United States v. Hiram Stanley Sasser, II

conspired co- with at trial. Sasser TACHA, Circuit Before SEYMOUR Bizzell to se- Charles and John defendants BENSON, Judge.* District Judges, and mortgage loans cure seven HUD-insured TACHA, Judge. Circuit submitting false knowingly willfully with in connection Hiram documents to HUD1 appellant appeal arises out This During conspiracy, Sas- those loans. on one count of Stanley Sasser’s conviction for the employed as a loan officer one ser was 18 U.S.C. conspiracy under § Corporation, Mortgage Taiman Home fraud under U.S.C. count of mail § mort- approved lender in HUD-FHA making false state- counts and seven operated in program that gage insurance Housing Department ments to the The Bizzells were City (HUD) the Oklahoma area. under 18 U.S.C. Development Urban developers in the area of Mid- estate the fol- real appeal, Sasser raises 1010. On § * Benson, Judge to real estate inves- FHA insure loans District Dee V. The Honorable purchased occupants opposed Court for the District tors—as the United District Utah, sitting by designation. eighty-five percent up of a home—in amounts appraised is re- The borrower home's value. Housing Admin- 1. HUD administers Federal percent remaining quired put up fifteen mortgage (FHA) single-family home in- istration funds. program, his or her own program. which as a cash investment of surance Under financially qualified buyers, only to is available City, Oklahoma and were familiar order to obtain FHA west insurance for a mortgage property, loan on each mortgage insurance Sasser the HUD-FHA caused Taiman to application submit an program. commitment Sup- for insurance to HUD. arranged During late Sasser documentation, porting including verifica- single-family homes from purchase seven tion-of-deposit forms, accompanied ap- fi- Bizzells. These homes were to be plication. These represented documents through con- nanced Taiman. sales Sasser, borrower, possessed as falsely for each of these homes stat- tracts adequate complete financial resources to appraised price ed that the sales was the purchase of the property. They also However, property. value of the indicated that Sasser would make the re- them arranged pay with the Bizzells to quired investment of his own funds to com- fi- only the amount of the FHA-insured plete purchase. application The nancing provide for the that Taiman could commitment for insurance included a blank property. The documents purchase of each requesting por- that the borrower state the falsely the sale indicated associated with tion of his (Including own assets “Cash required per- paid that Sasser fifteen deposit purchase)” purchase on used to depos- form of cash cent investment blank, $61,- property. In this Sasser stated brought its and cashier’s checks to the 406, an amount included a fictitious however, properties; closings of the seven $50,000 deposit allegedly certificate of held any in fact used of his own Sasser never Republic at the First Trust Company of Instead, money. supplied Dallas, the Bizzells Texas. the cashier’s

funds that were used for McFerrin, arranged Sasser for Mark on checks, payments and the cash down were Republic behalf of Company, First Trust fictitious.2 verify deposit that certificate of on a verifi- form, cation-of-deposit which later was sent began investigate these When HUD through the mails to Taiman and then to transactions, initially the Bizzells told an HUD. The evidence indicated that Sasser investigator paid had the cash that Sasser $50,000 deposit held a never certificate payments supplied the cashier’s down Testimony Republic. at First at trial indi- Later, funds. checks from his own Republic cated that First was dormant at investigator to the Bizzells confessed time, authority did not have to issue paid represent- had not the amounts Sasser deposit, certificates of and never issued coming ed in the documents as from his addition, In any deposit. certificates of own funds. tax accountant testified that Sas- however, admission, Following Sas- reported ser never interest from such apparently ser and the Bizzells concocted a deposit his 1985 or 1986 certificate story the amounts on the cover shown tax returns. The evidence also revealed paid by represented a documents as Sasser that, prior several months to the date Sas- percent fifteen to seventeen real estate $50,000 certificate ser claimed to own by on the sales. commission earned Sasser application to deposit, he filled out an supposedly These commissions were credit- personal refinance his home. Sasser did to eliminate the ed to Sasser the Bizzells existence of the certificate of disclose pay any money him to of his own deposit any comparably need for sized asset on or of liqui- complete Finally, upon the transactions. The docu- application. Company, Republic ments with the sales and loans dation of First Trust associated the Texas any such real estate com- Sasser never filed claim with did not disclose $50,000, liquidator to recover even state missions. by obtaining ing names and cash- both Sasser’s and the Bizzells’ 2. The Bizzells assisted Sasser present- closing represented payment funds and ier’s checks from their own ing of real- used at the closing pay- as Sasser's down them at to Sasser for the sale of the tor’s fees owed closing and the Bizzells ments and costs. Sasser properties. investigators told that cashier’s checks contain- counts, government dis- remaining the funds held maintained though he prejudice. those counts with em- missed deposit had been certificate in the company. by that bezzled court the district judgment, In a written two-year to concurrent sentenced Sasser for in- commitment application 3-9, counts consecu- prison terms on run included a also property on each surance Sasser one-year sentence that tively with fill in the the borrower requesting blank On for an earlier conviction. had received existing “purchase required “amount” sentenced 1 and the district court counts blank, falsely stated Sasser home.” prison without four-year terms Sasser value of appraised equal to amount sentence, a consecutive any provision for requesting blank In another property. provision had been made although such a from borrower” of “cash the amount sentencing hearing. On during the orally falsely stated credits,” Sasser “other 11, 1991, notice of Sasser filed his October How- pay himself. he did not amounts judgment. Five from October appeal impression ever, created amounts these later, the district days on October borrowed, insured that the amount judgment on written entered an amended percent eighty-five HUD, exceed judgment its own amended initiative. appraised value. properties' four-year on sentences stated that on the certification signed borrower’s consecu- 1 be served Counts and 2 would for commitment application for of back filed a sentence. Sasser tively to other included the This certification insurance. judg- amended appeal of from the notice certifies that statement, Borrower “The 28, 1991. ment on October II is true and in Section the information ... knowledge his/her of correct to best DISCUSSION and belief.” payments on all sev- timely Sasser made I. applying for five new After properties. en unlawfully argues that he was Sasser loans, traded the five Sasser HUD-insured jeopardy by his trial subjected to double John Bizzell bought from properties he Prior to the sentencing on all counts. and different for five Bizzell Charles Kent case, convicted on a was trial in this Sasser Bizzell also credited properties. Charles conspiracy and un of separate indictment $8,000 allowance an trade-in Sasser with charges involved derlying substantive properties. Charles the five each for Sasser, in his in which criminal conduct properties to five resold the Bizzell then officer, fraudulently fa a position as loan HUD-insured assumed the individuals who acquisition financ of HUD-FHA cilitated proper- Each assumption. by simple loans eighty-three properties. United ing on into foreclosure. subsequently went ty No. CR-90-101-W Gary, v. States 1990, was indict- February Sasser in (W.D.Okla.1991), part, in rev’d On aff'd Cir.1992). (10th the United conspiracy to defraud Before part, for 971 F.2d 470 ed case, 371 U.S.C. Sasser filed a began of 18 in this § States in violation the trial 18 mail conspiracy in and (Count 1), fraud violation to dismiss the mail motion 2), making grounds. false (Count charges jeopardy double 1341 fraud U.S.C. § motion, and denied the purposes obtain- The district court to HUD statements ruling (Appeal No. appealed in violation Sasser ing federally insured loans 91-6205) stay the trial 3-16), making, sought a (Counts 1010 18 U.S.C. § appeal. The agency pending in the resolution federal false statements 21). stay. sub (Count court Sasser district denied 18 U.S.C. 1001 violation of § dismiss the other sequently moved to trial, convicted on jury Sasser After a count, jeopardy in the on double count, counts indictment fraud conspiracy mail court also denied grounds. The district charging false counts and seven ruling in appeals (Counts 3-9). this motion. After Sasser to HUD statements 91-6263. Appeal No. on the not reach a verdict did

1549 argues prior Jeopardy that his conviction whether the Double Sasser Clause bars conspiracy Gary in the case bars the prosecutions, successive “a court must first conspiracy prosecution in this case. Sasser apply the traditional Blockburger test. If all of the loans in- asserts that because application of that test reveals that alleged conspiracies fur- volved both statutory offenses have identical elements objectives the shared of the loan thered or that one offense is a lesser included group one participants, and because other, inquiry offense of the then the must other, conspir- single .the loans benefitted cease, subsequent prosecution acy encompassed groups of loans.3 both barred.” Id. at 110 S.Ct. at 2090. If prosecution is not barred the Block- argues district test, burger then the Jeopardy Double using “same Blockburger erred evi prosecution Clause still bar the if the jeopardy in the dence” test to decide double government, “to establish essential ele- conspiracy prosecu context of successive States, charged prosecu- ment of an offense in that v. Blockburger tions. See 299, 304, tion, prove 76 will S.Ct. conduct that constitutes an (1932).4 review de novo the L.Ed. 306 We offense for which the defendant has al- legal regarding district court’s conclusion ready prosecuted.” been Id. at v. jeopardy claims. United States double at 2093. (10th F.2d Cir. Raymer, 941 Cardall, case, 1991); In this find no error (10th Cir.1989). We will not over denying district court’s order mo factual conclusions turn the district court’s engaging in jeopar tion. Before its double they clearly unless are erroneous. United dy analysis, the district court reviewed Rogers, Supreme Grady. Court’s decision in Cir.1992); 1037; Raymer, 941 F.2d analysis that the in district concluded 1483, 1486 Jones, v. 816 F.2d Grady Blockburger did not bar the (10th Cir.1987). prosecution in this case because Sasser’s prosecution second involved different 508, Corbin, 110 Grady In v. 495 U.S. entirely 2084, (1990), events and different facts. We 548 the Su- S.Ct. 109 L.Ed.2d agree. preme stated that to determine Court Puckett, (10th jeopardy argument, part Sas- 4. In United States v. F.2d 663

3. As of his double 692 denied, 1091, 579, Cir.), erred in ser contends that the district court assigning cert. S.Ct. 459 U.S. 103 establishing denied, him the burden of (1982), 460 U.S. 74 L.Ed.2d 939 cert. Although recog jeopardy double claim. Sasser (1983), explicitly adhere to 1024 we decided to proof the burden of is nizes that in this circuit test, Blockburger the "same but we evidence” defendant to demonstrate that two con on the “recognize[d] re that it has been criticized in spiracies jeopardy pur are the same for double years inadequate cent as an measurement of 1483, Jones, poses, v. F.2d see United States 816 jeopardy applied multiple prose double when Cir.1987), (10th change he asks us to 1486 conspiracy charges." Id. at 668. cutions for position light in the of decisions of other cir urged appellants in Puckett us to One of Ragins, v. 840 F.2d cuits. See United States favor of a abandon the "same evidence” test in 1184, (4th Cir.1988); 1191-92 United States v. "totality adopted of the circumstances” test in Inmon, 326, (3d Cir.1977), F.2d 329-32 cert. 568 determining whether several other circuits for denied, 121, 62 L.Ed.2d See, e.g., separate conspiracies two exist. (1979). already Because a trial has occurred 79 (11th Benefield, States v. Cir.1989); 874 F.2d 1506 case, assignment we conclude that in this of Liotard, F.2d United States v. 817 proof pretrial stage longer at the is no burden of case, (3rd Cir.1987). & n. 7 In this 1078 jeopardy resolution of the double relevant to the suggests "totality adopt Rather, Sasser also that we a of simply must address wheth claim. we Puckett, conclud the circumstances” test. In we in this case er Sasser’s convictions violate the ‘totality Jeopardy of circum Clause. See United States v. ed that "whether the Double Cir.1988) (3d Ciancaglini, F.2d n. 3 858 926 evidence’ test stances’ test or the 'same [was] ("The jeopardy double issue is not moot because applied,” the evidence indicated the existence of dispute parties a remains between the as to Puckett, conspiracies. separate 692 F.2d at 668. appellant can be convicted for this of whether jeopardy survive fense. The double issue would trial."). a 1550 First conspiracy, McFerrin caused charges Gary of “if two held We have verify to Tai- Company to Republic a defen- Trust fact based are in

conspiracy strawbuy- conspiracy, single accounts in a man nonexistent participation dant’s Republic. second at First jeopardy purported clause bars ers have the former Daniels, v. First conspiracy, McFerrin had prosecution.” United States Bizzell Cir.1988). (10th To verify 1393 certif- Republic Sasser’s non-existent in participated a whether Sasser deposit. determine The mere involvement icate of conspira- separate two single conspiracy or Garys with both Sasser McFerrin and analysis is cies, point of the “the focal Bizzells does not establish interde- and the co-conspirators were alleged whether Rather, interdependence in- pendence. pur or goal common unlawful united a “whether the ac- volves determination F.2d 921 Daily, pose.” United States co-conspirators in alleged tivities [the] — denied, Cir.1990), (10th cert. charged scheme were aspect of the one -, 116 L.Ed.2d U.S. advantageous to the necessary or success is whether (1991). principal concern “Of co-conspirators anoth- of the activities alleged co-conspirators, the conduct scheme, or the charged aspect er far-ranging, exhibits diverse however Daily, as a whole.” of the venture success Id.; United States interdependence.” 1007; Evans, 970 F.2d at 921 F.2d at Cir.1992) Evans, alleged (“what proof is is needed [the interdependence (to necessary show together to act conspirators] intended required is a single conspiracy, “[w]hat within their shared mutual benefit just objective, not showed, criminal single conspiracy”). scope of the simi- objectives between parallel or similar conspir- Gary evidence that people”). larly situated of the Bizzell the success acy furthered and the reviewing indictments After the commissions conspiracy is that without trials, conclude from transcripts both conspiracy, during Gary earned involving conspiracy the earlier participated the Bizzell could not have con- conspiracy) (the Gary Garys cannot This alone conspiracy. involving Bizzells spiracy in this case finding interdependence be- support a simply cannot (the conspiracy) Bizzell Gary con- not show that the cause it does for double offense as the same construed designed to further and to spiracy was conspira- Gary In the purposes. jeopardy conspir- of the Bizzell promote the success as a loan offi- position his cy, used Sasser merely Instead, argument acy. Sasser’s arrange phony “straw- to cer at Taiman in one participation that his demonstrates to certain temporary title buyers” to take par- him with funds to conspiracy provided Bryn Gary. Unit- See properties owned in ticipate another. (10th Sasser, 971 F.2d 470 v. ed States pur- Cir.1992). had These transactions has failed to demonstrate Sasser also freely transferrable securing in pose participants of the two that of financing other- that insured HUD-FHA conspiracies Sasser himself —besides Gary. to Straw- unavailable knowledge would be wise possibly McFerrin—had properties buyers then re-transferred existed. two conspiracy The that the other investing the amounts ever Gary without independently of one operated conspiracies falsely stated that were funds of their own another, depen- the success of each with documents. application and loan on the sale of individual exclusively on the labors dent Id. at 471-72. Thus, own, participants. separate its “totality of under either conclude that role conspiracy, Sasser’s Bizzell evi- test or “same the circumstances” properties. purchaser of of was that test, record demonstrates dence” dif- These involvement. Garys had no conspiracies existed and that separate distinct, two inde- suggests two alone ferences by the was not barred prosecution Sasser’s support his claim conspiracies. To pendent Jeopardy Clause. See United Double on the Sasser relies interdependence, (10th Puckett, 692 F.2d In the McFerrin. of Mark involvement 1409; Francisco-Lopez, de denied, 103 S.Ct. Cir.), 459 U.S. cert. denied, (1982), Fingado, cert. L.Ed.2d 939 — Cir.), denied, U.S. -, 75 L.Ed.2d 1166 cert. (1991). 116 L.Ed.2d 262 (1983). gave following court in- The district II. knowledge”: “proof struction on prosecution on contends Sasser may knowledge The element of be sat- the false statement count and mail fraud actually proof person isfied that a with Jeopardy by the Double is barred counts something, as knew or was aware the “scheme argues that Sasser Clause. actions, or demonstrated words or fraud of- the mail element of defraud” proof by inferences from drawn previ- fense, was as described Count deliberately eyes closed his defendant the con- as an element of ously prosecuted what would have been obvious otherwise case. Sasser charged Gary in the spiracy finding beyond him. A a reasonable him prosecute 3-9 that Counts also asserts conscious, purpose of a to avoid doubt of a mental state the formulation learning permit an infer- the truth would conspiracy prosecut- element was an way, knowledge. Stated another ence of Essentially, Sasser Gary case. ed in the knowledge a fact a defendant’s only a that because more contends once inferred from willful blindness be conspiracy conspiracy existed—a single existence of fact. to defraud encompassed his scheme entirely you as to whether up It is sec- to HUD—his statements and his false knowledge you any actual or aware- find Jeopar- the Double prosecution violates ond closing eyes, of deliberate ness that two Because we conclude Clause. dy inference to drawn from such and the existed, ar- conspiracies Sasser’s separate is, evidence, such evidence whether The mail fraud merit. gument is without guilt or consciousness of indicates a state- alleging false and the counts count showing negli- of mere nothing at all. A directly to in this relate to HUD case ments sup- not sufficient to gence or mistake is. Bizzells and conspiracy with the finding knowledge. port a conspiracy implicate his any way do not imper- instruction asserts that this Sasser , Therefore, the Double Garys. with the ignorance” the “deliberate missibly used does not bar Sasser’s' Jeopardy Clause de that we cautioned standard 2 and Counts 3-9. under Count prosecution 939 F.2d at Francisco-Lopez, III. Francisco-Lopez, the defendant In de intent to possession convicted that the district contends indictment stated cocaine. distribute submitting an instruction erred in intentionally ‘knowingly and he did “that finding of knowl authorized jury that a the approxi- to distribute possess with intent purpose to avoid edge based on a conscious (15) a kilograms of mixture mately fifteen the ade learning truth. To evaluate the cocaine, II controlled containing Schedule a instructions, we examine jury quacy of ” n The district 1407. Id. at substance.’ novo apply a de a whole and them as following instruction: gave the propri the to determine of review standard es- knowledge may be The defendant’s jury instruc individual tendering an ety of proof that the defendant Barbee, 968 tablished v. United States tion. See that high probability the of a Cir.1992); was aware (10th 1033 F.2d despite unless narcotics materials were Francisco-Lopez, v. de the facts show that high probability this Cir.1991); (10th 1405, 1409 that actually believed the the defendant Sanchez-Robles, F.2d 1073 927 narcotics. Knowl- were not a materials Cir.1991). tender of the We review were narcotics edge that the in the materials] ignorance jury instruction deliberate that circumstances may inferred from government. be the favorable to light most instruction, per- erate and the average ordinary an indifference would convince quantum the of evidence the defen- this is fact. son that Barbee, F.2d at dant.” 1033. (alteration original). Given Id. at 1411 government, we presented facts the the Francisco-Lopez, we a bar de crafted improp- instruction was that this concluded ignorance instruction, ab- the deliberate ignorance er. We that “the deliberate held evidence, sent for two supporting reasons. not tendered to the must instruction First, “high probability” “average the evidence, circumstantial or di- jury unless ordinary person” language suggest could rect, to show that the has admitted been jury that a mere the conviction based on operant the knowledge of defendant denies negligence—rather knowledge—was than conduct includes fact and the defendant’s 1410-11; Barbee, appropriate. Id. at knowledge actual to avoid deliberate acts Second, F.2d the at 1033. we believed that 1411. fact.” at operant that Id. ignorance might shift deliberate instruction prove to the his or burden defendant Here, admits it government that innocence, Francisco-Lopez, her de present evidence related did not Finally, reviewing after at knowledge support a deliberate that would record, found that “none of the evi- The ignorance instruction. sufficiently dence at presented trial [was] states its brief “[a]ll probative the element of deliberation” to proving was actual directed ignorance justify a deliberate instruction. figures he stated on ly knew that Id. assets, for his for the relevant forms cash and for amounts properties, cost instruction in this case stands from own funds paying he was were given stark instruction in de contrast - However, government con false.” Francisco-Lopez. The de Francisco-Lo- to the Bizzells tends that evidence related pez phrases “high instruction used knowledge of false informa and their what probability” “average ordinary per- sup placed on the HUD forms tion Sasser an imply objective of which son”—both ignorance a instruction. ported deliberate possibly jury could lead a standard evidentiary course, issues related to the Of proper standard con- conclude that knowledge are irrelevant to the Bizzells’ instruction, negligence. viction In our appeal. by Sasser in We issues raised possibility there is no could not into whether the evidence need delve applied objective have standard to con- deliberately suggests the Bizzells specifically vict instruction Sasser. learning the truth because we con avoided subjective a employed a standard—“that if the court erred clude that even district deliberately eyes closed defendant ignorance instruc by giving the deliberate what otherwise have been obvious to tion, clearly was harmless be error importantly, him.” Most instruction to Sasser. yond a doubt as See reasonable genre. “high probability” was not of the 18, 24, Chapman California, 386 U.S. Rather, phrase used this instruction (1967) 17 L.Ed.2d blindness,” stating “willful that “a defen- (harmless “beyond a occurs if reason error knowledge of fact be inferred dant’s complained the error of did able doubt [] from willful blindness to the existence of obtained”). verdict contribute fact.” Not did this instruction standard, imply negligence a the district that, Barbee, determining in In stated jury—immediately explicitly told the ignorance a in- giving whether deliberate following language— the willful blindness harmless, we must “look struction was showing negligence that of mere or wording giv- instruction precise “[a] support find- en, negate mistake is not sufficient to a the other instructions whether Further, ing knowledge.”5 the district effects of the erroneous delib- adverse J., (Baldock, jury co-Lopez, recognize that the in de Francisco- at 1419 dissent- 5. We However, finding negli- Lopez gence ing). given jury also' was instructed that a this was See de would not sufficient. Francis- court made sure that knowledge” willful knowl- that had falsity [Sasser] edge instruction would shift the burden Barbee, of statements in the HUD forms. including again proof by within the conclusion, 968 F.2d at 1035. In we hold — language of the instruction itself—the that when sufficient evidence of a defen- jury “beyond statement that must find guilt exists, dant’s tendering of a “will- purpose a reasonable doubt a conscious [ ] ful blindness” instruction is harmless be- learning the truth” it avoid before could yond a reasonable doubt even when the Barbee, knowledge. infer In we reviewed government does not introduce evidence to an instruction identical in all material re- support theory. such a spects and concluded that “there was little jury risk that this convicted [the defendant] IV. using negligence a or recklessness stan- argues Sasser also that the district Barbee, dard.” 968 F.2d at 1034. Like- refusing requested court erred in two in wise, we conclude that the “willful blind- supporting structions his defense that the ness” in this instruction case neither shift- property prices sales stated in the HUD proof jury ed the burden of nor allowed the applications literally were correct. The negligence to convict Sasser based on a requested provided first instruction standard. question a interpreted can be in more “[i]f government importantly, Most intro- way, than one the Government must show duced detailed and substantial evidence beyond a reasonable doubt that there is no demonstrating knowledge Sasser’s actual interpretation response reasonable activity. of his fraudulent The trial evi- factually make it correct.” The clearly actually dence showed second instruction stated that sales “[t]he regard- knew that the statements he made price buyer legally of real estate is assets, ing proper- his cash cost of obligated pay price is the in stated ties, paying and the he amounts from buyer’s written contract with the seller.” his own funds were fraudulent. “[B]e- contends that these in jury cause the was also instructed that it justified structions were not because the theory could convict based on of actual support evidence did not such a defense knowledge, any error is harmless if there theory. agree. We support was sufficient evidence to the con- price Sasser contends in that because the theory.” under that victions parties’ Rivera, written sales contract was the Cir. law, 1991). price valid under Oklahoma applications interpreted HUD loan could be the nature of the Given instruction dis seeking price as in as stated the written above, difficulty cussed no we have con argues jury contract. Sasser that the rea- cluding error this instruction sonably could have concluded that the loan could not have to the verdict. contributed provide applications required Sasser to —Evatt, U.S. -, -, Yates v. See regard- price in the sales stated contract — 1884, 1893, (1991)(to L.Ed.2d 432 or price less of was inflated whether conclude that an error did not contribute to Thus, fraudulent. under United States v. verdict, we must “find that the error (2d Cir.1963), Sasser Diogo, 320 F.2d 898 unimportant in everything relation to [is] the district court erred de- asserts that else the considered on the issue in clining give his instructions to two record”). question, as revealed in the jury- “willful instruction in this case blindness” charged implicate Diogo, the defendants were does not the concerns we ex marriages with pressed concerning entering into sham Francisco-Lopez in de non- in order to obtain “high probability” More American citizens instruction. over, under 8 U.S.C. immigrant status presented, quota based on the evidence “a 1101(a)(27)(A). reversing the defen- jury compelled reasonable to find would be § ignorance admonition within in- struction itself. the deliberate 1554 provide closing 1001 credited to him at the to his under 18 U.S.C.

dants’ convictions § in the properties. cash investment statements, court found that for false not “mar- marriages were although the “A defendant is entitled to an instruction meaning statute riages” within the legally theory defense if it is sound enter, they val- that aliens to were allowed supported by presented at evidence York, marriages laws of New id under the Ratchford, trial.” United States v. 942 resided. The Second where the defendants (10th Cir.1991), F.2d 707 cert. de — deciding whether Circuit was faced with -, nied, U.S. the state- government “established (1992). reviewing L.Ed.2d 427 After regarding mari- appellant of each ments evidence, applications par HUD and the false, these state- tal were ticular, status we conclude that Sasser’s defense appellants to be known ments were legally supported by not not is sound and is at they time were made.” Id. false at the presented the evidence at trial. long “so as falsi- 903. The court held that Y. prosecution a criminal

ty is an element of to representations respect for false argues that the district Sasser validity one's marital status ... permitting court erred in his conviction prose- to marriage will be material such on concealment of material facts. based govern- Because the cution.” Id. According indictment, false or fraud to the invalidity prove ment did allegedly misrepresentations ulent were law, re- forms, under the court marriages including ap state made on HUD several false versed the statement convictions certificate of commitment plications for upon argues is the Gov- that “it incumbent and settlement statements. Sasser stated negative any inter- that these HUD forms did not bear current reasonable ernment control issued the Office of make the numbers pretation that would defendant’s Budget (OMB)and, Management and there factually correct.” at 907. statement Id. fore, penalized failing he cannot be Here, that the district Sasser contends response these provide information in al- given an instruction court should have forms. he lowing the to determine whether of Title 44 of the United Section 3512 interpreted reasonably could the HUD have Act) (the Paperwork Code Reduction States application requiring applicant as that an provides, specified in the provide purchase price Notwithstanding provision any other re- application HUD sales contract. The law, subject person shall no state “cost” quires applicant that the failing provide or penalty maintain purchase and the “contract property any agency if the informa- information any reason- price.” cannot conceive of We request made tion involved was collection interpretation support Sas- able that would 31, 1981, and does not after December Sasser, experienced argument. ser’s display as- a current control number officer, he have us loan believe Director, fails to state signed by the or reasonably could have misunderstood subject this request that such require he state a fictitious form to chapter. application simply price in the HUD sales Weiss, fraudulently had inserted this In United States he because — denied, (2d Cir.1990), U.S. of sale. cert. price term in the contract same -, 115 L.Ed.2d he mis- presented no evidence that Sasser held (1991), Circuit in this the Second forms understood Paperwork Act Indeed, Reduction only introduced section of the fashion. protects fail to file individuals who suggesting purchase protect information. those who It does not sále were price the contracts of stated Id.; see also United accurate, commis- file false information. factually that he earned Collins, 630 n. each on the sions from the Bizzells sale — U.S. -, denied, (10th Cir.1990), cert. were property, and that the commissions (1991). 111 S.Ct. 114 L.Ed.2d 108 in carry were fact used to out the scheme Thus, information, if Sasser filed false and if the by partici- use of the mails pant somebody whether the forms contained current OMB or else was reasonably numbers is irrelevant. foreseeable.

Here, the record reveals that Sasser did Sasser asserts that “reasonably the fore- indeed file false information. On language various seeable” does comport forms, falsely HUD Sasser stated his cash statutory requirement that the defen- assets, falsely proper- stated the cost of the “knowingly dant causes” use of the mails ties, falsely and stated that a certain in furtherance of a scheme to defraud. See amount of his own funds would used to be U.S.C. § complete purchase. Sasser contends Section 1341 “makes it a any crime for government introduced evidence person to mail knowingly or to cause to be that he failed to disclose information to by delivered mail pur- matter for the jury HUD and that the prem- could have pose executing a scheme to defraud.” guilty ised its verdict on such a failure. He Pisciotta, United States v. 469 F.2d further asserts that this “failure to dis- (10th Cir.1972). Thus, to obtain a con- implicates Paperwork close” evidence government viction under must § disagree. Any Reduction Act. We “fail- “(1) establish two elements: a scheme to ure to disclose” evidence introduced defraud, (2) mailing of some mate- government served to refute defense purpose executing rial arguments evidence. The evidence and for- Id.; scheme.” see also United States v. government prove warded Sas- Taylor, (10th Cir.1987). 832 F.2d guilt ser’s related to Sasser’s affirmative Here, Sasser contends that the district false statements on forms submitted to in instructing jury court erred on the Thus, pro- HUD. because 3512 does not § requirement scienter for the second ele- against prosecution tect an individual for ment. making false statements on States, Pereira forms, Sasser’s cannot conviction be re- (1954), 98 L.Ed. 435 the Su- ground. versed on this preme interpreting 1341—stated § Court— “[wjhere one does an act with knowl- VI. edge that the use of the mails in will follow business, ordinary course of or where

Sasser claims that the district court reasonably foreseen, can such use even authorizing erred in a mail fraud conviction intended, though actually then he solely foreseeability based on the of the 8-9, ‘causes’ the mails to be used.” Id. at alleged mailing, rather than on actual 363; 74 S.Ct. at see also United States v. knowledge. gave The district court Hollis, (10th Cir.1992) following jury: instruction to the (applying foreseeability test reasonable The use of the in United States mails 1341); “knowingly caused” standard of § furtherance of the scheme to defraud is Thus, Pisciotta, 469 F.2d at 331. the dis- an essential element of this offense appropriately trict court instructed the indictment, charged in the but it is not finding foreseeability that a of reasonable necessary that the item mailed show on mailing sufficient for a convic- its face that it was mailed furtherance tion under statute.6 scheme, or the defendant Stanley Hiram Sasser did actual VII. mailing, participants or that the specifically argues the district court fraud intended the mails permitting questioning is if about his be used. It sufficient the mails erred statute, argues the lan- § 6. Sasser that Sixth Circuit’s decision in different 18 U.S.C. Schankowski, Therefore, guage "knowingly willfully." United States v. 782 F.2d 628 However, 1986), controlling Cir. should be here. opinion inapposite. Sixth Circuit’s interpretation Schankowski involved the of a 1556 441, 444, States, 406 92 government investiga- U.S. speak gar to to

refusal (1972)). to 212 and about his failure offer evidence 32 L.Ed.2d tors S.Ct. the investigators HUD existence to then invoked his We concluded Burson $50,000 deposit that he the certificate against privilege self-incrimination and on a form as a cash asset. listed HUD right once a invokes his to “that defendant prosecution’s the Sasser contends silent, impermissible for the remain it is impermissible questioning ad- constituted any Amend- refer to Fifth prosecution to the of his Fifth verse comments on exercise rights defendant exercised.” ment which against Amendment right self-incrimina- Id. at 1200-01. tion.7 Burson, colloquy In contrast first to During prosecution’s case-in- the implicate Fifth Amend- does not Sasser’s chief, colloquy following the occurred be Sasser, right to unlike ment remain silent. prosecutor the and the investi tween HUD Burson, personally informed never gator: agents speak not wish with he did to Now, interview, you Q: did after Instead, at Tai- supervisor them. Sasser’s again talk Mr. Sasser? agents no man told HUD that Sasser loans. A: Not about the No. The Fifth longer wished to talk with them. Q: Why privilege Amendment self-incrimi- not? personal privilege. nation is a Couch See Tai- superior A: Mr. Dennis at [Sasser’s States, 93 v. United U.S. longer told that Mr. Sasser no us man] (“The (1973) 34 L.Ed.2d 548 us, S.Ct. anything to to we wished talk prohibits compelling explicitly Constitution needed to to him he wanted talk about him- ‘against accused witness an to bear writing in contact—[Defense necessarily proscribe in- self’: it does not Objection] criminating anoth- statements elicited from objection, stated After the the district court er.”). simply privilege could not be is, I it at the that “the status of moment Thus, by supervisor. invoked contends, think, not troublesome.” Sasser impermissibly not comment prosecution did Burson, 952 — based on United States right to re- on Sasser’s his invocation (10th Cir.1991), F.2d 1196 cert. denied silent. main U.S. -, L.Ed.2d (1992), prosecution’s questions asserts that the HUD Sasser also ruling questions in permitted investigator’s testimony never that Sasser rights. his fringed on Fifth Amendment documents related to his claimed provided disagree. We $50,000 deposit response certificate of Burson, addressed similar situa- we his Amendment subpoena violated Fifth During investigation Inter- tion. At tri against self-incrimination. privilege (IRS), agents nal Service two IRS Revenue following al, prosecution adduced the residence, soon left arrived Burson’s but investigator: testimony from a HUD apparent it became that Burson when 12th, Q: Directing you August cooperate or answer of their you can tell the members trial, questions. prosecu- At Burson’s re- happened on that date with what re- agents if Burson had tor asked both spect sequence of events in questions sponded agents’ to the concern- the—your of these seven loans? audit ing his and another individual’s tax affairs. 12th, Mr. Sasser and August A: On agents that Burson did each stated Mr. Strickland came Mr. Johnson and recognized respond. We first that “[t]he response HUD office privilege against can be self-incrimination At that subpoena had issued.... any investigatory adjudicato- asserted in or time, docu- furnished some ry proceeding.” (citing Kasti- we were Id. at against himself.” pro- case be a witness criminal 7. The Fifth Amendment of Constitution person compelled vides that no "shall be Although mentation. being not all the docu- incriminated compelled own requested mentation we had testimonial communications.” Id. at asked— furnished, they provided what had However, 96 S.Ct. at 1580. the Court not- with, CD, 50,000 us as far as the ed that lic Trust that we had asked for them to not do. We received no documentation to what a [sic] certificate of show show opinion ^[*] ownership ownership trust ^[*] from the trust deposit company ^[*] of, of the CD. from First they ^[*] could or could company provided a ^[*] Repub- as. ^[*] papers produced. Compliance control na tacitly concedes the existence of the communicative sponse aside from the [t]he act of producing evidence in demanded and their to a the taxpayer. subpoena aspects contents of the of its with the nevertheless has It also would possession own, subpoe- wholly papers re- or Q: Howell, taxpayer’s indicate the Ms. at that belief any time or at thereafter, papers

date are those your knowledge subpoe- described 26th, na. today, July even as of has HUD audit any ever received 410, Id. at 96 S.Ct. at 1581. In United ownership, of any evidence of the exis- Doe, 605, 1237, States v. 465 U.S. 104 S.Ct. $50,000 tence from that man of a cer- (1984) 79 L.Ed.2d I], Supreme [Doe deposit tificate of Republic from First Court revisited the issue of whether the act Trust Dallas? of producing a document could itself be objection

[Sasser overruled.] incriminating. The Court stated that “[al A: To the my knowledge, best of though the contents of a may document any have not received documentation privileged, be producing act of the doc ownership 50,000 to show the of a CD may ument government be. A subpoena Republic in the First Trust or that a compels the holder of the per document to $50,000 deposit certificate of ever ex- form may an act that have testimonial as isted in the name of Stan Sasser. pects and an incriminating effect.” Id. at (citations omitted). 104 S.Ct. at 1242 government The asserts that testimony did not relate to exercise of a Fifth In City Department Baltimore So- privilege. government Amendment ar- cial Bouknight, Services v. 493 U.S. gues production subpoenaed of the (1990), 110 S.Ct. 107 L.Ed.2d 992 documents would not have had testimo- woman, Court faced issue of whether a aspect incriminating nial with an effect legal child, the mother and custodian of a and, therefore, is not entitled to Fifth privi- could invoke her Fifth Amendment protection. Amendment lege against self-incrimination to resist a occasions, Supreme On several produce Court court order to the child. The recognized production has began analysis of docu- Court its by noting that physical objects ments or has a testimonial demands that an “[w]hen aspect or independent produced, communicative item only thing compelled ‘the ” thing produced. the contents of the producing In is the act of Id. at [item].’ States, 554-55, Fisher, Fisher v. (quoting United 425 U.S. 110 S.Ct. at 905 (1976), gov- 11) 48 L.Ed.2d 39 425 U.S. at 410 n. 96 S.Ct. at 1580 n. sought compel (alteration ernment production in Bouknight). The Court then accountants’ documents that were stated that Fifth pro- Amendment’s “[t]he possession attorneys taxpayers implicated tection nonetheless be be- investigation possible who were under complying govern- cause the act of with the liability existence, civil or criminal under federal tax ment’s demand testifies to the Supreme possession, laws. The authenticity things Court stated that “the or Fifth Amendment by produced.” Bouknight would not be violated Id. claimed that papers contempt requiring the fact alone that the on their face production order might taxpayer, incriminate the for the the child violated her Fifth Amendment privilege protects person right a to remain silent “the act of because Barth, testimony re- amount

production would denied, Cir.1984), (2d cert. possession over and control garding her (1985), the 84 L.Ed.2d subsequently The Court Id. child].” [her presi whether Circuit addressed Second concluded argument and rejected this compelled to corporation could be dent of privilege may not invoke “Bouknight returns possess tax did not testify that he she has order because production resist defendant sought by the IRS. The produc- related to duties custodial assumed to file individ investigated failure being required as production and because tion tax re income corporate federal ual and regime.” regulatory noncriminal of a part that the defendant’s court held turns. Id. these possess he did not that “admission discussion, this case above light of the chain of link in the ‘furnish a would returns unique situation. somewhat for a presents prosecute to [Barth] needed evidence that therefore, po documents Here, requested would HUD crime’ federal $50,000 at 187 self-incriminating.” the Id. of tentially existence verify the States, 341 pro- (quoting never deposit. Sasser of certificate Hoffman L.Ed. documents, HUD never U.S. any duced omitted). According (citations (1951)) tri- production. At their compel sought to Amend Fifth on the defendant’s ly, based in- prosecution then the al, objection, over held Circuit rights, the Second ment the produce to failure troduced not be testimony could defendant’s the evi- guilt of his as evidence documents —as compelled. did not deposit of the certificate dence testimony in this evi- reviewing the whether this must decide After We exist. im- prosecution the pro- case, we conclude failure to testimony of Sasser’s dence— exer- on Sasser’s commented permissibly documents— exculpatory potentially duce self-incrimina- against privilege of his cise Fifth Amendment upon Sasser’s infringed the case, it was essential In this tion. We against self-incrimination. privilege of certificate prove the government to did. that it conclude step in a first exist. As did not deposit F.Supp. Karp, 484 In United attempted to case, government the their a simi- faced (S.D.N.Y.1980),the court could that Sasser any documents subpoena the charged government The lar issue. existence to related the produce that the to defraud conspiracy “with defendant point, Sasser this deposit. At of certificate creating ficti- by Service Revenue Internal to fail dilemma—either a difficult faced by to be used transactions tious business that he or subpoena state the comply with 158. To establish taxpayers.” Id. chose other the documents. have not did fictitious, fact were in comply with transactions not that the and did silent to remain prove never attempted government the government subpoena, the comply. supported him to force attempted the transactions were end, gov- To this valid documentation. introduced Instead, government defendant, compel the sought to ernment cer- comply as evidence failure produce docu- subpoena, to to a pursuant pros- The never existed. deposit of tificate these transactions. supporting ments re- audit ever asked, HUD “[H]as ecutor re- government’s any evi- ownership, court denied district of ceived evidence the documents of a that if ground that man from quest on the existence dence First the defendant exist, only way deposit from “the $50,000 certificate did not question This being jailed in Dallas?” risk Republic Trust could avoid Fifth impermissible. nonexis- their clearly to assert was contempt would be implicated are protections fact that tence, Amendment’s precisely which gov- complying “the act at trial.” to establish when wishes exis- to the testifies purpose demand “a ernment’s held that The court at 158. Id. authenticity or tence, possession, to avoid Fifth Amendment [is] atU.S. Bouknight, 493 things produced.” Id. dilemma.” 555, 110 case, complying S.Ct. at 905. The act of highly probative helped to —it subpoena perhaps with the in this case possess establish that Sasser did not — admitting supporting the lack of documen deposit. certificate Turning briefly to tation —would have forced Sasser to com factor, the fifth we conclude weighs that it suggesting municate evidence that the cer in neither government’s Sasser’s nor the deposit tificate of did not exist. In other Although favor. the district court had the words, compelled Sasser would have been opportunity prevent testimony, it did against give By himself. did, however, not do so. The court give a complying, Sasser chose to remain silent instruction, curative only gen- but one that pursuant Fifth Amendment. The erally admonished the that Sasser’s government’s questions then impermissibly against silence could not be used him. This attempted to use Sasser’s silence as evi general cure, instruction was too dence him. itself, prosecution’s in revealing error produce Sasser’s failure to evidence. Although we conclude that government violated Sasser’s Fifth Amend factors, however, The third and fourth privilege against self-incrimination, ment weigh in heavily prosecution. favor of the we still must decide whether this error was First, intensity frequency of the beyond harmless a reasonable doubt. See references to produce Sasser’s failure to Chapman California, v. prosecution evidence were minimal. The 824, 828, (1967). 17 L.Ed.2d 705 only concerning elicited information “Chapman beneficiary dictates the of a subpoena occasions, closely on two related prove beyond constitutional error must a time, Further, in in lengthy only a trial. complained reasonable doubt the error of brief mention was made of evidence in the guilty did not to contribute verdict.” prosecution’s Second, closing argument. Burson, 952 F.2d at 1201. We use five importantly, and most in- factors to determine whether a comment troduced other unquestiona- evidence that concerning the defendant’s silence is harm bly guilt. gov- demonstrates Sasser’s beyond less a reasonable doubt: ernment testimony introduced that showed prosecution “1. The use to which the Republic Company that First Trust puts the ... silence. time, dormant at the authority never had to pursue “2. Who elected to the line of deposit, issue certificates of and never is- questioning. any deposit. sued certificates of It also quantum “3. The of other in- demonstrated, through testimony by Sas- guilt. dicative of accountant, ser’s tax that Sasser never re- ported interest from such certificate of intensity frequency “4. The of the deposit on his 1985 or 1986 tax returns. reference. Moreover, failed to disclose availability judge “5. The to trial of comparably application sized asset on an opportunity grant a motion for personal refinance his home filed several give mistrial or to curative instructions.” prior months to the date Sasser claimed to (quoting Id. at 1201 Mas- United States v. deposit. Finally, own the certificate of Cir.1982)). sey, 687 F.2d government showed that filed Sasser never factors, Using these we must decide wheth- liquidator a claim with the State to recover er, doubt, beyond jury a reasonable $50,000 Trust, Republic from First even guilty returned a would have verdict of though he maintained that the funds had regardless prosecutor’s impermissi- company. been embezzled questioning ble about Sasser’s failure to produce exculpatory evidence. evidence, reviewing After this we con- guilt weigh clude that it establishes Sasser’s be- heavily

The first two factors in prosecution yond a reasonable doubt. The evidence favor of Sasser. The elected Republic Company pursue questioning the line and also related to First Trust guilt. used silence to establish his alone demonstrates that the certificate Sasser’s evidence, Further, deposit Although disap- unlike in the Burson did not exist. Sangmeister, prosecution’s actions this United States prove of (9th Cir.1982), case, F.2d 1124 the Ninth Circuit given ample evidence that Sasser precise Sangmeister, issue. In a faced deposit possessed never a certificate jury conspiracy convicted the defendant $50,000, prose- conclude that the we must cocaine, failed to a distribute but reach beyond harmless a cution’s actions were respect to defendant’s al- verdict with doubt. reasonable leged coconspirator. Ninth Circuit “in noted that situations which one VIII. brought to trial or conspirator the con- spirators separately, are tried the convic- conspira that his Sasser contends may conspirator tion stand.” of the other cy vacated due insuf conviction must be recognized Id. 1126-27. The court also at of a cocon- ficient evidence of the existence jury guilty can find a defendant “ spirator. ‘Evidence is considered suffi if un- conspiracy sufficient evidence of if, support cient a criminal conviction coconspirators named and unindicted exists light most favorable to when viewed conspiracy stand conviction government, jury a reasonable could against prosecution a defendant even if the guilty beyond find a reason the defendant alleged charges dismisses co- ” at Ratchford, 942 F.2d able doubt.’ conspirator. The Ninth Cir- Id. (quoting Culpepper, a jury cuit that “the failure of concluded (10th Cir.1987)). properly reach a verdict is more viewed as that—although rests the fact “ contention guilt a non-event” because ‘neither nor conspiracy guilty found him co-conspirator innocence been ha[s] ” charge—the jury could not reach a verdict (quoting established.’ Id. conspiracy regard the with to his count 185, (6th Cir.), Shipp, v. 359 F.2d 189 cert. alleged coconspirators, the Bizzells. Sas 903, 213, denied, 385 87 S.Ct. 17 U.S. that, ser asserts under Romontio Unit (1966)). Thus, 134 the did L.Ed.2d court 618, Cir.1968), States, (10th 619 ed not verdicts because a face inconsistent dismissed, 903, 1384, 91 S.Ct. cert. 402 U.S. is the to “hung jury jury the failure of (1971), inability jury’s 28 L.Ed.2d 644 the coconspirator.” as to reach a verdict the regard reach to the Bizzells a verdict with Id. jury’s the demonstrates that verdict was The District of Columbia Circuit reached jury and that no reasonable inconsistent the in a situation. same conclusion similar a beyond could conclude reasonable doubt Dakins, In 872 F.2d 1061 United States v. conspiracy existed. that a denied, 966, (D.C.Cir.), 493 U.S. 110 cert. 410, 107 (1989), 375 the defen S.Ct. L.Ed.2d Romontio, In the defendant convict possess conspiracy convicted of dant was conspiracy, codefend- ed of and three pros with The intent distribute cocaine. acquitted. that ants We held the were charges the ecution dismissed the conspiracy had to be reversed conviction coconspirators alleged defendant’s after statute, conspiracy 18 because “[t]he Agree jury the could not reach a verdict. language by express U.S.C. its § ing decision in the Ninth Circuit’s with requires the very nature of offense the court concluded that Sangmeister, plan purpose between some concert “[gjiven on Dakins’ co- the lack verdict (footnote persons.” Id. at 619 two or more defendants, stands no verdict with there omitted). The our case distinction between Dakins verdict could be said to which the an obvious one—Sasser’s Romontio be Id. inconsistent.” acquitted. In were not Unit codefendants Howard, 751 F.2d 338 agree reasoning ed States v. of both the We with Cir.1984), denied, of Columbia cert. Ninth Circuit and District (1985), L.Ed.2d 638 The to return a we Circuit. failure S.Ct. coconspirators must be held announced Romontio verdict on Sasser’s that rule way a in no af- alleged coconspira- viewed as nonevent that applies when the conspiracy. conviction for fects Sasser’s acquitted. tors are IX. Biz- acquit the jury did not Because the regard to zells, verdict an inconsistent that district Sasser contends holding in Ro- Our not exist. Sasser does jurisdiction change Sasser’s court lacked the situa- apply not simply does montio appeal notice of had been sentence after his guilty verdict jury returns a a tion where argues once filed his that he filed. Sasser is unable coconspirator, but appeal, as to one district court lacked notice of alleged judgment as to the other to file an amended jurisdiction reach verdict order. The and commitment coconspirators. written order contained asserts sustaining ground for As an additional district court was error that clerical conviction, govern conspiracy pursuant to Fed. allowed to correct holding in Romontio that our argues ment agree. 36. We R.Crim.P. deci Supreme Court’s by the is overruled “[cjlerical mistakes provides Rule 36 Powell, 469 U.S. sion in parts of the orders or other judgments, (1984). 57, 105 83 L.Ed.2d arising in the record and errors record Powell, Supreme stated Court correct- oversight or omission from have inconsistent verdicts truly “where and after such court at time ed reached, can be said most that been ‘[t]he notice, court any, if orders.” as that either verdict shows is that the ... originally in this case judgment written jury did or the conviction acquittal to four was sentenced provided that Sasser conclusions, but speak their real no 1 and with each counts years on not convinced they were does show served these sentences be requirement that ” Powell, 469 guilt.’ the defendant’s After sentence. consecutively to other 64-65, (quoting 105 S.Ct. at U.S. at appeal, district notice of filed his States, U.S. Dunn v. United written subsequently amended the (al (1932)) 189, 190, 76 L.Ed. 356 the sentences provide judgment any other consecutively to Powell). concluded be served Court

terations in sentence. inconsistency may fact that the that “[t]he lenity, coupled with result sentencing hearing transcript of the review, invoke inability to Government’s district unambiguously reveals should inconsistent verdicts suggests that consec- to run sentences intended the court 66, 105 Id., stated, U.S. at 469 not be reviewable.” court utively. The district that “a noted The Court also at 477. S.Ct. each of years on differently, four Said pro afforded already is Two; on each years criminal defendant two One and Counts by Nine, irrationality or error to run through against jury tection Three of Counts sufficiency to run concurrently; but all consecutive review independent imposed imprisonment and order of by the trial to the undertaken of the evidence Judge by West year imposed one 67, 105 S.Ct. at Id. appellate courts.” —of but Gary previous case case] in a [the that this case we conclude 478. Because yet served. has not been a situation where present us with not does verdicts, to correct do we allows the district Rule 36 have inconsistent any time.” When “at deci such a clerical error Powell overrules our address whether judgment amended the district court in Romontio.8 sion 842, 1032, denied, 102 L.Ed.2d 109 same issue have addressed Other circuits Valles-Valencia, 823 v. States (1989); United that Powell indicates 974 have concluded and States Cir.1987). also require (9th See United re co-conspirators acquittals do F.2d 381 ("We 1061, (D.C.Cir.) Dakins, convicted lone 1065 conviction v. versal 872 F.2d Zuniga-Sali rule, States v. United See conspirator. preclude such a interpret if not to [Powell ] Cir.1992) (en banc); nas, Unit (5th denied, it.”), 876 952 F.2d cert. upon 493 to cast doubt at least 593, (1st Bucuvalas, 597 909 F.2d ed States (1989). v. 375 107 L.Ed.2d U.S. Thomas, v. Cir.1990); 900 F.2d Inc., Roofing, 897 Suntar v. United States Cf. Andrews, Cir.1990); v. (4th 850 United States 40 Cir.1990). (10th F.2d banc), Cir.1988) (en cert. (11th filed, appeal after the notice of was clearly error, it sim this case was therefore and ply followed Rule 36 and corrected a cleri majority opinion can not be say read to Further, firmly cal error. is a estab “[i]t otherwise. principle lished and settled of federal crimi agree I also majority’s with the conclu- orally pronounced nal law that an sentence sion giving that the erroneous of this in- judgment controls over a and commitment struction was pointed harmless. As we out order when the two conflict.” United Barbee, concern with a deliberate “[t]he Villano, 1448, 1450(10th States v. 816 F.2d indifference instruction is that it lead Cir.1987)(en banc); see also United States to convict a defendant for his or her (11th v. Khoury, 901 F.2d Cir. negligence instead of for willfulness or in- 1990) (if discrepancy “there is a between tent.” 968 F.2d at 1033. The form of the orally imposed sentence written here, given instruction together with the committal, judgment order of the oral substantial evidence of Sasser’s direct controls”); sentence v. knowledge activity, of his fraudulent con- McAfee, (5th Cir.1987) 832 F.2d vinces me that under Barbee the error was (“The pronouncement terms of an oral harmless. id. at 1035 (overwhelming See clearly provide for a consecutive or concur actual, evidence of knowledge direct ren- rent contrary, sentence control a silent or ders erroneous deliberate indifference in- ambiguous judgment.”); written Johnson harmless). struction Accordingly, I concur. Mabry, Cir.1979) (“the pronounced oral sentence by the sen

tencing judge judgment, constitutes the anything judg inconsistent with the

ment which is included in a commitment Therefore, nullity”).

order is a we con

clude that the district court ordered that sentence this case be served consecutively to his sentence in other PARKER, Petitioner-Appellant, J.B. cases. The district court’s amendment of judgment the written simply the cor error, rection of a clerical as allowed “at SINGLETARY, Harry Secretary, K. time” Rule 36. Department Corrections, Florida AFFIRMED. Respondent-Appellee. SEYMOUR, Judge, concurring. Circuit No. 90-3901. join opinion I in this case but I write Appeals, United States Court of separately emphasize important Eleventh Circuit.

point. notes, majority govern- As the Oct. presented ment has admitted that it “no guilt might evidence of come under ” the rubric of ‘conscious avoidance.’ Brief 24; Appellee maj. op. see at 1552. unequivocally

This court has held that the

giving of a indifference deliberate instruc- here, when,

tion is error as there is no showing that the defendant delib-

erately knowledge. acted to avoid actual Barbee,

See United 968 F.2d (10th Cir.1992); Francisco-Lopez, de (10th Cir.1991);

1408-12 United States v. Arbizo,

Manriquez 248-49

(10th Cir.1987). Giving the instruction

Case Details

Case Name: United States v. Hiram Stanley Sasser, II

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 3, 1992

Citation: 974 F.2d 1544

Docket Number: 91-6205, 91-6263, 91-6340 and 91-6359

Court Abbreviation: 10th Cir.