United States v. Chenaur

¶5ROBERT VAN PELT, Senior District Judge.

¶6Carl Clayton Chenaur appeals his conviction by a jury on all counts of a 22 count superseding indictment relating to (a) aiding and abetting officers of an institution having federally insured accounts who had intent to defraud their own institution, the United States, or the Federal Savings and Loan Insurance Corporation (21 counts based on 18 U.S.C. § 1006 and 18 U.S.C. § 2) and (b) making a false statement to a government agency (one count based on 18 U.S.C. § 1001).

¶7The essential facts leading up to his indictment are as follows:

¶8Chenaur was a mortgage banker and president of First Western Mortgage Company and Bonded Escrows, Inc. Both companies make mortgage loans to individual homeowners. In the interests of clarity, a brief explanation of terminology and practice in the mortgage loan industry is in order. Mortgage companies generally finance consumer loans by borrowing money from institutions such as banks or insurance companies. The mortgage company usually sells the mortgages as soon as they obtain them instead of holding them for an extended period and tying up their own capital. Sometimes a mortgage broker is used to find a buyer for the mortgages. Frequent mortgage buyers are savings and loan associations, mutual savings banks, life insurance companies, pension funds, or other long term investors.

¶9During the period covered by the indictment, Chenaur (as principal of First Western) sold approximately $1,800,000 worth of FHA and VA mortgage loans to Greenwood Savings and Loan Association. Initially, Greenwood gave First Western a letter of commitment dated June 23, 1971 to purchase $700,000 worth of loans from First Western, This letter was signed by Biff Connelly, the vice president of Greenwood. In exchange for the commitment, and at approximately the same time, Chenaur paid Greenwood a 1% precommitment fee ($7,000), which was standard in the industry. Chenaur testified he later had a verbal commitment from Marvel Morgan, the president of Greenwood, that Greenwood would purchase additional loans from Chenaur, which they did. On both the original $700,-000 loan package and the subsequent loans sold to Greenwood, Chenaur paid an additional 1% fee to entities entitled Territorial Investors and Morco Enterprises, Inc.1 Biff Connelly and Marvel Morgan were the only persons in those companies.2 Connelly and *297Morgan, in addition to being vice president and president of Greenwood, were both members of the seven-man board of directors. This additional 1% fee provided the basis for the criminal charges against Chenaur. The government claimed that the fees to Territorial and Morco were kickback payments. Chenaur classified the payments as brokerage fees. At issue during the trial was whether Morgan and Connelly, as principals, had the requisite intent to defraud Greenwood and whether Chenaur knew of this intent and wilfully assisted them in the criminal venture.3 The jury found the requisite intent and returned a guilty verdict against Chenaur.4

¶10On appeal, Chenaur raises the following issues:

1) Whether any institution protected by 18 U.S.C. § 1006 was defrauded where Greenwood received the going rate in precommitment fees and the institution was not adversely affected financially;

2) Whether there was sufficient evidence that both defendant and the principals had the requisite intent to defraud;

3) Whether defendant could be convicted of aiding and abetting when neither principal was charged with a federal crime;

4) Whether the indictment sufficiently informed defendant of the charges;

5) Whether the trial court erred in denying defendant’s motion for continuing discovery and a bill of particulars;

6) Whether the defendant was prejudiced by the filing of a superseding indictment; and

7) Whether the trial court erred in not asking proposed voir dire questions.

¶11In considering these issues we must keep in mind that the evidence is to be viewed in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

¶12I. WHETHER THERE WAS SUFFICIENT EVIDENCE THAT GREENWOOD WAS DEFRAUDED

¶13Defendant contends that Greenwood could not have been defrauded because they were not injured financially. It is his position that if anyone was defrauded it was the rest of the members of the board of directors who did not share in the brokerage fees which were legal. Chenaur contends that the board of directors is not a legally protected entity under 18 U.S.C. § 1006 and thus no basis exists for the criminal charges brought here.5

¶14*298The answer to these arguments lies in (1) whether the fees paid by Chenaur to Morco and Territorial were in fact legal brokerage fees and (2) the meaning of the term “defraud.”

¶15*299There was ample evidence that none of the normal brokerage services were supplied by Morgan and Connelly. Connelly testified he would not characterize the fees he received as broker’s fees. Both Connelly and Morgan stated they performed no services for the fees, and even Chenaur testified he did not think Morco or Territorial were providing any particular service, and that:

[I]f I didn’t write the checks to Territorial and Morco, they [Greenwood] wouldn’t buy my loans.

¶16T. II, p. 349, 1. 18-19.

¶17Even if Greenwood suffered no economic loss through the dealings with Chenaur,6 it does not mean there was no intent on the part of the principals to defraud the institution. The trial court correctly recognized this in its Instruction No. 11 to the jury.7 As the Fifth Circuit has stated in Beaudine v. United States, 368 F.2d 417, 420 (5th Cir. 1966):

The fraud commences with the deceit— ostensibly acting solely for the interest of the principal while all the while the faithless servant knows he, too, has a pecuniary interest which will or might subvert his undivided loyalty. When there is the purpose to deceive, it matters not whether the objective is to obtain an advantage or to cause the principal to suffer a loss. Either in effect completed the fraudulent purpose.

¶18The evidence was uncontradicted that the board of directors (who can hardly be separated from the corporate identity of Greenwood) did not know of this 1% fee to Territorial Investors and Morco Enterprises, Inc. which Connelly and Morgan were receiving. Connelly testified that the fees they received were not disclosed to the board because the fees were contrary to state and federal regulations and they would have been fired. Morgan also testified the 1% fees were not disclosed to the board. Additionally, both Morgan and Connelly testified that Chenaur knew these 1% side payments had not been disclosed to the board. There was sufficient evidence for the jury to find Morgan and Connelly intentionally deceived Greenwood in order to further their own financial gain.

¶19We find there was sufficient evidence to show an institution protected by 18 U.S.C. § 1006 was defrauded.

¶20II. CONVICTION FOR AIDING AND ABETTING

¶21Chenaur’s second and third issues deal with his conviction as an aider and abettor. He contends that where neither Morgan nor Connelly had the requisite intent to defraud he cannot be guilty as an aider and abettor. Additionally he contends that, where Morgan or Connelly were prosecuted only by state officials for state related offenses of falsifying corporate records and embezzlement, there was no showing of guilt on the § 1006 charge and the jury confused the state and federal charges.

¶22 We have already found there was sufficient evidence of Morgan and Connelly’s intent to defraud. There is no merit to the argument that a defendant cannot be *300guilty of aiding and abetting where the principals were never prosecuted under the federal statute and were given immunity in return for testifying. We clearly stated in Feldstein v. United States, 429 F.2d 1092, 1095 (9th Cir:), cert. denied, 400 U.S. 920, 91 S.Ct. 174, 27 L.Ed.2d 159 (1970), that not only was it unnecessary for the principal to be convicted, but that he need not even be identified. See also United States v. Martinez, 479 F.2d 824, 829 (1st Cir. 1973). The record shows that there was little emphasis on the state convictions of Morgan and Connelly; the jury was clearly informed that they had never been prosecuted on the federal charge. The court's instructions on the first twenty-one counts as a whole related to the federal charge and there is little reason to believe the jury did not make up their own minds about the guilt of the principals on that charge without relying on the state convictions.

¶23Regarding defendant’s own intent, we believe that there was sufficient evidence that he wilfully assisted the principals in the criminal venture. As already noted, he testified at one point that unless he paid Territorial and Morco, Greenwood would not buy his loans. Before he had issued all of the 21 checks involved here, he learned the address he was sending them to was that of Connelly’s home. He knew Morco and Territorial were not providing real brokerage services. Morgan and Connelly were the only two people Chenaur knew to be involved in the two companies, and he knew the two were directing benefiting. He testified before the grand jury that he thought Connelly and Morgan wanted to “get some extra money, that the savings and loan wasn’t paying them enough money to live on. . . .” T. II at 180. This is sufficient to show Chenaur willingly and knowingly aided in the scheme.

¶24III. THE SUFFICIENCY OF THE INDICTMENT AND NEED FOR CONTINUING DISCOVERY AND BILL OF PARTICULARS

¶25Defendant alleges that the indictment, which closely followed the language of 18 U.S.C. § 1006,8 was insufficient to adequately inform him of the nature of the charges against him. He contends that without alleging more specific facts, the transactions may simply have been the result of mistake or poor administration. It was this alleged deficiency in the indictment which defendant also contends necessitated the trial court’s granting a motion for continuing discovery and a Bill of Particulars. Defendant’s counsel complained before the trial that:

I would really like to know what the indictment is saying is a prohibited act, and I don’t know at this time .

¶26and that he wanted to know the manner and means employed in the receiving of the money and why it was a violation against the United States. He urges us to follow *301United States v. Quinn, 365 F.2d 256 (7th Cir. 1966), which found an indictment containing the essential elements of § 1006 insufficient.

¶27The sufficiency of the indictment must be judged in light of Hamling v. United States, 418 U.S. 87, 117-118, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1973):

Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427 [52 S.Ct. 417, 76 L.Ed. 861] (1932); United States v. Debrow, 346 U.S. 374 [74 S.Ct. 113, 98 L.Ed. 92] (1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” United States v. Carll, 105 U.S. 611, 612 [26 L.Ed. 1135] (1882). “Undoubtedly the language of the statute may be used in the general description of the offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” United States v. Hess, 124 U.S. 483, 487 [85 S.Ct. 571, 573, 31 L.Ed. 516] (1888).

¶28We believe the indictment here was sufficient. The indictment clearly charged both Chenaur (as an aider and abettor) and the principals with intent to defraud a savings and loan institution whose accounts were federally insured. It is hard to believe that where the amounts, dates and parties of each illegal transaction were specified, Chenaur needed additionally to be told the “manner and means employed” in the payments in order to defend himself. The initial indictment (later superseded) was returned on January 20, 1976; however, Chenaur had previously been before the grand jury on October 23, 1975, and was specifically asked if certain payments to Territorial and Morco were not kickbacks. Prior to trial, defendant had filed discovery motions and a motion for a Bill of Particulars. However, after meeting with the United States Attorney defense counsel filed a Certificate of Compliance. Subsequently, his motions were struck and defense counsel then contended he had never really received everything he requested. At trial, the government’s attorneys stated they had spent approximately four hours the week before going over the government’s proof with defense counsel and working out a stipulation of the facts. The trial judge had the government attorneys explain how they intended to prove the charges; the explanation substantially answered defense counsel’s questions regarding who was defrauded, who had intent, and what constituted the illegal transaction. At the end, defense counsel still stated “It would be nice if I knew what the government’s position was.” T. II, p. 26, 1. 18 — 19. It was the trial court’s observation that defense counsel knew the government’s position, but simply did not agree with it. We believe the trial court pinpointed the problem here. We have stated that:

A distinction is to be drawn between an indictment which fails to set forth the essential facts necessary to apprise a defendant of the crime charged and one which, though it specifies the necessary facts, fails to specify the theory upon which those facts will be proved at trial or the evidence upon which the proof will rest. Rule 7(c), F.R.Crim.P., provides that an indictment must state the essential facts constituting the offense charged, but may allege that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means.

¶29United States v. Markee, 425 F.2d 1043, 1047-48 (9th Cir.), cert. denied, 400 U.S. 847, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970). Defendant here not only had the necessary facts, but the government’s theory of the case — he simply did not agree with the the*302ory. We conclude that, as the defendant in United States v. Alsop, 479 F.2d 65 (9th Cir. 1973), Chenaur was “well aware” of the charges against him.

¶30The granting of the motion for a Bill of Particulars rests in the sound discretion of the trial court. United States v. Clay, 476 F.2d 1211 (9th Cir. 1973). Since we have already found that the indictment was sufficient, it clearly was not an abuse of discretion to deny the motion for continuing discovery and the Bill of Particulars.

¶31IV. THE SUPERSEDING INDICTMENT

¶32During the course of the 1973 audit of Greenwood by the Federal Home Loan Bank Board, the examiner subpoenaed Chenaur on behalf of the Board and his deposition was taken under oath by the Board’s attorney. Chenaur volunteered the statement that he had never paid any money to Marvel Morgan. This statement formed the basis for Count XXII in both the original and superseding indictment. The original indictment charged Chenaur with perjury under 18 U.S.C. § 1621. The superseding indictment charged Chenaur with concealing a material fact and making a fraudulent statement as to a material fact in a matter within the jurisdiction of the Federal Home Loan Bank Board in violation of 18 U.S.C. § 1001.

¶33Defendant contends that filing this superseding indictment four days before trial prejudiced him. While we agree with his statement that “Due process prohibits trial by surprise,” we fail to see how he was “surprised” when the identical statement served as the basis of both counts. The defendant was fined $5,000 on Count I and given a three-year suspended sentence on all other counts. Having found the evidence was sufficient to sustain the other 21 counts of the indictment, it would be unnecessary for us to even consider any error with respect to Count XXII under the concurrent sentence doctrine. United States v. Miller, 520 F.2d 1208, 1212 (9th Cir. 1975); United States v. Westover, 511 F.2d 1154, 1155 (9th Cir.), cert. denied, 422 U.S. 1009, 95 S.Ct. 2633, 45 L.Ed.2d 673 (1975).

¶34V. THE REQUESTED VOIR DIRE QUESTIONS

¶35The trial court refused to ask five of Chenaur’s requested voir dire questions, and he alleges prejudice. Trial courts are given broad discretion in deciding the scope of the voir dire examination. United States v. Gonzales-Benitez, 537 F.2d 1051, 1053 (9th Cir. 1976); United States v. Golden, 532 F.2d 1244, 1247 (9th Cir. 1976); United States v. Perez-Martinez, 525 F.2d 365, 368 (9th Cir. 1975). We note that four of the five questions dealt with how the jurors felt about the giving of honorariums or gifts in the course of business. Chenaur never classified the payments to Morco and Territorial as gifts or honorariums at any time during the preliminary investigation or trial. While the remaining question, which was aimed at the jurors knowledge and reaction to other current scandals, may have been more relevant, we do not find it was a clear abuse of the trial judge’s discretion not to ask about it.

¶36For all of the foregoing reasons, the judgment of the district court is hereby AFFIRMED.