919 F2d 146 United States v. Payne

919 F.2d 146

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
Robert Forrest PAYNE, Jr. Russell Carl Bottelson, Jr.,

Nos. 90-30099, 90-30100.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1990.
Decided Nov. 28, 1990.

Before SCHROEDER, FLETCHER and FARRIS, Circuit Judges.

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Appellants Robert Payne and Russell Bottelson were employed as residential property appraisers for HUD and FHA. They were convicted of submitting fraudulent statements in appraisal reports and received suspended sentences. Both appellants now challenge their convictions.


Appellants' principal contention is that the district court erred in admitting evidence of property conditions postdating the filing of the fraudulent forms. There is no question that this evidence related to the same property listed in the appraisal reports. Evidence of property conditions gathered four to nine months after the fraudulent statements was relevant to show that the property's value as of that time was not remotely close to what had been certified in the appraisals. The government cannot be required to offer proof of the property conditions as of the very date that the appraisals were made. Moreover, no significant prejudice resulted from the admission of this evidence. Appellants had ample opportunity to argue to the jury that the evidence should be given less weight because of the time that had elapsed between the date of their appraisals and the government's evidence. United States v. Johnson, 637 F.2d 1224, 1247-48 (9th Cir.1980) (allegations of changed condition of evidence go to weight accorded evidence rather than relevance or prejudice).


Payne's challenge to the admission of evidence establishing a business relationship with his co-defendant, Michael Gaudin, is also without merit. The evidence was relevant to cast doubt on Payne's credibility and to establish a motive. There was no abuse of discretion in its admission. Because this evidence was properly admitted at trial, it was not improper or unfair for the prosecutor to refer to the business relationship during his closing argument.


Bottelson also challenges his conviction on the ground that the government failed to prove an essential element of the offense, intent. To make out a violation of 18 U.S.C. Sec. 1001, the government must prove that the defendant made a fraudulent statement with knowledge of its falsity. United States v. Yermian, 468 U.S. 63, 73-74 (1984). Here, the prosecution presented ample evidence, including Bottelson's own admissions, to support the jury's finding that Bottelson knowingly made false statements. There was no insufficiency of evidence.


Finally, Bottelson claims that the prosecutor made an improper reference to Bottelson's failure to testify in his own defense. A single, isolated comment by the prosecutor, which does not stress an inference of guilt from silence as a basis for conviction, does not warrant reversal. Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir.1987). There was no reversible error here.



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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3