Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

MEMORANDUM^** 

Dominick Frank Mancuso a/k/a Chipper Mancuso appeals his conviction for concealing material facts in connection with a loan guarantee undertaken by the Small Business Administration (SBA). Mancuso contends that the district court erroneously failed to dismiss one count of the indictment as barred by the statute of limitations. He further contends that the district court improperly denied his motion for mistrial on the grounds that the jury was prejudiced by hearing evidence on several counts that were ultimately dismissed, and because of prosecutorial misconduct. We affirm.

Count XVI of the Indictment dated December 4, 1985 charged Mancuso with concealing material facts¹  in an application for an SBA loan guarantee in violation of 18 U.S.C. § 1001 (1982). Section 1001 states:

Whoever ... knowingly and willfully falsifies, conceals or covers up by any trick, scheme or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

The applicable statute of limitations provides that a charge under section 1001 must be brought within five years after the offense has been committed. 18 U.S.C. § 3282 (1982). Mancuso argues that the statute of limitations commenced when he submitted the final loan guarantee application to the SBA on July 31, 1980 or, alternatively, when the SBA decided to approve the loan guarantee application on November 6, 1980. See United States v. Smith, 740 F.2d 734, 736-37 (9th Cir. 1984) (the offense of submitting false statements to the government in violation of 18 U.S.C. § 1001 is completed when the false statements are submitted).

Unlike the underlying charges in the cases cited by Mancuso,²  however, Count XVI charged Mancuso with knowingly and willfully concealing material facts from the government under a different clause of section 1001. "It is well established that this section [Section 1001] encompasses two distinct offenses, false representation and concealment of a material fact." United States v. Tobon-Builes, 706 F.2d 1092, 1096 (11th Cir. 1983); see also United States v. Ford, 797 F.2d 1329, 1334 (5th Cir. 1986), modified, 824 F.2d 1430 (5th Cir. 1987) (en banc), cert. denied, 108 S. Ct. 741 (1988). Mancuso mistakenly argues that under either provision of section 1001, limitations begin to run when an individual obligated to provide certain information to a government agency presents falsified material facts. To the contrary, where a scheme to conceal material facts is charged under Sec. 1001, the statute of limitations does not begin to run until the object of the scheme has been achieved: " [T]he conduct of the defendant which constituted the scheme did not terminate until the scheme itself ended." Bramblett v. United States, 231 F.2d 489, 491-92 (D.C. Cir.) (where defendant falsified material facts about an employee's status and concealed that falsification so that the employee could obtain benefits over time, statute of limitations began to run only when scheme ended, not when false statements were initially made), cert. denied, 350 U.S. 1015 (1956), cited with approval in United States v. Walker, 653 F.2d 1343, 1347 (9th Cir. 1981), cert. denied, 455 U.S. 908 (1982).

Mancuso concedes that he failed to provide all of the required information in his SBA loan guarantee application submitted on July 31, 1980. At trial, the evidence demonstrated that Marcuso permitted those misrepresentations to remain on file in order to ensure the execution of the SBA guaranteed loan on December 5, 1980. Mancuso concealed the material facts because the SBA may well have declined to guarantee the loan had those facts been made known to the SBA. The fact that Mancuso did not receive funds directly from the SBA is beside the point, because the lender would not have executed the loan absent the SBA guarantee. We conclude that the statute of limitations began to run on December 5, 1980, the date on which Mancuso's scheme of concealing material facts from a government agency was completed as a result of the execution of the SBA guaranteed loan. The district court did not err in declining to dismiss Count XVI as barred by the statute of limitations.

Mancuso next contends that the district court erred in denying his motion for mistrial or, in the alternative, his motion for new trial. Mancuso argues that after granting a judgment of acquittal on Counts I through XIV, the district court should have granted a mistrial since evidence relating to the dismissed conspiracy counts potentially prejudiced the jury in considering Counts XVI and XVII. Unlike the extraneous evidence in the cases relied upon by Mancuso,³  however, the government's proof on the dismissed conspiracy counts was relevant to the concealment charges under section 1001:

The mere omission of failing truthfully to disclose a material fact ... does not make out an offense under the conceal or cover up clause of Sec. 1001. Instead, the latter clause of Sec. 1001 requires the government to prove something more--that the material fact was affirmatively concealed by ruse or artifice, by scheme or device.

United States v. Ford, 797 F.2d at 1334, quoting, United States v. London, 550 F.2d 206, 214 (5th Cir. 1977) (footnote omitted) (emphasis supplied). We do not agree that the evidence relating to the dismissed conspiracy charges was so prejudicial as to warrant a new trial. See United States v. Bagley, 641 F.2d 1235, 1240 (9th Cir.) (evidence on dismissed counts portraying defendant in unsympathetic manner but relating to element of charge before the jury did not warrant mistrial), cert. denied, 454 U.S. 942 (1981). Nor did the absence of a limiting instruction on co-conspirator's hearsay testimony so materially affect the verdict as to constitute plain error. See United States v. Hamilton, 792 F.2d 837, 840 (9th Cir. 1986).

Mancuso finally contends that the district court erroneously declined to grant a mistrial, dismissal or a new trial on the basis of prosecutorial misconduct in the grand jury and trial proceedings. To prove prosecutorial misconduct, a defendant must establish (1) the existence of prosecutorial misconduct; (2) that the issue was preserved for appeal; and (3) that the defendant was prejudiced by the misconduct. United States v. Cristophe, 833 F.2d 1296, 1301 (9th Cir. 1987). Prosecutorial misconduct warrants reversal only if it is more probable than not that the misconduct materially affected the verdict. United States v. Flake, 746 F.2d 535, 541 (9th Cir. 1984), cert. denied, 469 U.S. 1225 (1985).

Mancuso's claims that prosecutorial misconduct prejudiced the grand jury charging process⁴  are rendered moot by the petit jury's guilty verdict. United States v. Mechanik, 475 U.S. 66 (1986); see also United States v. Benjamin, 812 F.2d 548, 553 (9th Cir. 1987). Although the prosecutor's pre-trial statements with respect to the tape recordings between an informant and Mancuso's co-defendant may well have constituted misconduct, the fact that the defense did not introduce either tapes or transcripts of any recordings at trial demonstrate that Mancuso was not prejudiced by the alleged misconduct. Cristophe, 833 F.2d at 1296.

Mancuso also asserts various instances of prosecutorial misconduct at trial.⁵  Although a government witness voluntarily referred to threats made by Mancuso in violation of a pre-trial motion in limine, the district court promptly instructed the jury to disregard the witness' answer as unresponsive. Similarly, any prejudice resulting from John Walters' testimony that "he didn't like the people that Mancuso was hanging around with" was cured by the district court's subsequent jury instruction to disregard testimony concerning the termination of business relations between Walters and Mancuso. The prosecutor's follow-up statement after the court sustained Mancuso's objection to Walters' testimony did not evidence a prosecutorial attempt to prove defendant's guilt by associating him with unsavory characters. See United States v. Dickens, 775 F.2d 1056 (9th Cir. 1985).

In closing argument the prosecutor stated: "I'm not going to stand up here and try to convince twelve citizens of a crime that's going on in some corporate office if I'm not convinced." We have held that a prosecutor commits misconduct if he expresses his personal opinion of the defendant's guilt or his belief in the credibility of witnesses. See, e.g., United States v. Potter, 616 F.2d 384, 392 (9th Cir. 1979), cert. denied, 449 U.S. 832 (1980). The prosecutor's remark appears to cross that line. Some explanation for the prosecutor's statement may be found in defense counsel's arguments, which attacked the government's motive in bringing the case and the prosecutor's integrity in trying it. Otherwise inappropriate prosecutorial remarks may not be grounds for mistrial where the argument is an "invited response" to defense counsel's charges. United States v. Wallace, No. 86-3146, slip op. at 6089 (9th Cir. May 26, 1988); see also United States v. Tham, 665 F.2d 855, 862 (9th Cir. 1981), cert. denied, 456 U.S. 944 (1982). In addition, the district court neutralized any prejudicial impact of the prosecutor's remarks by immediately instructing the jury that the remarks of counsel were not evidence. United States v. Berry, 627 F.2d 193, 200 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981). That instruction was repeated at the conclusion of the court's final charge to the jury. See United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985).

In sum, we cannot conclude that the prosecutor's conduct materially affected the fairness of the trial. United States v. Young, 470 U.S. 1, 13 n. 10 (1985). Nor do we find that any cumulative prejudicial impact of the prosecutor's conduct at trial warrants reversal. United States v. Berry, 627 F.2d at 200-201

AFFIRMED.