fact, [appellants] truth and concealed from 2, appellants: According to count portions Savings Oak Bank Tree knowingly intend did devise and to devise $69,000,000 proceeds loan be would scheme ings to defraud Oak Tree Sav- and artifice personal benefit and would diverted their money and owned Bank and obtain funds purpose and be in the utilized for by custody and control Oak Tree documentation. manner set forth in the loan Savings of false and Bank means fraudulent U.S. -, lants, er.”), subsequently OTMC assigned cert. the loan (1996). to, Therefore, from, OTSB, funding L.Ed.2d 71 and obtained a fed- 7-15, erally which stemmed from the subse insured institution.12 appellants’ quent wire transfers funds Appellants’ contention is belied the rec- Cayman throughout Islands and accounts documents, Among ord. govern- other States, properly charged money the United (1) produced: application, ment a loan dated laundering purposes of 1957. 20, 1988, signed by Sellers, December and

which a warning “knowingly contained D. mak[ing] any appli- false statements” cation constituted a 1014 violation —a attack, sufficiency final their Sellers and warning only required where the lender is Dupre argue that the evidence does not es- (2) insured; federally a commitment letter tablish venue as to all counts because none of 8, 1988, Taylor, dated December from John the offenses in the were commit- indictment official, letterhead, an OTSB on OTSB which in the District of Louisiana. ted Eastern OTSB, signed by identified the lender as (3) Dupre, OTSB; prove and returned to government The must ven financ- statement, ing 21,1988, by preponderance dated December ue of the evidence. Le and Sellers, statute, signed by on ahy, By desig- which OTSB is 632. venue for party; check, nated as the continuing will lie “in secured and offenses district 9, 1988, continued, begun, dated December which such offense was written on LPE’s 3237(a). $50,000, account to completed.” 18 Bank OTSB the amount fraud, statement, stipulated in money launder commitment letter. Addi- tionally, ing “continuing” Dupre both Sellers offenses are offenses for testified that they purposes experience had extensive 3237. with real-es- See Hubbard, (D.C.Cir.1989); tate investment transactions. had 633; Leahy, acquisitions worked real-estate 82 F.3d at United States v. Bed since the 1970s; dow, Cir.1992). early practiced Sellers had F.2d real-estate years. law for more than charge appellants Counts and 4 with bank See United Allen, Cir.1996) States v. fraud and false statement offenses in connec F.3d 1348 (holding showing tion with initial that evidence million loan from that defen- $69 OTSB, financially dants sophisticated in the Eastern were located District of and had received charging referring Louisiana. Counts 3 and also documents to bank was offenses, they bank sufficient to establish that they fraud and false statement re knew bank). defrauding were appellants’ late to withdrawal of million pledged a CD on the loan. Counts 7- government’s evidence, documentary charge money laundering using funds de light appellants’ when considered busi- rived from the bank fraud. legal ness background, is more than adequate by preponderance to establish Dupre argue that venue was proper evidence that venue was in the improper to all of as these counts because Eastern District of Louisiana. government they failed to show that disbursing proceeds knew OTSB V. They loan. they $69 million contend that agreement entered into a loan Finally, with Oak Tree allege (OTMC), Mortgage Corporation prosecutorial an Okla- misconduct in connection with corporation federally homa government’s is not a in- prospec remarks about a sured institution and that is authorized to do tive defense witness.13 Near the end trial, business in According appel- California. planned to call Kenneth 12. OTMC and OTSB are both depart sentencing. subsidiaries of refusal to downward in its Company, record, Landmark Land Inc. After a review of the we conclude that unworthy these contentions are meritless and Appellants challenge also the district court’s greater discussion. evidence; pieces admission of various its in- blindness; relating structions to willful and its 1219-20; Fricke, States v. Banking see United a former Louisiana Com- Pickering, Cir.1982) missioner, banking practices 1126, 1130(5th testify (finding no due Pickering They contend regulations. prosecution process when told wit violation commonly fees are have testified that would nesses, trial, they subjects during were Ohanian, brokers, loan such paid to grand investigation), legally were distinct OTMC OTSB told district entities. under federal inves- Pickering was court matters support appel- in two unrelated not tigation The record here does relevant im- might information be for the charges prosecutorial lants’ of intimidation. purposes on cross-examination. peachment investigation Pickering government’s The of govern- in as to the inquiring camera After prospective to completely unrelated his cross-examination, court, the ment’s basis testimony. court to The district was entitled turn, might that he Pickering informed government sought conclude that the neither Pickering la- questioning on the issue. face prosecu- harass and that to threaten or the banking expert. a testify to as ter declined tor’s to court were made to remarks the for a mistrial on Sellers moved potential it of lines cross-examina- advise or, prosecutorial misconduct grounds of tion. The court’s denial alternative, find new a recess to in the Dupre’s purported for mistrial for motion were banking expert. Their motions denied. prosecutorial was not an abuse of misconduct of a We review the denial motion discretion. of discretion. See for mistrial abuse 1368, 2 Bentley-Smith, v. F.3d States United Likewise, the district court did Cir.1993). (5th Under Sixth 1378 refusing grant abuse to not its discretion Amendment, a criminal defendant has the The continuance. denial defendant’s present to establish his right to witnesses only motion for will be reversed continuance against of retaliation without fear defense court its when district abused discretion Texas, v. government. witness Webb prejudice. suffered serious defendant 95, 98, 351, 353-54, 34 Scott, 1389, v. 1393 United States (1972). govern L.Ed.2d 330 “[S]ubstantial (5th Cir.), -, 116 cert. U.S. a defense mental interference with witness’ 187 To obtain S.Ct. L.Ed.2d testify may process the due to violate choice grounds United States v. of unavailabili rights of defendant.” a continuance on the Cir.), Whittington, (1) F.2d witness, ty movant show of a must diligence that due was exercised obtain see, (1986); e.g., United States v. (2) witness; that the wit attendance of the Hammond, F.2d Cir. evi ness substantial favorable would tender 1979) (reversing agent FBI de because told dence; a witness was available “nothing witness that he would have fense (4) that of a willing testify; the denial if pending prosecution state trouble” but materially prejudice the continuance would testifying); persisted United States he (upholding defendant. Id. at 1394 denial (5th Cir.1977) Henricksen, F.2d defendant failed to dem continuance where (reversing government where threatened expert diligence obtaining onstrate due bargain potential plea if witness testi void testimony favor witness or that would be Smith, fied); able). Here, that Pick the court concluded (D.C.Cir.1973) (reversing govern where light ering’s testimony cumulative in prosecute if he ment threatened to witness witness, a another testimony defense trial). However, pending no due testified employee who testified as former OTSB long violation “so as the inves process exists OTSB and its sub relationship between prompted by is not tigation witnesses denial of a continu sidiaries. The court’s testifying, and so possibility witnesses ance, finding, this was not light of long government does harass or Whittington, them.” 783 F.2d at abuse discretion. threaten privilege sophisticated VI. defendants who are able to hide their assets from the court. government cross-appeals district court’s restitution order and its rul language exemption provision justice ing proposed on a obstruction of en gives the district court a certain amount of sentencing guidelines hancement under in determining discretion whether to consid regard Sellers. The er in assessing additional evidence restitu questions raised serious about whether Sell However, far, tion. thus courts have exer ers had concealed assets the district cised that infrequently only discretion through variety court of financial transac considering when difficult issues of causation sought present tions and evidence to that See, speculative e.g., loss. United States effect. The district court refused to consider Fountain, (7th Cir.1985) evidence, concluding that: (“[P]rojecting earnings lost future has no attempt get investigation, into an place sentencing in criminal if the amount or analysis of whether Mr. Sellers has assets dispute.”), present earnings value of those is report that he to failed and whether the t. cer amount of those assets he failed to (1986); 90 L.Ed.2d 191 United States report or not would would affect a restitu Bengimina, F.Supp. 218-19 would, feel, unduly complicate tion order I (W.D.Mo.1988) (refusing to allow “excessive prolong sentencing process. For litigation” satellite to evaluate worth of bank record, been, think, it has I seven or rupt corporation complicated because of is eight months since the trial has been com proof). Legislative history sues suggests pleted delays and a number of in sentenc 3663(a) avoiding is directed at ing go and we need to forward with that. lengthy resolution of questions. those sorts of noting After that the Resolution Trust Cor- 104-132, S.Rep. See reprinted No. poration pursue litigation civil could to dis- (“[I]t 1996 U.S.C.C.A.N. is the com recover cover and additional funds ón behalf mittee’s highly complex intent that issues re bank, of the the court declined to determine lated to the cause or amount of a victim’s possible the total amount of restitution loss not provisions be resolved under the pay partial ordered restitution restitution.”). mandatory language But the $2,000,000.14 3663(a) §of application does not limit its pursuant court acted district to the only to those instances involving causation or provisions restitution of the Victim and Wit- loss. (VWPA), Act ness Protection of 1982 agree We that the discretionary language 3663(a), §§ 3663-3664. Under U.S.C. may encompass statute cases where may court decline to order restitution “[t]o the assessment of full requires restitution the extent that the court determines that the hearings extensive to determine the defen- complication prolongation of the sentenc- where, dant’s financial resources and as a ing process resulting from the fashioning of result, the sentencing process inordinately an order of restitution under this section delayed. The record before us does not indi- outweighs provide the need restitution to cate the complexity level of involved in such a 3663(a)(l)(B)(ii); victims.” 18 U.S.C. see determination here. fully Without a 5El.l(b). more Yet, also U.S.S.G. the VWPA developed specific record and findings on the requires also a court to consider defendant’s complexity of , relating the issues ability Sellers’ pay. 3663(a)(l)(B)(i)(II). ability pay, we are unable to review the ar- gues district court’s refusal restitution to consider relevant order is erroneous reasons, “complication evidence. For because the these we prolongation” remand for exemption provision government’s does not allow a reconsideration of the request court to considering avoid evidentiary defendant’s financial re- for an hearing spe- more sources; contends, such reading, it findings. would cific outstanding

14. The balanced approximately $36 owed to OTSB was million. higher for much restitu- refusal a recommendation

The court’s consider persuaded tion.” we are not for obstruction of Because enhancing Sellers’ sentence hand, directly misrepresentations alleged conflicts Sellers’ justice, the other immaterial, probation re- Sentencing officer were we Guide with the dictates specific findings. factual To re- sentencing court’s factual mand review a lines. We issue, application solve enhancement the district clear error and its this findings for necessarily full- court conduct a Sentencing de novo. United need Guidelines Cir.1995), Dean, hearing fully evidentiary unravel blown States transactions; U.S. -, financial rath- S.Ct. Sellers’ various rt. ce (1996). er, simply ascertain he mis- Section must whether 3C1.1 represented nature of his instructs and extent Sentencing Guidelines the U.S. probation financial to the officer resources the court: such an enhancement is warranted. willfully obstructed or If the defendant or im- impeded, attempted to obstruct justice during

pede, the administration of VII. prosecution, or investigation, sentenc- sum, affirm the we convictions Seller offense, ing of the instance increase Dupre, on all counts. As to we by 2 offense level levels. However, sentence. we va- also affirm his Sentencing Manual Guidelines 3C1.1 cate for recon- Sellers’ sentence remand examples types One of the of his restitution order and sideration applies to which enhancement conduct the government’s proposal to enhance Sellers’ materially false “providing informa- includes justice. sentence for obstruction respect in probation to a tion to officer Accordingly, judgment the of the district presentence investigation or other for the part, in in court is AFFIRMED VACATED (n.3(h)). § 3C1.1 comment. court.” part, proceed- REMANDED further commentary defines “material” information ings opinion. with this consistent “that, believed, if would tend information affect issue under influence or the deter- DENNIS, Judge, concurring in Circuit comment, (n.5). § 3C1.1 This mination.” dissenting part. in part and application recognized has that “[t]he court majority opin- in respectfully I concur the discretionary.” §of 3C1.1 is not See United convictions, I 1186, affirming except that ion the Humphrey, States v. Cir.1993) difficulty assuming have that the district (remanding finding factual failing to submit court committed error perjury). defendant had committed whether materiality in its bank the issue of the judge refused to district consid eorrelatively as- fraud without instruction jus supporting er an obstruction of evidence suming materiality is of the that an element already tice enhancement. Because she had plain. now offense that the error restitution, not to order full she con decided Nevertheless, majority’s I re- concur any misrep evidence cluded that, I do not sult because believe his financial resources would be im resented complete analysis of the circumstances disagree. “A We statement material. case, present the error affected the defen- probation concerning officer one’s financial seriously rights or affected dants’ substantial obviously resources will affect officer’s fairness, public reputation integrity, pay.” ability United determination judicial proceedings. (3d Cusumano, States v. 943 F.2d Cir.1991), denied, 1036, respectfully majority’s I dissent from the cert. 502 U.S. (1992). fact, 881, and re- decision to vacate Sellers’ sentence S.Ct. mand for of the restitution probation officer in this case told the reconsideration indicates, that, majority opinion I there was order. As the court “had discovered addi n 3663(a)(l)(B)(ii) “[t]o I states properties out there would have U.S.C. tional Report the court changed my Pre-Sentence to a two extent determines complication prolongation the sentenc- point enhancement. I also would have made resulting fashioning only ing process issue before the court for determina restitution under this section might an order of tion that by have been affected it was provide need to restitution outweighs the restitution, question of additional which victims, may the court decline to make reasonably the district court had foreclosed provision This an order.” makes such in order to avoid prolongation excessive may be declined to the clear that restitution complication sentencing process. court finds that the that the difficul extent Cusumano, United States fashioning outweigh an order the need ties (3d Cir.1991), cert. 5E1.1(b); See U.S.S.G. for restitution. (1992), may S.Ct. 116 L.Ed.2d 785 Smith, 622-28 U.S. v. inapposite be because the misstatement Cir.1991), ability pay there tended affect (1992); L.Ed.2d 651 see also probation officer’s recommendation as to Bard, Inc., F.Supp. U.S. C.R. fines, an issue still under determination. On (D.Mass.1994); Acker, Jr., Mak William M. hand, alleged the other false statement ing Restitution: A Critical Sense Victim present case would be if material there Perspective, 6 Fed. Sent. R. 234 were other issues still under determination multiple delays Considering the and extend statement, believed, alleged that the if period sentencing hearing covered ed would tend to affect. prior proffer government’s to the of new complication and the additional evidence process

prolongation sentencing por thereby, the district court’s

tended determi that the difficulties

nation entailed allow

ing opening of new litigation areas of

outweighed the need for additional restitu

tion and- not an was reasonable abuse of discretion. America, UNITED STATES of qualifiedly majority’s I concur deci- Plaintiff-Appellee, respect

sion to vacate and remand with proposal government’s to enhance Sell- majority, Like I ers’ sentence. have Reymundo REYNA-ESPINOSA, been to determine whether al- unable Defendant-Appellant. leged false statement was material. Section No. 96-40499. provides 3C1.1 of the Guidelines “[i]f willfully impeded, defendant obstructed or or Appeals, United States Court of attempted impede, to obstruct or the admin- Fifth Circuit. justice during investigation, istration of prosecution, sentencing of or the instant of- July fense, increase offense level 2 levels.” thereunder, Application pertinent Note 3

part, provides: following “The is a non-ex- examples types

haustive list of

conduct to which this applies: enhancement (h) providing materially

... false information probation respect presen-

to a officer in to a investigation

tenee or other for the court.”

Application Note 5 states: “‘Material’ evi-

dence, fact, statement, information, section, evidence, fact,

used in this means

statement, that, believed, or information if

would tend to influence or affect the issue alleged

under determination.” The

statement would not if have been material

Case Details

Case Name: United States v. Dupre

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 11, 1997

Citation: 117 F.3d 810

Docket Number: 95-30275

Court Abbreviation: 5th Cir.