Constructive Amendment of False Statement Charge Results in Reversal of Conviction
United States v. Hoover, No. 05-30564 (5th Cir. Oct. 10, 2006) (Jolly, Prado, Owen)
In Hoover the Fifth Circuit breaks out the thesaurus and concludes that "complain" and "told" were sufficiently synonymous in the context of a false statement count, thus defeating a sufficiency challenge to the indictment (althought the court implies that the result might have been different had the error been preserved). Hoover nevertheless wins himself a new trial because the district court's jury instructions constructively amended the false statement count (the instructions allowed for a conviction based on a different lie than the one alleged in the indictment). These types of cases tend to be pretty fact-specific, so a detailed summary follows.
Background
Hoover owned a 90% stake in a Ford dealership in Louisiana. The FBI executed a search warrant at the dealership to investigate some alleged financial improprieties. One of the agents executing the warrant spoke to Hoover about his knowledge of "double flooring," which the opinion describes as "an illegal practice whereby a single vehicle is used as collateral for more than one loan." Slip op. at 2. According to the agent, Hoover claimed that only one employee at the dealership had ever discussed the issue of double flooring with him.
The Government subsequently indicted Hoover and several others on charges involving false statements and conspiracy to commit bank fraud. A jury acquitted Hoover on the conspiracy charge, but found him guilty of making a false statement regarding double flooring.
Hoover challenged his conviction on several grounds, only two of which the court addressed: the sufficiency of the false statement count, and the constructive amendment of the indictment.
Sufficiency of False Statement Count
The false statement count alleged that Hoover
Slip op. at 4 (alterations and omissions in original).
Hoover argued that the count failed to allege an offense, for two reasons: 1) "complain" and "told" are not synonymous, so "more than one person could have 'told' him about the double flooring of vehicles at the car dealership without 'complaining' about it[;]" and 2) the count "alleged that the statement was material without adducing any facts or circumstances to establish materiality." Slip op. at 4-5.
Hoover never challenged the sufficiency of the indictment in the district court, so the court of appeals reviewed for plain error. (Hoover did move for a bill of particulars in the district court, as well as for a Rule 34 arrest of judgment, but the court holds that neither of those requested remedies will preserve a challenge to indictment defects.)
The court rejected both of Hoover's arguments regarding the sufficiency of the false statement count. Relying on Roget's Third Millenium Thesaurus, the court observed that "[a]lthough ["complain" and "told"] are not generally thought of as synonyms, they can have the same connotation in certain contexts." Slip op. at 7. The court held that in this context "[t]elling or informing Hoover of . . . an illegal practice [such as double flooring] could readily be characterized as making a complaint, especially where, as here, the subject matter is an improper business practice and the party being told is an owner of the business." Id.
As for Hoover's complaint about the lack of specifics regarding the materiality of the allegedly false statement, the court simply held that as long as all of the elements are there, an indicment need not go into further factual detail.
Interestingly, the court made a point of "not[ing] that this analysis is made under a plain-error standard of review." Slip op. at 8.
Constructive Amendment of False Statement Count
This one's a little tricky, but here goes. Recall that the indictment alleged that Hoover "stated and represented that only one person had complained of 'double flooring' of vehicles . . . when in truth and in fact [Hoover], then and well knew that more than one individual had told him about the 'double flooring' of vehicles . . . ." The district court "instructed the jury that it could convict Hoover if it found that he 'stated that only one person had complained of "double flooring" of vehicles and that such statement was intentionally false.'" Slip op. at 8-9.
Hoover argued the instruction constructively amended the indictment because the indictment required the Government to prove that more than one person complained to Hoover personally about double flooring, whereas the jury instruction allowed the jury to convict Hoover if he was merely aware that more than one person had complained about double flooring, even if he learned of those complaints from just one person.
The court agreed. "[W]hen the government chooses to specifically charge the manner in which the defendant's statement is false, the government should be required to prove that it is untruthful for that reason." Slip op. at 12 (citing Stirone v. United States, 361 U.S. 212, 219 (1960)). "[U]nder the language in the jury instructions, the government only needed to prove that Hoover knew that more than one person had complained about double flooring, not that he knew that more than one person complained to him." Id. at 13-14 (emphasis added). "[B]ecause the indictment charged Hoover with making one false statement, and the jury instructions allowed the jury to convict him for making a different false statement, the trial court constructively amended Hoover's indictment." Id. at 14. The court accordingly vacated Hoover's conviction and remanded for a new trial.
In Hoover the Fifth Circuit breaks out the thesaurus and concludes that "complain" and "told" were sufficiently synonymous in the context of a false statement count, thus defeating a sufficiency challenge to the indictment (althought the court implies that the result might have been different had the error been preserved). Hoover nevertheless wins himself a new trial because the district court's jury instructions constructively amended the false statement count (the instructions allowed for a conviction based on a different lie than the one alleged in the indictment). These types of cases tend to be pretty fact-specific, so a detailed summary follows.
Background
Hoover owned a 90% stake in a Ford dealership in Louisiana. The FBI executed a search warrant at the dealership to investigate some alleged financial improprieties. One of the agents executing the warrant spoke to Hoover about his knowledge of "double flooring," which the opinion describes as "an illegal practice whereby a single vehicle is used as collateral for more than one loan." Slip op. at 2. According to the agent, Hoover claimed that only one employee at the dealership had ever discussed the issue of double flooring with him.
The Government subsequently indicted Hoover and several others on charges involving false statements and conspiracy to commit bank fraud. A jury acquitted Hoover on the conspiracy charge, but found him guilty of making a false statement regarding double flooring.
Hoover challenged his conviction on several grounds, only two of which the court addressed: the sufficiency of the false statement count, and the constructive amendment of the indictment.
Sufficiency of False Statement Count
The false statement count alleged that Hoover
"did knowingly and willfully make fictitious and fraudulent material statements and misrepresentations . . . during the course of an interview being conducted by [Agent Chesser of the FBI]" when Hoover "stated and represented that only one person had complained of 'double flooring' of vehicles . . . when in truth and in fact [Hoover], then and well knew that more than one individual had told him about the 'double flooring' of vehicles . . . ."
Slip op. at 4 (alterations and omissions in original).
Hoover argued that the count failed to allege an offense, for two reasons: 1) "complain" and "told" are not synonymous, so "more than one person could have 'told' him about the double flooring of vehicles at the car dealership without 'complaining' about it[;]" and 2) the count "alleged that the statement was material without adducing any facts or circumstances to establish materiality." Slip op. at 4-5.
Hoover never challenged the sufficiency of the indictment in the district court, so the court of appeals reviewed for plain error. (Hoover did move for a bill of particulars in the district court, as well as for a Rule 34 arrest of judgment, but the court holds that neither of those requested remedies will preserve a challenge to indictment defects.)
The court rejected both of Hoover's arguments regarding the sufficiency of the false statement count. Relying on Roget's Third Millenium Thesaurus, the court observed that "[a]lthough ["complain" and "told"] are not generally thought of as synonyms, they can have the same connotation in certain contexts." Slip op. at 7. The court held that in this context "[t]elling or informing Hoover of . . . an illegal practice [such as double flooring] could readily be characterized as making a complaint, especially where, as here, the subject matter is an improper business practice and the party being told is an owner of the business." Id.
As for Hoover's complaint about the lack of specifics regarding the materiality of the allegedly false statement, the court simply held that as long as all of the elements are there, an indicment need not go into further factual detail.
Interestingly, the court made a point of "not[ing] that this analysis is made under a plain-error standard of review." Slip op. at 8.
Constructive Amendment of False Statement Count
This one's a little tricky, but here goes. Recall that the indictment alleged that Hoover "stated and represented that only one person had complained of 'double flooring' of vehicles . . . when in truth and in fact [Hoover], then and well knew that more than one individual had told him about the 'double flooring' of vehicles . . . ." The district court "instructed the jury that it could convict Hoover if it found that he 'stated that only one person had complained of "double flooring" of vehicles and that such statement was intentionally false.'" Slip op. at 8-9.
Hoover argued the instruction constructively amended the indictment because the indictment required the Government to prove that more than one person complained to Hoover personally about double flooring, whereas the jury instruction allowed the jury to convict Hoover if he was merely aware that more than one person had complained about double flooring, even if he learned of those complaints from just one person.
The court agreed. "[W]hen the government chooses to specifically charge the manner in which the defendant's statement is false, the government should be required to prove that it is untruthful for that reason." Slip op. at 12 (citing Stirone v. United States, 361 U.S. 212, 219 (1960)). "[U]nder the language in the jury instructions, the government only needed to prove that Hoover knew that more than one person had complained about double flooring, not that he knew that more than one person complained to him." Id. at 13-14 (emphasis added). "[B]ecause the indictment charged Hoover with making one false statement, and the jury instructions allowed the jury to convict him for making a different false statement, the trial court constructively amended Hoover's indictment." Id. at 14. The court accordingly vacated Hoover's conviction and remanded for a new trial.
posted by Brad Bogan at 1:05 PM
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