United States v. Sammy G. Daily and Frederik A. Figge

HOLLOWAY, Judge, Before Chief EBEL, *, Judge, Circuit and SEAY Chief Judge. District HOLLOWAY, Judge. Chief Defendants-appellants Sammy Daily and Frederik were convicted on conspiring, in violation of 18 count each offenses under 18 U.S.C. U.S.C. make several claims of error. to commit and 1001 and 1343. §§ In view of appeals, disposition our ultimate of these appropriate only necessary deem it we address (1) eight here: whether contentions juris- subject trial court lacked matter impose judgment diction to Figge; (2) whether the indictment insuffi- issue, ciently charged the offense at or was improperly instructions; by the trial court’s broadened (3) the trial court whether evidentiary failing erred in to hold an hear- warrant; validity ing as to the of a search (4) government improperly whether provide Daily failed to culpatory with ex- (5) evidence; whether the trial instructing erred in as to court materiality under 18 U.S.C. §§ 1343; (6) whether there was a fatal vari- proof ance between the indictment as to the spiracies, multiple existence of con- trial erred and whether the court give multiple-con- failing express instruction; (7) spiracy whether the trial failing erred in to instruct the court respect to character evi- with substantial defendants; dence addressed both (8) whether there was sufficient evidence to support conspiracy the defendants’ convic- (7), prejudicial tions. Due to error issue for a we must reverse and remand trial. new I. BACKGROUND A. Facts underlying The facts appeals these are Jeans, complicated. briefly Atty., Dept, summarize Sheryle L. U.S. them here, Justice, particular great- and address City, (Benjamin Mo. Kan., L. facts Kansas disposing Daily er detail in claims of Atty., City, Figge’s D. Burgess, U.S. Kansas Mo., Dittoe, Atty., error. and Michael J. Justice, briefs), Dept, of with her on the Essentially, government alleges that plaintiff-appellee. (as others)1 well as con- Dickson, spired to defraud the Pope, M. Coronado Federal Steven Dickson & (CFSL) P.A., Kan., Savings and Loan Topeka, defendants-appel- the Indian (ISSB), Springs Bank State both financial lants. * Seay, Judge, Figge, Honorable Frank H. Chief 1. In addition to three other persons formally charged States District Court for the Eastern District of were Oklahoma, sitting by designation. under U.S.C. § 371 in connection with the Kansas, institutions in by recruiting limited partnerships; that there were adequate re- partners for a number of land investment serves set aside to any offset negative cash partnerships, by having those flows; limited and that investors would not be partners apply for loans from ISSB or required to any make further contributions. CFSL. ISSB and CFSL loaned the money According government, to the none of with the understanding would promises these given truthfully. equal receive funds to double the loan ISSB and CFSL were induced to make through purchases amounts of of certificates loans assurances that investors deposit (CDs). The loan proceeds went qualified However, borrow. ac- into partnership accounts, and allegedly cording government, to the loan applica- were then personal used for the benefit of tions contained false information. In some co-conspirators. instances, investors by were told Daily or According government, to the plan this (or Figge alleged an co-conspirator, Frank- required participation the of CD owners Winkler) lin up beef their applications by (generally unions), credit partner- limited adding false cases, statements. In other ship investors, and financial institutions Daily or Figge or completed altered the (ISSB CFSL). per- Credit were unions applications they such that evidenced mate- suaded purchase CDs from ISSB and rial falsehoods without the investors’ through CFSL First (FUF), United Fund a knowledge. In regard, Daily and money brokerage firm operated owned and Figge are said to have routinely asked in- by Kenda, Mario an co-conspirator. vestors to fill out and deliver them draft In were “special what dubbed deals” or applications loan signed, copies. blank deals,” “Joe Davis FUF account executives government The alleges that would much of inform credit unions that financial money gained from this scheme was institutions like ISSB and ing ally re- CFSL were pay- tained Daily and Figge for al use and benefit. For the person- their higher rate of interest than was actu- part, most says the case. When a credit union would government, payments no notify were FUF that a ever financial institution was loans, made on these and in part- fact paying expected not rate, interest FUF nerships had the effect solving would defen- send out a apolo- standard letter dants’ problems cash flow gy, properties and would up make the difference to without divesting them turn, of'ownership the credit union. In FUF would col- properties. government The alleges lect the interest-rate differential from third properties were not parties transferred to the lim- were they who told that pay- were ited partnership promised, as ing a fee for and there- brokerage FUF’s services. fore, the partnerships had no assets. were actively in involved Moreover, the properties fully were the recruitment of- partner limited inves- pledged as collateral on obligation another tors. In connection with their recruitment and were eventually upon. foreclosed activities, however, Daily alleg- edly made a number of false statements. For part, Daily their and Figge contend participate order to in the real estate they facilitating were legitimate land venture, investors had to apply for loans investment deals. They maintain that the from ISSB or deposit CFSL and pro- plan fell apart because the Federal Deposit ceeds one of the limited partnership ac- Corporation Insurance (FDIC) and the Fed- counts. To their participation, induce eral Savings and Deposit Loan Insurance among edly things, Daily other and Figge alleg- Corporation (FSLIC) gave unexpectedly told investors the applications special scrutiny to the loans because for the loans were a would not be that all debts formality mere and were associated with brokered deposits, scrutinized the bank and and many because of the loans were “out not need be listed on the (i.e., of territory” many of the partners applications; that the partnerships would were Hawaii). from Subsequently, make all the loan payments and that inves- claim that ISSB called all the loans even tors have personal would no liability; that though payments on the loans were cur- condominiums, which could sold short rent. They assert that they pay refused order, would be transferred into one of the on the loans because previous agree- financial scheme discussed in text: Mario Ren- Winklers the country fled subject and are the da, Winkler, R., Leslie and Franklin Winkler. I request by government. extradition Les- (Count 30). Doc. pled guilty Renda lie presently Winkler believed be deceased. two substantive counts wire fraud. The Appellee See Brief of at 2. ISSB, allegedly States. It was thus in- and that disinfor- United ments with “[t]he government cumbent on the in the instant and the bank’s ac- mation from tions was severe and ruined FDIC prove ownership of Daily’s real case to “United States property question firm, affecting Figge’s] a State ces- his abil- estate [or] [and jurisdiction.” Supplementary sion of Pro ity perform.” Appellants Brief of at 4-5 Defendants-Appellants Brief of at 7. (emphasis original). Se however, argument, wholly with- This History B. Procedural Precisely opposite out merit. is true: and three others were in- Daily, Figge, government “The federal has territorial jury on a 34-count indict- by grand dicted jurisdiction over certain conduct which oc- mostly pertained counts ment. These wire fraud fifty curs outside of the states.” 2 W. (18 1343). Count 30 U.S.C. § Israel, LaFave & J. Criminal Procedure conspiring, charged Daily and 16.2, (1984). Accordingly, at 343 we con- to commit violation of 18 U.S.C. § government clude that had no obli- fraud, and to submit false statements wire gation jurisdictional showing to make a jurisdiction of a as to matters within (i.e., by Daily asserted States criminal district court. 1001). (18 agency Neither federal Daily U.S.C. § cession), ownership or State and the before the charged with a sub- Figge was nor charges properly statement violation under stantive false However, Daily separately 1001. § Sufficiency B. the violating Indictment charged in another count 2, making and false state- U.S.C. ments §§ Daily Figge arguments and make several federally-insured to influence a challenge the indictment as insuffi- that cient. bank. Generally, they argue first and, jury a 30 fails to an offense was tried before a over Count state The case second, improperly spanning approximately two that the district court period months. The against Daily guilty through verdicts broadened the indictment the use returned only reject the Figge, and but as to instructions. We both con- (Count 30). Daily was tentions. conspiracy count and, imprisonment years’ sentenced to five years’ impris- to three Figge was sentenced 1. Statement of the Offense $10,- pay a onment. Both were ordered Daily Figge and contend that Count assessment to the Crime fine and $50 charged conspiracy, which them with fails In 89-1626 and Victims Fund. Numbers offense, allege the the elements of and 89-1627, Daily Figge respectively, and allege They say thus fails to there is a variance between the the indictment and the an offense. timely appealed their convictions and sen- wording tences.2 wording the of 18 (one underlying U.S.C. crimes). § II. DISCUSSION A. Jurisdiction necessary It is not wording brief, pro supplementary Daily parroted In of a statute be We sufficient if in an se indictment. recently noted Figge and first contend that their convic- that an indictment is (1) government tions cannot stand because the it “contains the elements of they apprises committed an the offense and the failed to establish defendant of meet,” jurisdiction charges (2) offense within the “territorial he must and “the protected against defendant be the United States.” U.S.C. would dou § jeopardy ble regard, they geographi- by judgment assert that the on the indict quoted phrase cal in the ment.” area referred to United States v. Mobile Materi als, Inc., geographical more limited than the commonly thought area constituting opinion supplemented reh’g, of as granted pending appeal). correctly In our Number this court The district court pending appeal jurisdic- both defendants release on bail denied the 2255 motion for want of § tion, day following argument citing Daily Figge’spending appeals before us. In its denying Daily Figge’s suggestion Order motion for the merits. There is no in the record bail, Daily attempted challenge release on court had also de- district ever Figge’s appeal. nied motion for relief under the district court’s And, 2255 decision on § 28 U.S.C. 2255. The 2255 motion—filed in view of our reversal in our Number bail, Figge’s sought essentially any 89-3333 on the matter is moot in event counsel— (i.e., the same relief as the bail motion release and is dismissed. — (1989), U.S. —, elements, then, Five present must be an L.Ed.2d charging indictment a conspiracy see Rus under 749, 763-64, sell 371: agree- U.S.C. there must 1038, 1046-47, ment; 8 (1962) purpose 82 S.Ct. (citations omitted). agreement of that must law; be to break the there must be an act; overt purpose of the act must be specific alleges, events it Given the conspiracy; further and the defen- certainly protects Daily indictment Figge and dant must have entered the conspiracy will- tried, being respects from other fully. a cursory reading Even of Count 30 placed jeapordy, twice for of- the same appear establishes that all five elements Accordingly, fense. jeopardy the double the indictment. proceed factor is not a concern here. We to determine whether the indictment ade- As for the elements of underly quately charges conspiracy offense ing offense, substantive that under 18 upon were convict- U.S.C. contend Specifically, ed. wheth- must determine that the indictment failed to inform them er the indictment alleges the elements of prosecuted that ing were being for mak charged suffi- offense and otherwise documents, writings false and that provide cient to defendants with notice. it further failed to inform them that being prosecuted making for false knowingly. statements Count 30 disagree. As elements alleges con offense, initially we note this is an spired: indictment to violate To knowingly willfully conceal and Thus, 1001 and 1343. the indictment §§ up cover tricks, material facts must contain the essential spiracy. of con elements devices, schemes and and fraudulent and to make false necessary It is also that the in represen- statements and dictment contain “the essential elements tations, in within jurisdiction matters the upon underlying which the rests.” offense of Deposit the Federal Corpo- Insurance States, 1136, Nelson v. United 406 F.2d Savings ration and Federal and Loan In- (10th Cir.1969). Yet, 1137 we noted have Corporation, agencies surance United of the prosecution in a conspiracy, that the States, 18, violation of Title underlying elements of the need offense Code, United States Section 1001.... degree be charged not with the same of specificity ordinarily required as would R., 1, I hand, Doc. at 31. On the other prosecution underlying based on the 1001 reads follows: offense. Id. Whoever, in any jur- matter within the any department agency isdiction or firstWe examine the of con elements the ly knowingly United States and willful- spiracy. 371, Under 18 il U.S.C. § “[a]n falsifies, up by conceals or any covers legal conspiracy two or more agreement is ‘an between trick, scheme, fact, or device a material persons to one more commit or any false, or makes fictitious or fraudu- acts, complete unlawful is one or when lent representations, statements or or conspirators more of the knowingly commit any writing makes or uses or doc- false object an act furtherance ” knowing ument any false, the same to contain Parnell, agreement.’ United States v. or state- fictitious fraudulent 1374, 1379(10th Cir.1978) F.2d (quoting 581 entry, ment or than shall be not fined more Thomas, 422, v. United States 468 F.2d $10,000 imprisoned or not more Cir.1972), (10th denied, 424 410 rt. U.S. ce years, than five or both. 935, 1389, (1973)), 93 S.Ct. 35 L.Ed.2d 599 added). (emphasis 18 1001 U.S.C. denied, 1076, 852, cert. 439 U.S. 99 S.Ct. 59 (1979); 44 L.Ed.2d United States v. Gonza Thus, the indictment does not contain the 915, lez, (10th 1986). 797 F.2d 916 Cir. Of part terms of the last of the statute which course, the defendant must have entered held, writings. deals with We have how- the conspiracy willfully. into ever, See United 1001 are as elements Jacobson, 863, (10th v. F.2d States 578 867 (1) the follows: defendant made a state- Cir.), denied, 932, cert. 439 ment; false, 99 S.Ct. (2) the statement was ficti- 324, (1978); 58 L.Ed.2d 327 tious, United States knew; or fraudulent as defendant Sherman, 292, (10th Cir.), v. 296 (3) knowingly made statement was 439 U.S. 58 willfully; (4) the statement was within the L.Ed.2d 259 v. see also United (5) jurisdiction agency; of a federal Hines, (10th 1982). F.2d 696 733 Cir. statement was material. United States v.

1000 (10th put contain sufficient detail defen- must Irwin, F.2d 654 ce notice the nature of 102 dants on S.Ct. rt. Russell, them. against 369 charges this (1982). is clear from It 72 L.Ed.2d 133 In this 82 at 1045-49. U.S. at have not distin that we listing elements connection, we observed: have statements “[S]ome false oral guished between char- indication of nature or Consequently, substantial false statements. written defraud, any artifice dis acter of scheme or upon that Figge’s reliance money property means of or to obtain misplaced.3 is tinction prom- pretenses, representations or false Further, reject Daily Figge’s con- we requisite. it is not sufficient ises is And charge not does that the indictment tention statutory merely plead the regard this falsity of the state- that knew of the Curtis, v. United States language.” True, element of as to this ments. (10th Cir.1974) (citations omit- F.2d ted). offense, poorly the indictment is allege not itself 30 does crafted. Count Figge knew their state- pro hold that the indictment 30, however, does false. Count have ments were which should vides sufficient detail information from expressly incorporate notice of nature put Daily lan- Here, which do contain 1 and charges against Counts them.5 of the knew of the falsi- alleging guage merely repeat “does more than indictment rele- made. As ty statute; certain statements it describes words here, “In or Materials, 14 states: about particular conspiracy.” Mobile vant Count “ A. November, FREDERICK FIGGE Inc., magic F.2d at ‘There no DAILY sub- G. SAMMY allege guilty authorized to the words used ... [sic] personal finan- demanded, however, mit and fraudulent a false knowledge.’ What is application to CFSL cial and loan forthright attempt statement competent behalf, Partners IV his for First United his notify the accused of the extent of Nelson, knowing at time the state- both culpability.” F.2d at States, liabilities in- significant ment omitted Davis v. United (quoting R., I 1965)). Doc. curred FIGGE ISSB.” F.2d Cir. When added). ¶14, 3(d)) (emphasis (Count technical, at 23 con practical, look rather than Dunn, addition, alleges siderations, Count United States and other applications (10th Cir.1988); loan Robbins caused ISSB, “while be submitted documents to Cir. by have been obtained knowing 1973), the same to that must the indict we conclude rep- pretenses, way and fraudulent of false ment sufficient. is Id. 12 promises.” and resentations ¶ 14). Thus, does (Count 1, the indictment Broadening 2. the Indictment falsity.4 allege knowledge of Figge argue first here by the the indictment was broadened all the indictment fact that contains The court’s Instruction number district conspiracy the elements of of the essential offense, language it tracks the 1001. because § elements all of the essential discussed, Given our construction offenses, how- underlying substantive the above, reject argument. supra. ever, appearance if the enough, may not be Next, Figge Daily and contend note 3. give Daily and does not elements of those by jury that the indictment was broadened charges the Figge adequate notice the noted, Instruction number which describes As an indictment against them. fact, argue given indict- generally do not we have a "unified” 3.In 4. regard example, insufficient with to 1343. to For we have ment was construction writings sufficiently alleges expressly suggested the and other We note that indictment distinguishable conspiracy crime. not under the to commit that falsehoods are wording United of the statute as amended. Fitzgibbon, long. pages States Cir.1980). 5. The indictment Count is 49 materiality parts expressly including We have also treated the of other counts it, incorporated up pages. element of all offenses under essential into takes of the though wording great the § 1001 even under of detail in Count 30 There is deal matter) materiality requirement ap (taking incorporated not statute the does into account the writings. pear apply given to false be in a Bill of the sort would Gonzales States, 120-21 is F.2d Such factual detail relevant Particulars. question. 81 S.Ct. rt. 365 U.S. the notice ce (1961). L.Ed.2d 190 99, 102, conspiracy. (1942) crime of argument Their S.Ct. 87 L.Ed. ap- (quoting pears to be that because indictment is Frohwerk v. United 249, 252, it confusing, convoluted conspiracy did charge (1919)). not 63 L.Ed. 561 all, by instructing Although Daily have argued not jury clearly on conspiracy, duplicitous (i.e., the trial that Count 30 is indicts court it broadened the indictment. them more than one crime in one count), analysis the Braverman ap- still Curtis, supra, Our decision is instruc- plies. Daily charged were simply point. tive on this that the It was there violating with stat- gained money defendant had by ways. ute issue is one or more The sole crime at fraudulently claiming operate a legit- conspiracy. computer dating imate service. We or- Second, dered dismissal of the it is generally accepted proce- indictment. We held specific indictment was not dure use “and” in an enough indictment where a to ensure that statute the defendant was uses the word convicted “or.” This assures illegal same that defendants not scheme on which the are convicted on infor- grand jury had mation grand intended to indict him. not considered jury: We “by comminglement said that the curious Frequently a specify statute will vari- of references to the allega- scheme with ways in particular ous which a may crime tions of carry various means utilized it enough allege committed. It is out, the is confusing indictment as well as ways of these negativing without vague.” 506 F.2d at We added that pleading may allege others. Or the com- “[¡Instructions cannot save a bad indict- mission the if offense all the acts ment, although in some cases mentioned it uses conjunctive prejudice.” ameliorate the Id. “and” where the disjunc- statute uses the tive “or.” But if the indictment or infor- acknowledge We the indictment alleges mation the several acts lengthy here is and somewhat confusing. disjunctive it fails to inform the defen- Taking into account other sections of the dant which of the acts he is expressly referenced, indictment Count 30 committed, having is it insufficient. included, pages long. Many is 42 facts are 1 Wright, the relevance of which far C. Federal from clear. Practice & Proce Nevertheless, (1982) dure at 372-74 we believe that the indict- [hereinafter sufficiently allege Federal conspiracy. ment does Unlike Practice have had occasion ]. Curtis, procedure. gives endorse this the indictment here See United Gunter, specific States v. information as to the nature of the the (10th Cir.1976), Moreover, alleged. false statements (1977). paragraphs first few Counts The logic help general same holds in a explain 30 conspiracy alleged. then, nature of case like this one conjunctive where the only Instruction number used not ways violating describe particular did not broaden the two indictment. statute, but also to describe two underlying also contend that substantive offenses in a conspiracy district court the use of “or” in the where “and” had broadened indictment charge. We that therefore hold the use of instructions, in “or” instructions did not broad been used the indict- en the indictment. They argue ment. that because the indict- entirely conjunc- ment was written in the Evidentiary Hearing C. tive, and request because their for bill of particulars denied, they was should have Daily argue that an Figge next guilty only they been found if were found evidentiary hearing should have been held guilty of conspiring to violate both 1001 to certain evidence §§ determine whether 1343. suppressed. should have been agree. We dis merit, argument This is without for at First, Daily least two reasons. and Figge Daily Figge that the search contend conspiracy, making were convicted of not warrant which enabled federal officials to statements false or wire fraud. “The alle City, search FUF’s offices Garden New gation in single York, 54, F, count a conspiracy R., to II Doc. Ex. was invalid. commit several crimes not duplicitous, They assert the warrant was based crime, for ‘The is the and that is attorney’s perjured an FDIC affidavit. ” one, objects.’ however Thus, through diverse its Brav allegedly the verdict was obtained States, erman v. 317 U.S. testimony United 63 perjured the use of 1002 which, like rights personal rights are v. ment Bag States United be reversed. should may not rights, 3375, 678-80, other constitutional 667, 105 S.Ct. some 473 U.S. ley, v. Alderman vicariously asserted.” (1985); Mooney be v. 481 L.Ed.2d 87 174, 165, States, S.Ct. 340, U.S. 89 394 103, 79 United 55 S.Ct.

Holohan, U.S. 294 (1968); see United 961, 967, 22 176 L.Ed.2d (1935).6 791 L.Ed. 727, 731, 100 447 U.S. Payner, v. States put for- originally was argument This (1980); 468 65 L.Ed.2d S.Ct. Renda, R., II Doc. by co-defendant ward 128, 133-34, 99 Illinois, 439 v. Rakas exactly the record from it is unclear 421, 425-26, 387 58 L.Ed.2d S.Ct. motion. joined the Figge Daily and when DeForte, 392 U.S. v. Mancusi renewed trial, the motion was During the (1968). 20 L.Ed.2d 116; R., XVII R. defendants, Doc. V by all show- the burden of Figge bear Daily and Doc. denied. was The motion 3-30. rights fourth amendment ing have their appeal). Post-convic- (not designated on Rakas, at violated. been “28 filed a U.S.C. tion, Figge Daily and 1; 424 n. United States n. va- their sentences to have Motion” (10th Skowronski, regard- evidence of new basis on the cated Hansen, 652 Cir.1987); R., Doc. Doc. VII ing the search. Cir.1981). They have F.2d failed motion That (not appeal). designated carry burden. found district court denied was that because standing to Figge lacked Daily and Daily or that either appear not It does R., Doc. VII 325. search. object to the share- officers, or employees, Figge Figge fact, Daily and In of FUF. holders whether not determine need themselves to distance attempted have in order perjury attorney committed FDIC to than instance.7 in more FUF from the war- warrant, or whether obtain the Daily we hold Consequently, Daily and improper. was otherwise rant interests privacy insufficient Figge had search- raising their from Figge are barred illegal allegedly search object to any event because objection related lacked not entitled accordingly They were FUF.8 to seek privacy expectation a reasonable hearing purposes evidentiary an Amend- “Fourth FUF. offices in the they had was that witnesses ... of the 39 mation 104 in their Daily cite Document corresponded Figge, had never appear heard brief, never which does not opening Figge, and had Figge, had never talked with argument. Document to this related Figge, same testi- knowledge and the alleg- no suppress due to motion to with a deals edly employees Daily, except testified FUF re fied located Ha- illegal seizure of materials two on about had or seen met subpoena. V resulting a "forthwith" from waii Further, offices.”). the FUF occasions R., have not Because Doc. 104. authority argument with or no offer here as to any seizure, error contention of prosecuted would privacy regard interests which to their the mat- not address we do Hawaii right object search. FUF their establish in Document raised ters by Daily and cited the cases 8.We have reviewed brief states: defendants' 7. The Support of 28 Figge in their Memorandum with the no connection had Motion, R., express Doc. VII U.S.C. conspiracy.... FUF brief, opening incorporated their ly into ques- officials Union the 29 Credit ... All of standing object to their said to establish are any denied dealt] whom FUF [with tioned However, exception with one the FUF search. knowledge of or association Figge, help Daily and Eherhart not which does Figge. 1n. v. United Cir.1958), prece do not offer useful these cases responding eight executives account The ... answering question at issue here. the for dent Daily had seen questions stated to States, U.S. 394 generally v. United See Kaufman FUF; Figge, or never seen had at occasion (1969); 1068, Hayes 217, 227 22 L.Ed.2d S.Ct. 89 telephone or conversation a ever had had (10th States, 419 F.2d 1364 v. United with, with, or told associated or business done 1856, 941, denied, 26 S.Ct. U.S. 90 398 cert. "special” "Joe Figge or Davis” Daily or States, (1970); 317 v. United 276 Gaitan L.Ed.2d fact, tes- executives account several deals. Cir.1963); v. United Williams 494 anyone outside of never told tified (9th Cir.1962); United 366 307 F.2d Davis "special deal" or "Joe the FUF about Cir.1961); (2d Barillas, F.2d 743 291 v. States deal", conclusively confirming that the con- (E.D.Va. White, F.Supp. 644 v. United States 1964), loop First closed spiracy was an ... in-house (4th Cir.), cert. aff'd, 342 F.2d 379 Conspiracy. Fund United 15 L.Ed.2d U.S. 382 (1965). origi- (emphasis in Appellants 27-28 at of Brief nal; ("The omitted); id. at 62 sum- see citations of suppressing the evidence. on the materiality issue of under §§ Leary, 846 F.2d Specifically, 595-96 and 1343. Daily to § Cir.1988); Skowronski, Figge 827 F.2d at 1417- contend that the trial court erred Wright, 826 F.2d in not submitting materiality United States v. the of issue to (10th Cir.1987); jury. United States Han- the The trial expressly court in- sen, (10th Cir.1981). jury materiality structed the was an by issue for determination the court and the D. to Provide that material. As facts at issue Failure Count 30 were Daily Figge for Exculpatory Evidence again object to the trial court’s argue Daily Figge that certain evi- failure materiality to submit issue of to provided by the dence was not to them Here, however, jury. the trial court government. argument We find this to be allegedly altogether silent sub- a government wrote letter baseless. The ject of materiality under for Wyrsch, attorney to James co-defen- Figge recognize contend that we should Dickson, Renda, dant Mario and to Steven (albeit materiality is an essential im- attorney Figge, which reads: plicit) element of the offense of wire fraud. indicated, previously “As October you provide is the date scheduled to 1. Section 1001 matters in with the ... certain connection agreed, being provided case. As one set is preliminary matter, As a Wyrsch, Mr. to Mr. Dickson is government asserts that from Govern- copies make his clients.” object failed to trial court’s instruc added). (emphasis ment Ex. As tions as to materiality under 1001 and receipt by aby signed evidenced Russo, Ronald complain therefore cannot gener now. See Renda, attorney for the re- another Fed.R.Crim.P. ally (providing that “[n]o quested evidence was received on October party may assign any portion as error Ex. at 14. 1987. Government charge or omission therefrom unless challenged doc- have not these party objects thereto stating ... dis Thus, only uments their briefs. evi- tinctly party the matter which that ob the materials dence before us indicates that sought jects grounds objection”). and the by Daily were available disagree. inartfully, Daily However 6, 1987, some thir- to them since October sufficiently did object days trial. teen before materiality instructions.9 The trial court instructed the on the Materiality E. Instructions: 18 U.S.C. question materiality under 1001 as 1001 & §§ ms follows: Figge next contend that the making The aof false statement use or properly trial court did not instruct the a report false is not an offense unless regard, agency In this their counsel remarked: made in order to influence reliance or agency agency The—we do not believe that action instructions or or omission failure general adequately deal with 18 U.S.C. act. case, 1001. The Courts have particular defined material disagree And in this regard false statement in to 18 U.S.C. 1001 to with the statement of the law that the state- agency, be statements calculated to induce ments made the defendants ato bank were reliance or action.... agency statements intended to influence deci- The test for false statement also whether sions. ... false statement calculated to induce XXX5 R. 5753-54. agency or materiality action reliance of the U.S. In We have defined as a natural tend words, influence, ency other it is that could affect or capability or the of influenc governmental ing, influence the exercise making func- decision the tribunal way, tions or required does it—stated another does it determination to made. See United. tendency Irwin, (10th Cir.), have natural influence is it States v. 654 F.2d at influencing capable a decision.... Government, course, Gonzales, ... The bears bur- proving capa- (citing States, den that of the statements were Weinstock v. United 231 F.2d 699 influencing agency (D.C.Cir.1956)). then, ble of objection, decisions. There- may Counsel’s fore, up prove reasonably it is to the challenge Government to that be construed aas any alleged materiality statements made defendants trial court's determination were, one, false; law, number issue as a matter of with the attendant material; three, two, number knowingly government's number made proof reduction of the burden of four, willfully; and number Accordingly, on this issue. we that conclude

1004 Irwin, 654 F.2d at wrong. ality 677 n. 8. was fact. a “material” falsity relates the The issue however, is not materiality, your decision but is you for submitted Supreme Upon consideration court. by the determined a matter to v. United Kungys in decision Court’s facts, that the instructed You are 1537, 99 759, 108 S.Ct. States, 485 U.S. of the Indictment as 30 charged in Count mate- (1988), we conclude 839 L.Ed.2d of 18 in violation having falsified been of law for question 1001is riality under § 1001, be material. would U.S.C. § trial court’s and, accordingly, the the court 146, No. R., at Instruction VI Doc. materiality issue un- to submit refusal cases, an instruction such prior our Under would The not error. was 1001 to der § Irwin, error. See surely be deemed holdings to prior our disavows court now the 8; v. n. States at 677 United F.2d 654 that our contrary.11 We are mindful Cir.), (10th 556, 571 F.2d Radetsky, 535 of this by prior decisions bound panel is 68, 820, 97 50 denied, S.Ct. 429 U.S. cert. Berryhill, see, v. court, e.g., United States v. (1976); United Gonzales 81 L.Ed.2d Cir.1989), (10th but 275, 277-78 F.2d 880 Cir.), 118, (10th cert. 122 States, F.2d 286 judges active all are authorized we 1028, 878, 6 denied, 81 S.Ct. U.S. 365 endors- court to state this court of es materiality consistently (1961). We have 190 L.Ed.2d cases on the prior overruling of our essential element materiality is an held that light 1001 under issue § and, like other under 1001 of an offense essential mitted on § Kungys. guidance Supreme Court’s elements, ordinarily be sub must for determi instructions proper the con- the Court examined Kungys, Radetsky, 535 F.2d jury. See by the nation at 8 U.S.C. materiality under cept of Valdez, v. States United part accord for the 1451(a), provides § denaturalization 1979). 725, (9th Cir. 729 F.2d citizen- 594 whose of citizens “illegally and certificates ship orders appropri sure, to the view as our To be by concealment procured or were procured materiality under ate decision-maker issues Among the fact.” of a material that of most in accord with is not 1001 § Kungys Court concern particular con have courts that appellate federal materiality question un- And, was whether in the context question.10 sidered of held fact. 485 1451(a) one of law statutes, was n. der we have statement other false & n. 4. 4, at 1544 108 S.Ct. 766 & of law U.S. materiality question is a issue, looked to the Court deciding this Vap, In the v. States United the court. See false statement other (18 under 1988) practice (10th 1249, Cir. 1253-54 F.2d 852 misrepresentations to proscribing grand statutes 1623, a 484 F.2d perjury before U.S.C. § material- concluded officials and Masters, public ity v. jury); States United the court. of law Cir.1973) (18 question U.S.C. (10th 1251, 1254 v. dictum Sinclair relied on statute); Court The United 1621, perjury general 268, 263, States, 49 S.Ct. 279 U.S. 571, United Strand, 573-74 617 F.2d v. States (1929), the Court had where 73 L.Ed. 692 7206(1),falsification Cir.) (26 (10th U.S.C. materiality question 841, “the denied, observed returns), 449 U.S. cert. of tax sworn, element for the falsely where (1980). of what is in the crime How 120, L.Ed.2d 48 66 101 S.Ct. is one perjury, per now, not been ever, have until 298, at 273. 49 S.Ct. U.S. court.” 279 1001 materi- position our suaded 367, (7th Bullock, F.2d v. 857 the mate- States objected to adequately 1287, Adler, Cir.1988); 623 F.2d States v. United assert their riality at trial and instructions Cir.1980); (8th Lopez, v. 728 United 1292 States here. claim of error denied, Cir.), 1359, (11th cert. n. 4 469 F.2d 1362 States, 112, (1984). 828, See, 231 F.2d L.Ed.2d 56 e.g., v. United S.Ct. 83 Weinstock U.S. 105 699, v. Ber (D.C.Cir.1956); United States 703 Cir.1967); 915, (2d nard, United 916 F.2d 384 materiality principal § 1001 cases on the 11. Our 68, Cir.), (3d Greber, cert. 73 760 F.2d 988, v. States Irwin, F.2d v. 654 671 issue are: United denied, 88 L.Ed.2d 106 S.Ct. 474 U.S. denied, (10th 455 U.S. 102 cert. Marsh, Storage v. (1985); Co. Van & Nilson 348 (1982); United States S.Ct. 72 denied, (4th Cir.), cert. 474 367 F.2d 755 (10th Cir.), cert. Radetsky, de F.2d 556 v. 535 (1985); 88 L.Ed.2d S.Ct. U.S. nied, L.Ed.2d 97 S.Ct. 429 U.S. Hausmann, 616- United States (1976); v. United and Gonzales Abadi, Cir.1983); (5th United States Cir.), cert. Cir.), (1961). 1028, L.Ed.2d 190 78 L.Ed.2d

1005 Further, recognizing it as the promi- “most trial judge properly instructed the jury that nent” of the false statutes, statement alleged facts, the the charged in Count 30 as Court in Kungys specifically having focused on been falsified in 1001, violation of § practice the der regard with materiality un- would be material.14 Id. § at 108 S.Ct. at argument 1545-46. In The connection, advanced the Court ob- served: Figge to the contrary persuasive. is not They contend that the holding As the our Sixth cases Circuit has said in a case providing involving decision-making 18 on the U.S.C. 1001: § materiality issue is dictated by the Su “[Although the materiality of a state preme process Court’s due jurisprudence ment upon rests a factual evidentiary and, in particular, the Court’s decision in In showing, the ultimate finding of mate re Winship, 358, 397 U.S. 90 1068, S.Ct. riality turns on an interpretation of (1970). L.Ed.2d 368 In Winskip, the Court substantive law. it Since is the court’s held that process the due clause “protects responsibility to interpret the substan against accused except conviction upon law, tive we believe proper [it proof beyond a reasonable doubt every the issue of materiality treat] as a le fact necessary to constitute the crime with gal question.” United v. States Aba which he is charged.” 364, 397 U.S. at di, 706 F.2d denied, cert. at S.Ct. 1072. Under Winskip and its U.S. 821 [104 L.Ed.2d 95] progeny, an accused is entitled to (1983). determination of each essential factual ele U.S. at 108 S.Ct. at 1547. The ment of offense; action Court in Kungys thus concluded that mate- trial court which amounts to a directed riality 1451(a) under question § of verdict on an such element of the offense is law. unconstitutional. E.g., United States v. Focusing on analysis in Kungys, we Bass, (5th Cir.1986). 1284-85 feel constrained to reach the same result as to materiality under 1001. The § Court Because we have held that materiality is looked to the Sixth Circuit’s decision an essential element 1001 offense, § Abadi as exemplifying the decision-making reason that Winskip man practice regard to materiality under dates that we adhere to prior our cases Further, 1001.12 guided § by the language holding that materiality is an issue for the of Sinclair, accepted Court jury. the Abadi See United States v. Taylor, 693 practice as indicative of general deci- F.Supp. 828, 846-47 (N.D.Cal.1988). We sion-making practice under false First, disagree. statement in United States v. Larra statutes and adopted it for purposes naga, (10th F.2d 489 Cir.1986), we re 1451(a). Thus, while the Court's jected state- argument similar in the context of ment in Kungys, quoted above, and a perjury its prosecution under 18 U.S.C. analysis there are dicta precise as to the 1623(a),holding that the trial court’s de issue under us, 1001 before feel con- termination of materiality (an essential ele adopt strained to the principle that materi- ment of offense) did not result in ality under 18 U.S.C. question 1001 is a “infringement of right to trial by jury.” of law for the court to determine with an 787 F.2d see Sands Cunning instruction to the jury on the court’s ham, con- 617 F.Supp. 1551, (D.N.H. clusion as to materiality in the 1985) being case (holding in corpus habeas action that Here, tried.13 we are satisfied that state court’s ruling on materiality as a 12. The Sixth Circuit in expressly Abadi agree noted 14.We with the view legal that such a disagreement among the circuits as to representations determination whether or state materiality whether under question § 1001 is a ments are material or not is one as to which and, of law or particular, fact is, noted the least, theory there "in no continuum of position prior of our cases on this issue. 706 assurance dubiosity as to the establishment F.2d at 180. proposition of a of law varying similar to the degrees certainty uncertainty propositions ascribed to of fact.” United 13. See Marvel v. United 548 F.2d Armilio, States v. (8th Cir.), Cir.) (finding reasoning carefully 464 U.S. 104 S.Ct. considered dictum Supreme “persuasive”), Court (1983) (quoting United States t. cer Watson, 1980)); Cir. see (1977). 53 L.Ed.2d 1062 also United States v. Larranaga, 787 F.2d (10th Cir.1986).

1006 (1962)); 2 E. 289, L.Ed.2d 230 9 S.Ct. Devitt prosecution did perjury in a law question of cf. Blackmar, Jury Prac- Federal & C. seventh sixth and petitioner’s violate not (omit- (1977) 47.05 Instructions tice and § rights). amendment es- of the materiality from recitation ting of Co by the District Second, as noted analogous offense of the elements sential of mail of in the context § lumbia Circuit Jury fraud) Federal [hereinafter cases Winship line of nothing in the sure, there is a materiali- beTo Practice ]. oth materiality anything is “t[eaches] whether the the determination ty aspect to court.” law for the question a er than to a scheme give rise an accused acts of Paxson, 732 F.2d 861 United States is a there ma- specifically, More defraud. looking to the lan Lastly, (D.C.Cir.1988). wheth- to the teriality aspect determination may Sinclair, argument a sound guage of the ac- alleged representations er the materiality is a “historical made that be Saltzburg 2 & S. fraudulent. See cused are H. man general process due to the exception” In- Perlman, Jury Federal Criminal ele Winship that each essential date (1990) (discussing 24.07 note structions § charged must be sub of the crime ment of mail materiality offense in role jury. F.2d States to the See United mitted Practice, supra, fraud); Jury 2 Federal (5th Cir. Johnson, 718 fraudulent (noting that a “false or 47.04 § 1983) (en banc). fraud under the mail stat- representation” ute trial that the conclude Accordingly, we things, “the con- involves, among other treating question in not court did materiality err facts”). material cealment law and as one of 1001 under § appropriately materiality aspect is jury. This it to the refusing to submit component of jury as one to the submitted as to the exist- question larger factual 2. Section 1343 a scheme defraud. fraud and ence of Figge’s next turn We (Second) of Torts 538 § Restatement Cf. They con argument as to related § materiality (1977) (noting that e comment as a materiality is essential an again that tend fraud a the tort of is component of (wire 1343 under the offense § element of jury). feel this result for the question court fraud) and, accordingly, the trial holding our is inconsistent not to to question to submit failing erred the materiality proper decision-maker also find this contention jury. We because, of es- on this level 1001 under § materiality if Even untenable. be essential offense, elements of the sential offense, of the element § does not the ultimate determination the context of Kungys in analysis of our interpretation of substantive on an “turn[ ] trial court did makes clear question of law (raising a law” court), dominantly materiality failing to submit not err question issue. is pre- Abadi, is 706 F.2d at but separate essential jury as a to the fact as to the question a materiality Moreover, under de- a scheme to of fraud and existence of wire separate essential element not a properly submitted The trial court fraud. fraud. narrow, aspect of materi- subordinate elements essential There are two instructions as its ality to (1) a under 1343: fraud offense wire R., at In- VI Doc. fraud. See wire defraud; (2) of inter use scheme state of the v. find no Accordingly, we No. 13.15 struction error in furtherance wire communications treatment of the in the trial court’s to defraud. United scheme materiality under question of Cir.), O’Malley, U.S. cert. Conspiracy Multiple F. Single Versus v. United see Brandon L.Ed.2d States, Cir.1967) Figge argue that their convic a there cannot stand because 301 F.2d 760 tions (citing (5th Huff v. indictment, fatal variance between Cir.), representation be part, instruction A statement or also pertinent the trial court’s 15. a or “fraudulent” when it constitutes "false” half reads: truth, effectively a or conceals material representation "false” or A statement or is fact, A "material with intent defraud. fact" meaning of this stat- "fraudulent” within ute if it important a fact that would to reason- fact and is to material related engage person deciding whether to or able not caused to or is made to be untrue known engage particular transaction. to defraud.... intent be made with R., 146, No. 13. VI Doc. Instruction

1007 alleged single, which multi-faceted con the success of venture aas whole. trial, spiracy, proof which estab Richerson, v. 1147, United States 833 F.2d multiple lished the existence conspira Cir.1987); 1154 see United States v. generally Russo, cies. See v. 1051, Kotteakos United 527 F.2d 1059 States, 750, 758, 765-66, 328 U.S. denied, 906, 66 S.Ct. 426 2226, cert. U.S. 96 S.Ct. 48 1239, 1244, 1248-49, (1946); 90 L.Ed. 1557 (1976); L.Ed.2d 831 United v. States Ken Berger v. 1205, United 295 U.S. 55 ny, (3d Cir.), 462 F.2d 1216-17 cert. 630, 629, (1935). They 79 denied, S.Ct. also clining L.Ed. 1314 914, 233, 409 U.S. 93 S.Ct. 34 say that the trial (1972). court erred in de L.Ed.2d 176 give to multiple-conspiracy their in Here there was evidence tending arguments struction. We hold these are to show this essential structure: the al without merit. leged co-conspirators in were united a com goal Specifical mon unlawful or purpose. 1. Variance ly, they sought profit through diverse outset, important At the it is to clar fraudulent the process means from of in ify the inquiry. nature of the The basic ducing financial institutions make loans whether, light issue is viewed most ostensibly designed which were limited to fund government, favorable to the sufficient there was And, partnerships. their activities upon evidence reason clearly evidenced an interdependence. able could find the existence aof order for the loans to issue to the limited single beyond conspiracy a reasonable partners, it imperative that there be doubt. Dickey, See United v. States 736 money in lending Through institutions. (10th Cir.1984), F.2d nied, 581-82 cert. de employees, FUF and its alleged co-conspir 105 U.S. S.Ct. 83 ator Renda ensured money was avail (1985); L.Ed.2d 964 United States Beh for by inducing able loans credit unions rens, (10th Cir.), 689 F.2d cert. with representations fraudulent as to the denied, 459 U.S. interest-rate purchase return to CDs. (1982). That the record re Also, proof there was in order for veals some scintilla of evidence of a vari partners, loans issue to the limited there (that is, multiple ance evidence of conspira had to be willing financial institutions cies) is immaterial. Through make the loans. with negotiations small, money-starved lending institu- As to the the focal single existence tions, alleged co-conspirator Franklin Wink- conspiracy, point analysis ler was able to ensure that there were in alleged whether the united in a co-conspirators were willing institutions, fact such promising goal pur common unlawful or deposits equal them substantial to double pose. Nunez, See United States v. they required amount that were to allo- (10th Cir.), cert. partners. — cate loans to the limited —, 107 L.Ed.2d Lastly, in order loans issue to limited (1989); 515 F.2d Pilling, States v. partners, there had to fact be limited (10th Cir.1983). princi Of partners, be, had at least on pal concern is whether conduct of the paper, loan-eligible. As discussed more alleged co-conspirators, however diverse fully analyzing below in the sufficiency of far-ranging, interdepen exhibits an challenge, Daily the evidence dence. Dickey, See 736 F.2d at Unit actively persons were to become limited inducing involved in Heath, ed partners, part, (10th Cir.1978), through representations fraudulent as to 99 S.Ct. ed States v. (10th Cir.1981)(en banc) L.Ed.2d Unit cf. liability the extent of their loans. Fur- McMurray, ther, to ensure that the recruited limited J., (Doyle, dissent partners loan-eligible, Daily were ing) (noting that interdependence “serves Figge completed or altered loan materials imputing knowledge a basis for of the such that evidenced material false- plan larger peripheral participants Thus there hoods. activities of the clearly was evidence all together scheme”). ties of them in one here, then, co-conspirators words, In other principal concern is interdependence. exhibited whether the co-conspir activities of aspect ators the charged Moreover, scheme there was evidence which necessary advantageous or to the co-conspirators suc tended to show that co-conspirators cess the activities of profit venture, is, stood from the aspect scheme, another securing process fraudulently loans. 1382; Heath, nell, 580 F.2d at gener- 581 F.2d at each Daily, Figge, and Winkler were complex conspiracy in a like 1022. Often some of the limited partners in -at least al one, among a division of labor there is position in a to clandes- partnerships, and co-conspirators. conspirator Each need not pro- unlawfully siphon off loan tinely and identity of all the other members XXII know the personal ceeds for their benefit. Also, privy or be to all 166-68; it XXIX R. 3845-55. R. aspect effectuate each loan means used to that the fraudulent be inferred could See, e.g., United States FUF) (through conspiracy. provided Renda scheme Martino, 860, (2d Cir.1981), F.2d a stream of opportunity to receive with an 3493, cert. brokerage services. commissions for his United States (observing See Government Ex. at (5th Cir.), partner- Ashley, 467-68 the limited payment by as to the percentage of loan “points,” or a ships of (1977). Generally, it is suffi FUF, of it is a fee that L.Ed.2d proceeds “part purposes single-conspiracy of a they stay cient for charges United Fund so First partic finding conspirator knowingly a business”). there that We are thus satisfied conspirator achieving ipated a core upon which a rea- with sufficient evidence was objective knowledge of the conspiracy a common with single find a jury could sonable v. Mar United States See larger venture. doubt. beyond a reasonable tinez, Cir. Daily Figge argue vigorously that Richerson, 1989); F.2d at at trial established evidence adduced conspirator A here was Franklin core multiple conspiracies, as existence of There is considerable Winkler. evidence However, their contentions on Kotteakos. support the view that Franklin Winkler generally Most point this are baseless. in- phase in each was well-versed blush, troublesome, at their at least first including money bro- conspiracy, stant money brokerage that contention operation, knowingly partici- kerage Renda, FUF, involving and its em- scheme 783-804, 818, therein. See pated XII R. conspiracy. ployees separate constituted 850; 1989-91; Ex. XXIII R. Government in the bro- A number of witnesses involved 34-35; 2-7, Ex. Government testify they kerage operation did that did Daily could find that at 1-3. The well, know and did not know not knowingly conspired with Franklin 635, 644; 394-96, R. Figge at all. XVIII inducing target financial institu- Winkler in 993-99; 737-38, 871-73, XIX R. XX R. partners. money to the limited tions loan Further, witnesses associated 1146-49. 1666-68; 2709-10; R. See XXIII R. XXV Daily did not in- FUF testified that 5-6, And Ex. 34-35. Government rates, falsify them to interest struct so, doing there no doubt that can be input in fact he had no as to knowledge had some 412, 581, brokerage operation. XVIII R. larger At a meet- venture. recruitment 644-45; 1008-09; XIX R. XX partners, in the ing prospective limited 1152-54; XXIII R. R. 1964-65. Certain presence Figge, of Winkler and stat- associated with credit unions witnesses ed: had no contact with also testified I like to What I’d like to do first is would 458, 470, 481, Figge. R. XVIII put go recap exactly back how 555; 699, 772-73, 490, 502, 531, XIX R. partnerships togeth- one of these limited 928-29, 936-37, 947-48; XX R. you’ll er so all know.... FRANKLIN 1077-78, 1088; 1581-82, 1590-91, XXI R. acquaintance has an named MARIO Also, sug- some evidence largest purchaser who owns the RENDA distance gests that there was certain entity in the United States. That CD’s brokerage Renda’s activities and between purchases the is First CD’s scheme. R. XX the investment XIX say deposit I’ll Fund .... word, I use 1230, 1290-95, 1324; R. 1378. R. XXI they purchase really means CD’s it However, persuaded that there we are still savings They from and loans. banks upon a rea- sufficient evidence put money where mon- only can their conspiracy single could find a sonable ey’s protected by So FDIC. MARIO doubt. beyond a reasonable agreement reached an FRANKLIN separate cooperate us. get The fact that a number If we can a bank to entity in the go have been involved will to his transactions with us. MARIO of a basic money does not establish existence find for the bank. The case bank, Par- separate conspiracies. with the agreement number of we make iterations, slight added). this has some the we but sis if the Instruction 24 instructed that agreement. say jurors basic to bank beyond found a reasonable need, for example, one million dollars doubt the conspiracy exist, “you did partnership bring for a limited you and we’ll should next determine whether or not the prime somewhere between 10 and 24 willfully accused became a member of the signature individuals for be loans and it conspiracy.” will Id. at Instruction No. 24. Further, secured their interest in the limited Instruction 25 that if it partnership (unintelligible). you appeared And if beyond a reasonable doubt “that that, agree will agree to do then we will in the Indictment deposit $2,000,000. your bank was willfully formed, and that the defen- dant willfully became a member (emphasis Government Ex. at 1-3 conspiracy” then should determine added). We therefore conclude that whether one or more overt acts were com- Figge’s and challenge variance must fail. mitted. Id. at (emphasis Instruction No. 25 added). Multiple-Conspiracy 2. Instruction Instruction 26 up by saying summed if it Daily argue and also that was beyond found a reasonable doubt that the trial court prejudicial committed error conspiracy “the alleged in the Indictment declining in to submit their multiple-con formed”; willfully was that the defendant spiracy instruction jury. Generally, to the willfully became a conspir- member of the this instruction jury cautioned the that it acy; and or one more conspirators know- only permitted to find the defendants ingly acts, committed one or more overt guilty conspiracy charged of the in the jury may then the find the guilty defendant indictment, several, proof and that of sepa of conspiracy in violation of 18 U.S.C. conspiracies rate the in did not proof constitute of 371. Id. at Instruction No. 26. § single, overarching conspiracy charged indictment, separate the unless the con In evaluating a remarkably similar set of spiracies single part established instructions, prejudicial we found no error R., conspiracy. See VI Doc. in the give trial court’s failure to an ex Proposed specificity Although Instruction No. 52. the press multiple-conspiracy instruction. Figge’s multiple- Watson, United conspiracy is perhaps instruction desirable (10th Cir.), cert. 444 U.S. circumstances, say under certain that, we cannot (1979). 62 L.Ed.2d 51 As in here, refusing give it trial that, Watson we conclude viewed as a prejudicial court committed error. whole, the trial court’s instructions “ade quately question covered multiple [of The trial court carefully instructed the conspiracies].” In particular, Id. the trial jury government had the burden put court on sufficient notice that proving guilty each defendant beyond a in order to convict Daily under doubt, reasonable er the and that it had to consid- beyond Count 30 it had to find a reasonable separately evidence as to each defen- particular doubt R., dant. VI Doc. at Instruction Nos. charged therein existed and that each de 8, 9, Further, and 11. along the lines of sum, fendant was member it. In Figge’s instruction, proposed multiple-conspiracy issue we find no trial court instructed that “the defendant merit in Figge’s claims error. cannot any be tried or convicted offense charged not in the Indictment.” Id. at G. Character Instruction Instruction No. 48. further contend that the Instruction 23 instructed on the terms of prejudicial trial court committed error in conspiracy statute; a conspiracy is failing requested to submit their instruc- accomplish a combination “to some unlaw- tion as to jury. character evidence to the purpose”; ful and that the evidence “must Defendants maintain that this was one the- beyond defenses; show ory many, many reasonable doubt ... of their both “had way members some or manner came years personal reputation to a understanding on, Daily mutual try rely having to ac- honorably served complish a common plan”; military with distinction unlawful and that the common were a plans years.... and unlawful having spent nearly plan to violate the doing wire fraud stat- a life-time community service work ” (18 1343), plan ute U.S.C. and a types.... violate of various Brief Appellants § (18 (record the false statement omitted). statute at 52 Giving U.S.C. citations full 1001). Id. at (empha- Instruction No. 23 § consideration to the instructions as a cases, must, whole, agree criminal defendants with the as we in ordinarily are entitled to a character defendants. like the above if condi struction two present infrequently evi not Defendants First, must are satisfied. defendants tions character, with the aim good dence of good present as to their fact evidence to draw inference encouraging character, through either their testi own unlikely they committed the that it That mony that of character witnesses. offense, request an instruction charged is, they affirmatively must make their char subject. See Michel from the court case. acter an issue See United States, 335 U.S. son United Thomas, F.2d 536-37 States v. 93 L.Ed. Oertle S.Ct. Evidence, (11th Cir.1982); su 1 Criminal States, v. United Second, evi pra, their character concern that are relevant dence must traits (1967); 1 C. Hawley v. to the offense. See Torcia, Criminal Evidence Wharton’s Evi (1985) Criminal [hereinafter Evidence, Cir.1943); supra, 1 Criminal regard, Figge’s In this dence ]. law-abiding is being The trait of typical: proposed instruction any generally viewed relevant crimi nal On Evidence offense. See McCormick defendant has offered evi- Where a (E. 1984). Cleary at 567 3d ed. general reputation good for dence of truth admitted, de such evidence is Where veracity, honesty integ- or and and in con is entitled to an instruction fendant formity citizen, rity, law-abiding jury a or as is purposes with the for which it along with consider such evidence should all 973; at Hawley, admissible. See 2 in the evidence case. the other Practice, supra, 759. Federal reputation a defendant’s Evidence veracity, honesty or for truth facts, these it is clear that On law-abiding has integrity, or as a citizen Daily testified first condition at satisfied. discussed; or that those traits not been of the defendant’s length regarding distinguished his some character have not During Air 24-year career in the Force. may sufficient questioned, been time, he received several commenda good reputation an inference of warrant as tions, including a Bronze Star for valor. traits of character. those XII 12-13. noted Significantly, R. reputation, of a defendant’s Evidence in Air Force many years that he of his for of traits charac- with those inconsistent ter at top clearance. Id. possessed secret ordinarily in the commission involved clearance, Daily get this In order may give to a charged rise of the crime reasonable investigated by law enforcement had to be officials doubt, jury since reputa to ensure that he was “a person good of improbable think it And, ble, in upstanding Id. at 21. man." respect those traits would in of character clearance, Daily keep security his order to a crime. commit such undergo periodic re-investigations of had to his background. re-investigation The last in always mind that jury will bear The year his approximately occurred one before imposes upon a defendant never the law in never retirement October duty case burden in a criminal security as lost his clearance a result producing any evi- calling any witness or re-investigations. Id. at 21-22. these dence. testimony, R., Through at Instruction his also Proposed own VI Doc. presented (thereby McMurray, character evidence sat- No. United States see condition). reh’g isfying the first testified grounds, during years employment 680 F.2d 695 that several other granted on Practice, supra, Northrop, military projects. he on Jury worked 1 Federal essentially He (endorsing during the use of “secret” clearances those 15.25 had instruction). court, times, updated. trial how which XXXIV R. The identical ever, as to give this instruction 5406-07. alluded his extensive failed evidence, community. in in his the instructions involvement Specifically, in ing activities character jury cannot be he that he was active it testified submitted church, addressing is in the and serv- reasonably singing construed as his choir years four on the Board of Trust- sue. resting large ees.16 XXXIV R. 5408-09. part noted of alleged evidence that he Budget also served as activity by Daily Chairman of fraudulent and Figge—in his homeowner’s association. jury evidently Id. at 5409. which found decision- its Further, Figge process making testified that he was active to be difficult. The in the chapter local charges Junior Chamber deliberated on the of the indict- Commerce, days, of service an community pausing only international ment for three for the organization, eventually holiday, finding rose to Christmas before highest post the second orga Figge guilty single the entire charge conspiracy.17 nization. Id. 5410-11. It cannot be nonprej- deemed tough udicial in a case like As for satisfaction of the second condi- might was not it prop- instructed that (i.e., relevancy offense), tion erly good consider the evidence of charac- Figge’s testimony we also find ter, may (when light viewed be sufficient. The crime at issue course evidence) generate other doubt. a reasonable to violate 18 U.S.C. §§ minimum, 1343. At a Figge’s testimony touches on their charac- We must agree, therefore, that Daily and being ter as to the trait of law-abiding, Figge’s convictions cannot stand and the virtually which is relevant to all offenses. case must be remanded new trial on Also, Daily Figge’s success ac- Count 30. quiring retaining security their clear- ances in the of re-investigations may face H. Sufficiency the Evidence reasonably bearing be trait of viewed on the honesty, clearly which is relevant to Daily and Figge argue also prosecution the instant conspiracy by based there was insufficient evidence to convict engage defendants to conspiring them of to violate 18 U.S.C. fraudulent conduct. at 972-73. In Hawley, 1001 and 1343. Although §§ we are re vein, Figge’s the same suc- versing their convictions for retrial on oth in rising top cess community to the of an international grounds, er we must still reach this issue. organization may service be retry To prosecu defendants after the reasonably implicating viewed as the traits tion’s evidence at their first trial was insuf honesty integrity, and also concern ficient would violate the Constitution’s dou Const, prosecution. note, the instant moreover, Id. We ble jeopardy proscription. U.S. testimony V; that there was oth- amend. States, see Burks v. United only er put 1, 18, witnesses that not tended to U.S. (1978); 57 L.Ed.2d 1 character of also satisfied the second at issue but Doran, see also United States v. condition, (10th address- Cir.1989); 882 F.2d United ing their character relative to the traits of Morris, States v. being law-abiding (10th Cir.1979). and honest. R. See XV 21-22 (discussing Daily); R. XXXIV 5369- proof The standard of for determining (discussing Figge). whether .there was sufficient evidence to Accordingly, were enti- support jury’s guilty verdict as to the to tled an instruction as to evi- conspiracy character charge at basically issue is “the and, failing give dence to such an in- same standard as that used to review the struction, the trial court jury’s committed error. finding single conspiracy—the of a here, presented Under the circumstances light entire record be must viewed moreover, we conclude that this error was government most to favorable to deter- prejudicial. complex This was case— mine whether all the evidence and reason- but, rather, passing, 16. In we note that specifically our decision in bearing as evidence on States, Burns v. United Figge’s allegedly good 286 F.2d 152 Cir. character. 1961), upholding proper a as trial court's exclu States, Dallago sion of evidence of defendant’s attitudes United 427 F.2d. respect (where prayer, distinguishable (D.C.Cir.1969) habits with to jury is deliberated First, Burns, days, for at noting least two reasons. for five guilt unlike that "if evidence of here, religiousness per Figge’s overwhelming se not at issue was would have suc voluntary participation orga sooner”); but rather his cumbed much Osborne v. United (including religious (8th Cir.1965) organizations) (noting nizations that, commonly having among things, that are understood as elee other the fact that de mosynary hours, socially objectives. or other beneficial liberated for sixteen over the course of Second, Figge’s working days, evidence of two church-related activ full "lends credence to the introduced, Burns, dispute ities was not as in to view that one”). the case awas close and difficult immaterial factual averments of the indictment 112 L.Ed.2d —, therefrom be drawn inferences able sufficient that convinced (1990). We are beyond a guilt show enough to sufficient support at trial presented was evidence Dickey, F.2d at doubt." reasonable Daily18 guilty Fox, jury’s verdicts see 583; — Figge.19 Cir.), 1508, 1513-14 said that Witnesses 2406-08. XXIV R. see also ample evi- Daily, was respect there With applica- draft fill out a requested that Daily tion, conspir- on the conviction support his dence copy. X R. sign additional blank an pri- that bookkeeper testified Daily’s acy count. 1837; Examiners 13; XXV R. 2826-27. R. XXII of the date commencement to the or had applications loan of these that some found stat- problems and scheme, Daily flow had cash 1451-52, 1457. XXI R. falsified. been partner- involving plan limited had a ed that he falsify cases, told to investors some In properties and his take over ships would (told Daily or R. 1912-13 XXII 3833-36; information. Figge); see R. XXIX flows. cash cover his Winkler); XXV (told R. XXIII evidence was 711. There Ex. Government also (told by Daily); R. 3183-85 XXVII R. 2709-10 Daily and that to show tends presented that However, Daily personally in- Daily). (told by wor- arranged have “credit Winkler Franklin applica- on investor for one is, assets creased (that borrowers financially stable” thy and XI qualified a loan. get her tion in order to entities estate the real partners limited Further, stated witnesses R. 69-70. Winkler) loans take out by Daily and formed 19-20, Daily, R.X applications to gave or sent lending institutions. federally-insured from 1837; 29; R. XXIV XXII R. recruiting integrally involved Daily was changed applica- later was information tions, ven- the real estate partner investors limited tures, 19-22, were sub- applications X R. talking at lion’s share did prior knowl- their without other banks mitted executives meetings with account recruiting 27-28; 14-15, 2719-22. R. XXV edge. X R. com- FUF, agents his from own real estate from had that he testified a witness case In R. Realty), XXII others. (Sam pany behest, be- which he Daily's papers, signed at 1253; Govern- 1827; Ex. also Government see might be interest- merely he showed that lieved testified 1257. Witnesses ment Ex. he found that investing. The witness later ed in high, or that be would profits them told papers. R. 23-27. signed X loan in fact had 11; lifetime,” see X R. "deal of was the "signa- case, his he witness said saw another 2585-87, 1833-34; R. XXV XXII R. forms, recognized he in what ture” 11, 17; R. XXII very X low. R. risk also handwriting. There was R. 3-8. Daily's XI 2822-23; 2587-2788, see 1835-36, R. XXV property been had appraisals of evidence falsified, 2, 84. Ex. also Government given "appraisals” were that these Furthermore, a witness testified 1480-85; R. XXXII R. Daily's XXI direction. ignore cau- partners to prospective limited told 4704-19; R. 3590-92. XXVIII see also Private Placement in the tionary statements not property was suggested that Evidence (PPM), disclosure an investors’ Memorandum promised. partnerships into transferred Indeed, evidence XXII R. 1944-45. document. However, proceeds the R. XXX 4311-12. even partners never these suggests some that accounts, partnership deposited were into loans 2835; R. 3136- XXVI R. XXV received PPMs. Winkler, 1803, Daily, and only which R. XXII Daily the knew suggests that also 37. Evidence 1459; XXII R. 1665- Figge 67, R. touch. XXI could sluggish, XIII was in Hawaii market estate real written Checks were 1844-45. 5556-57, he did 270-73; but that R. XXXIV R. company) (both real personally and to his estate Ex. Government this information. not disclose R. 3845-55. XXIX accounts. those out of 1253, at 87. Daily kept control evidence that was There they believe did not that testified Witnesses that partnerships, and one of the properties in loans, for the personally liable they be would money. R. XXXI amount of he retained some 4625-60; 2685-86; 1836; Govern- see R. XXV XXII R. R. 5354-55. XXXIV 1257, 84; at 1253, Government Ex. at Ex. ment 47, many of the loans that was evidence There that the said any case that in and 1450-62; R. XXIII paid. R. XXI never were pockets” first. “deep go the after banks would 1546-47; R. 4023- XXIX see XXI R. But repre- 2036. 2407; 2685. R. see XXV R. XXIV apart, at began plan to fall When the 24. guarantee a personally he would sented that 2712-13, 2602-04, assurances, R. 1835; gave XXV first XXII R. the loans. large amount loans. more to take out investors 50; but then asked 1257, Govern- see also at Ex. Government 2713; 1845-46, R. XXXII XXV R. R. XXII partners were cf. 2. The limited at Ex. ment Daily "was that (noting context another required to be would not that also told give ready always great and was talker” a R. money XXII later. any more contribute guarantee, personal assurances). Daily’s As for 1838; at 53-54. Ex. Government note, told $200,000 and then on his own paid he qualify- told investors Daily Winkler 1861-65; money. R. XXII no he had investors (contrary easy, and ing loans would for the 60-72, 9-10, 126. at Government Ex. lending institu- told the Winkler had to what tions) approval of dependent on deposits were relating to 1838-39; Although there is evidence less XXIII R. 19. XXII R. loans. Daily, that there 2709-10; we conclude than 2033; 1989-91, Government R. XXV 1-4; support his adequate evidence at Ex. Government at Ex. sum, light prejudicial Jury In error in Practice 15.25. When defense counsel charge impacted given, which both defen- it advised would not be dants, judgments in at the quest general Numbers 88-1626 instruction a conference re- 88-1627 must be reversed and the was renewed them that all re- quested for proceedings cause is remanded further be given instructions and that de- 89-3333, those Number objected matters. fendants being to their denied. appeal is dismissed as moot for reasons XXXV R. 5743. supra stated above. See note We have tendering given, held that instructions which were not and a ON REHEARING ORDER mere statement fit the case and given, should be preserve does not the is March Martinez, sue. United (10th Cir.1985). opinion Our HOLLOWAY, Judge, Before Chief hold, the instant case did not do McKAY, not LOGAN, SEYMOUR, MOORE, hold, now that in all ANDERSON, instances the failure TACHA, BALDOCK, BROR- give such a character instruction EBEL, as was Judges, SEAY, BY and Circuit requested plain here is error. Neverthe Judge.* Chief District less we remain convinced that on this plaintiff-appel- On consideration of the record, due particular to the circum petition lee’s rehearing rehearing trial, stances of the issues we should banc, majority panel, Judge en Holloway lows, a of the rejection notice instruction. error of of the critical Ebel, Judge conclude as fol- Judge Seay voting grant Chief The sole conviction resulted and is rehearing by panel: us before was that Count charge a First, argues government Figge conspired, in violation requested refusal of defendants’ char- of (18 18 U.S.C. commit wire fraud pre- not 1343) acter evidence instruction was served for as U.S.C. and to submit false appeal not be noticed juris- statements as to matters within the plain 52(b), error under (18 Rule Fed.R. agency diction of a federal U.S.C. except 1001). note that Crim.P. We trivial para- Such crimen is a falsi word,1 inconsequential change digm case for consideration of evidence well-recognized reputa- character and good reputation. character or Edgington specifically tion defense instruction was quested by re- v. United the defendants. Federal 41 L.Ed. 467 see Unit- presented conviction also. There evidence was also evidence that falsified loan application. tends show himself was XXI R. 1468-70. Further, heavily recruiting general partner involved in some of the activi- was a in some 2-4; 2269-77, 2344-49, partnerships, R. ties. XVI XXIV R. XX R. and in some present power XXXIV R. He was cases he 5550-57. had to write checks from the recruiting meetings partnership over, and sometimes elaborated XXII accounts. R. More- 1664-65. Daily testimony on what said. XXII R. see also indicated that checks were writ- 34-40; Figge partnership to Government Ex. at ten out of Government accounts. XXIX 3849-50; Figge represented at 13-14. R. see also also XXXI R. 4628-33. There 2346-48, risk, also there was little XXIV R. was evidence that he XXXIV retained control of 5556-57, profit property financially. R. and substantial made some and that he to be benefited However, then, partnerships. jury, XXXI R. the Figge XXXIV R. 5551. 4625-33. A reasonable sluggish Figge guilty of could find of knew state of real offense beyond a estate market in Hawaii. XXXIV R. reasonable doubt. 5556-57. trouble, projects Figge When the ran into called * meeting, a investors to where he and Seay, Judge, Honorable Frank H. Chief to out asked them take more loans. XXII R. States District Court for the Eastern of District 1845-46. Oklahoma, sitting by designation. Figge told some investors to submit to him a application, signed, instruction, paragraph draft and a blank one requested as 1. In 3 of the cases, R. stating well. XXXIV some 5552-53. In inves- defendants submitted an instruction give applications light told reputation tors were to either evidence inconsistent (who committing would then forward the traits involved in the offense applications Daily). charged, ap- R. jury may improbable XXII 1836. One think it "that plication up bearing person good respect later turned the name of a character in of those wife, as (Emphasis the investor’s well as name of the traits would commit such a crime.” investor, information, added.) personal with incorrect Jury The in 1 instruction Federal Prac- false XXIV references. R. 2350-53. There tice 15.25 uses the word "to” instead of "of.” other testimony and testi- by Figge’s tion mony. 1235, 1237 Darland, ed States (5th testimony by Mr. There was accountant, who public Young, a certified (1982). Figge’s tax re- accounting work on did by both presented was such evidence Here partnerships turns, for his tax work testimony own through their defendants at 5341-5344. R. XXXIV planning. tax testimony. and other directly several for Young dealt with who Burkhart Daily called witness Figge never Young testified years. Air Force Daily in the directly with worked returns; in his tax things” to “hide tried Young team. Inspection General’s the Pacific on XV as an office getting an- trouble never had for to work came R. 3. He later always Figge was questions and swers He said in 1979. manager request- Figge never respond; able workers for office training book Daily's anything or alteration any deletion ed activity be conducted that their instructed Id. at 5369-70. during such work. Id. at ethical.” legal and that “it’s so Daily an still considered said he Burkhart for Nor- that he worked Figge testified to doubt had no reason honest man during years; mili- throp for several 13 or friendship established of their on, basis he had secret tary projects he worked had earlier, although Burkhart years time; that F.B.I. nearly all the clearances the busi- and investment savings lost his investigated his others back- agents and 21-22. Daily. Id. at ness venture with updated; ground; these clearances of Air years his about Daily testified by Figge held security clearances were com- meritorious service; several his Force mendation medals Northrop in 1952 his work with since first stars and two bronze termination up and until this administrative Air the Pacific valor; assignment his trial was finished. de- Daily’s team. Inspector General’s Force community as activities such his scribed shown trustworthiness recognition for for his being Budget Chairman home- topa secret he held testimony his his association in condominium owners’ a he was the time from security clearance units; he served on complex of about 368 investiga- lieutenant, followed which first tion of his his church of Trustees for the Board you “make sure background to a also elected to years; four he was some man and upstanding reputable, a are for the Junior national board directors background.” complete your go into inter- and to three of Commerce Chamber clearance, having one such more than had organization, and offices of the national Nam and to Viet went he honors, checks when highest one of Figge received their assignment, Pentagon went he when with and was elected membership, a lifetime back- investigating his the F.B.I. in 1972 of the California center president of worthy if he was see ground to Thus Jaycees. Id. 5404-11. top secret clearance. responsibility XII R. presented substantial charac- also himself 20-22. as permissible, noted ter which evidence McCormick, supra, was substantial above. there as to Thus and and good character introduced evidence testimony by noted, Since, there was Burkhart through witness reputation on their by others be- the defendants himself, permissible. by Daily also reputation to the character half as issue, “Unlike has stated: Ninth As the Circuit whether defen- need not decide witnesses, restrict who must character their direct may place his testimony alone dant his testimony appraisals a defendant-wit in issue. character reputation, defendant’s ness of conduct instances specific cite of character Along with the extent char possesses a relevant defendants, proof he as acter trait presented for evidence note the United peaceableness.” such numerous acquittal on defendants’ F.2d Giese, 597 v. States on con their convictions charges spiracy omitted), Cir.1979) (footnote Moreover, jury’s charge alone. 62 L.Ed.2d days, 444 U.S. (1979). three with extended deliberations Evidence on McCormick holiday, See also the Christmas pause only for a before In 1984) (“By (E. Cleary 3d ed. 191, at 568 were returned. guilty verdicts history supportive personal relating circumstances, we are all these light however, the character, defendant good of the re refusal to hold that constrained result.”) the same [hereinafter achieve affect plain error instruction was quested trial, an McCormick fair rights to a ]. ing substantial 52(b), Fed.R. Rule notice. error we should substan- Figge, was likewise As to there Logan, 717 v. Crim.P.; States reputa- see United good character and tial evidence of F.2d (3d Cir.1983) (determina- plain tion on error depends upon facts and circumstances, plain error found); being cf Darland, 626 F.2d at 1237. We do not importance diminish the general provided rule Rule Fed.R. Crim.P., requiring a distinct objection to a

charge or to the refusal of an instruction. only, hold in accord also rules, with the 52(b), under Rule plain error should be found here in the refusal of such a request ed instruction, considering “the record from all four corners.” United

Munz, Cir.1974). Accordingly, petition for rehearing by the panel by DENIED order of Judge Holloway and Judge Ebel. Chief Judge Seay grant voted to rehearing by the panel. A request for poll having made, been

suggestion for rehearing en banc was con- sidered all the active judges of the court denied them, Judge Baldock voting grant rehearing en banc. Accordingly,

the suggestion for rehearing en banc is

DENIED. Clell I. Cunningham, (Janice III M. Dans-

by, him, briefs), Miller, Dollar- hide, Dawson Shaw, & City, Oklahoma Okh, for plaintiff-appellant. Debra (K. G. Houde Wilson, Nicholas brief) Fellers, Snider, William JOHNSON, R. Blankenship, Bailey Tippens, & City, OkL, Oklahoma Plaintiff-Appellant, C.R. Gangemi, Jr., David Love, B. Winston Strawn, & Chicago, Ill., for defendant-ap- pellee. BEATRICE CO., FOODS Defendant-Appellee. Before BALDOCK, BARRETT and EBEL, Circuit Judges. No. 89-6101. BARRETT, States Court of Senior Appeals, Circuit Judge.

Tenth Circuit. William R. Johnson (“Johnson”) appeals from the district court’s entry of summary Dec. judgment in favor of his former employer Beatrice Foods (“Beatrice”) on his claim of intentional infliction of emotional distress.1

Jurisdiction is based on diversity of citizen- ship, 28 U.S.C. Johnson contends that the district court erred finding (1) that: portions of his claim relating to wrongful suspension and discipline by Beatrice were pre-empted by 301 of the Labor-Management Relations Act (LMRA), 29 185(a); U.S.C. (2) his allegations, true, even if did not allege facts sufficiently outrageous to sustain a cause of action under Oklahoma state law for intentional infliction of emotional dis- 1. The tort of intentional infliction of emotional the State of Eddy Brown, Oklahoma. See distress is also known as the outrage tort (Okla.1986). P.2d 75 n. 1

Case Details

Case Name: United States v. Sammy G. Daily and Frederik A. Figge

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 1, 1991

Citation: 921 F.2d 994

Docket Number: 88-1626, 88-1627 and 89-3333

Court Abbreviation: 10th Cir.