UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene ALLEN, Defendant-Appellant

88 F.3d 765, 96 Cal. Daily Op. Serv. 5009, 96 Daily Journal DAR 8048, 1996 U.S. App. LEXIS 15872, 1996 WL 366446
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 3, 1996
Docket94-30393
StatusPublished
Cited by36 cases

This text of 88 F.3d 765 (UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene ALLEN, Defendant-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene ALLEN, Defendant-Appellant, 88 F.3d 765, 96 Cal. Daily Op. Serv. 5009, 96 Daily Journal DAR 8048, 1996 U.S. App. LEXIS 15872, 1996 WL 366446 (9th Cir. 1996).

Opinions

SCHROEDER, Circuit Judge:

Edward Allen appeals his conviction and sentence, following a jury trial, on thirty-five counts of making false statements in loan applications to two federally insured financial institutions, in violation of 18 U.S.C. § 1014. On appeal in a counseled brief and a pro se supplemental brief, he raises nineteen issues, of which three are decided in this opinion.1 In this opinion we first consider Allen’s challenges to his conviction on jurisdictional grounds. He contends that the government failed to prove that the two financial institutions, the Western Bank of Oregon (‘Western Bank”) and the Southern Oregon Federal Credit Union (“Southern Credit Union”), were federally insured at the time of the' alleged criminal conduct. We then turn to his challenge to his sentence. He contends that the district court incorrectly calculated the losses resulting from his fraudulent conduct, and erroneously considered allegedly uneounseled convictions in its determination of his criminal history category. We vacate the convictions on two eounts because the [768]*768government’s proof failed to establish the insured status of the credit union, but affirm the remaining counts. We conclude that there is no merit to Allen’s challenges to the loss calculation, but in light of the two vacated counts, we vacate the sentence and remand for resentencing. We also remand for a hearing on the validity of the challenged prior convictions.

FACTS

In June of 1988, Housing U.S.A., a mobile home dealership in Oregon, hired Edward Allen to sell mobile homes. Allen quickly became a manager. He completed purchase agreements with customers, helped them obtain financing, and submitted their financial information, including purchase agreements and credit applications, to Western Bank. In order to obtain financing from the bank, a mobile home customer had to make a down payment equal to twenty percent of the purchase price. Many of Allen’s customers, however, could not satisfy this requirement. Consequently, he falsified purchase agreements to show a higher down payment. He also falsified credit applications for certain customers, so that they showed higher asset holdings.

Additionally, Allen made false statements on personal credit and loan applications submitted to Western Bank and Southern Credit Union. He falsely represented his birth date, social security number and bankruptcy status.

On June 28, 1993, Allen was arraigned in federal court on a fifty-two count indictment charging him with violations of 18 U.S.C. § 1014. On December 15,1993, a grand jury returned a forty-seven count superseding indictment against Tillen. On January 31, 1994, after trial by jury, Allen was found guilty on thirty-five counts. He received a total prison sentence of forty-six months.

FEDERALLY-INSURED STATUS

Allen contends that the district court erred in denying his motion for acquittal because the government failed to prove that Western Bank and Southern Credit Union were federally insured at the time of his fraudulent conduct. He asserts that there was no evidence of insured status as of the time the fraudulent statements were made.

We review the district court’s denial of a motion for acquittal in the same manner as a challenge to the sufficiency of the evidence. United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989). Consequently, we review the evidence presented against Allen in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. James, 987 F.2d 648, 650 (9th Cir.1993); Shirley, 884 F.2d at 1134 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)(emphasis in original)).

A. The Southern Oregon Federal Credit Union

There was no direct testimony of the credit union’s insured status as of the time the fraud was committed. The government offers three arguments in support of its position that the evidence was nevertheless sufficient. First, it argues that jurors could infer the credit union’s federally insured status from the title, which includes the word “Federal.” This court, however, rejected this very argument in James, 987 F.2d at 649-50, where we held that the “names of the banks,” which included Home Federal Savings, were not in themselves sufficient to establish federally-insured status under 18 U.S.C. § 1014.

Second, the government argues that Southern Credit Union official Sunni Boyd’s trial testimony establishes that the credit union was federally insured in 1988-89. It does not, because the testimony did not relate to the relevant time period. During the government’s direct examination of Ms. Boyd, the following exchange took place:

Q. (By Mr. Hoar) And Ms. Boyd, is the Southern Oregon Federal Credit Union insured by the National Credit Union Administration?
A. Yes, it is.
Q. So it’s a federally-insured credit union?
A. Yes.

[769]*769The problem with this testimony is that it took place during trial in January, 1994. Boyd answered the prosecutor’s questions in the present tense. Thus, while her testimony may establish the credit union’s insurance status in 1994, it does not establish that the credit union was insured when Allen made his fraudulent statements in 1988-89.

The government responds by arguing that the above exchange took place during questioning about a 1989 transaction involving defendant Allen, and that during the exchange the jury had before it an exhibit documenting the 1989 transaction; therefore, jurors could reasonably infer that the credit union was federally insured in 1989. We reject the government’s argument. Boyd’s present-tense answers simply do not support the inference that Southern Credit Union was federally insured at the time of the offenses, some four and a half years earlier.

Third, the government points to testimony by Kenneth Agee, who was employed by Housing U.S.A.’s parent company between 1987 and 1990, which includes the period of Allen’s fraudulent behavior. Agee, whose testimony was preceded by several days of testimony from other witnesses about mobile home loans from Western Bank and the Southern Federal Credit Union, testified to the following:

Q. With regard to these ads, isn’t it true that Shadow Ranch actually sought financing through companies that weren’t — that were non-bank institutions, like Greentree, WESAV, nonfederally-insured agencies or companies? Is that right?
A. Yes, that’s correct.
Q. And so with regard to down payments with some of those other companies, they may not have the same requirements as a federally insured institution? Correct?

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88 F.3d 765, 96 Cal. Daily Op. Serv. 5009, 96 Daily Journal DAR 8048, 1996 U.S. App. LEXIS 15872, 1996 WL 366446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellee-v-edward-eugene-allen-ca9-1996.