Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^* 

William Fowler appeals his conviction and sentence for aiding and abetting the misapplication of bank funds. He argues that certain testimony and exhibits should not have been admitted into evidence, that the prosecutor acted improperly, and that his sentence should not have been enhanced.

We affirm Fowler's conviction.

FACTS

In 1984, a jury convicted William Fowler of six counts of aiding and abetting the misapplication of bank funds in violation of federal law. In 1987, we reversed the conviction and remanded for a new trial. In 1990, a different jury again found Fowler guilty.

The evidence at trial showed that Fowler had knowingly participated in a fraudulent loan scheme with two members of the Executive Loan Committee at Pacific Coast Bank (PCB), Stephen Forde and Jon Schroeder. Fowler acted as a loan broker. He solicited numerous loan applications from unqualified individuals. He falsified their financial information and obtained loans on the condition that the applicants would kick back part of their loan proceeds to Forde and Schroeder. Such a scheme violates federal banking regulations.

JURISDICTION

We have jurisdiction pursuant to 18 U.S.C. § 1291.

DISCUSSION

At trial, the government admitted evidence of five loans that were not part of the indictment against Fowler. The counts relating to the uncharged loans had been dismissed on the government's own motions earlier in the case, some with prejudice and some without prejudice. The trial judge ruled the evidence admissible to show Fowler's knowledge and intent under Fed.R.Evid. 404(b) and instructed the jury accordingly.¹  We review for abuse of discretion. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987).

In United States v. Bailleaux, 685 F.2d 1105, we articulated a test for admitting evidence under Rule 404(b). Fowler asserts that the uncharged loans were not sufficiently similar to the charged loans to meet the Bailleaux test. We hold that because the loans all involved the same participants, similar kickback schemes, and all occurred within close proximity of time, they are similar enough for Rule 404(b) purposes. See United States v. Sarault, 840 F.2d 1479 (9th Cir. 1988).

Fowler also argues that the prejudicial effect of the loan evidence outweighed its probative value, and the trial judge should have excluded it under Fed.R.Evid. 403. Bailleaux, 685 F.2d at 1110. First, we reject Fowler's assertion that the trial judge did not perform the requisite balancing under Rule 403. Both sides argued the issue in their written pretrial motions and at the pretrial hearings. In such circumstances, the trial judge need not rearticulate the Rule 403 test as Fowler would require. United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978).

Second, we find no abuse of discretion in the trial judge's ruling of admissibility under Rule 403. As already stated, the loan evidence is relevant to Fowler's knowledge and intent. Moreover, Rule 404(b) is a rule of inclusion rather than exclusion. United States v. Young, 573 F.2d 1137, 1139-40 (9th Cir. 1978).

Fowler also asserts that admitting the uncharged loans as evidence violates the collateral estoppel component of the Double Jeopardy Clause, since the uncharged loans had been dismissed. We reject this argument under Dowling v. United States, --- U.S. ---, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990) (admitting testimony of a crime for which defendant had been acquitted does not violate Constitutional guarantees against double jeopardy).

Fowler argues that evidence of his financial difficulties should have been excluded under Rule 403. We review for abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989).

It is well-settled in the Ninth Circuit that financial difficulty is relevant to a defendant's motive to participate in a crime which results in financial gain. See, e.g., United States v. Feldman, 788 F.2d 544, 557 (9th Cir. 1986), cert. denied, 479 U.S. 1067, 107 S. Ct. 955, 93 L. Ed. 2d 1003 (1987) (defendant's $8,000 debt relevant to motive for robbing a bank); United States v. Saniti, 604 F.2d 603, 604 (9th Cir.), cert. denied, 444 U.S. 969, 100 S. Ct. 461, 62 L. Ed. 2d 384 (1979) (defendant's $250-a-day drug habit relevant to motive for robbing a bank). We therefore find no abuse of discretion in admitting evidence of Fowler's financial difficulties.

Fowler also argues that the district court erred in admitting evidence of Forde's financial difficulties. In order for the government to prove that defendant Fowler aided and abetted the misapplication of bank funds, it had to show that Forde and Schroeder as principals actually misapplied the funds. United States v. Korab, 893 F.2d 212, 213 (9th Cir. 1989).

As discussed in section II above, Forde's financial difficulties are relative to his motive for committing the crime, and therefore relevant. Feldman, 788 F.2d at 557; Saniti, 604 F.2d at 604. We again find no abuse of discretion.

TRW credit reports are relevant "to show what information was available to [defendant] at the time he approved the loans, and to illustrate his reckless disregard for the bank's interests by failing to act in response to the information disclosed by the reports." United States v. Castro, 887 F.2d 988, 1000 (9th Cir. 1989). In this case, the district judge admitted TRW reports into evidence even though they were dated after the date the loans were funded.

The post-crime date does not undermine the TRW reports' relevance in this case. The failure to obtain the reports at all before the loans were funded illustrates Fowler's reckless disregard by failng to follow standard loan procedures. We find no abuse of discretion in admitting the TRW reports into evidence.

During closing argument, the prosecutor referred to Fowler as a liar and to his statements as lies. Because Fowler did not object at trial, we reverse only for plain error. United States v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986), cert. denied, 481 U.S. 1030, 107 S. Ct. 1958, 95 L. Ed. 2d 530 (1987).

Plain error results only if the jury was likely to be improperly influenced by the prosecutor's remarks. United States v. Laurins, 857 F.2d 529 (9th Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 3215, 106 L. Ed. 2d 565 (1989). Here, ample evidence supported the prosecutor's inference that Fowler had lied, and the prosecutor did not indicate that she was basing her comments on outside evidence. Thus, no plain error resulted.

Fowler handed a love note to one of the government's witnesses when the district court recessed during the witness' testimony. Evidence that a defendant is trying to influence or suppress a witness' testimony is admissible to show a defendant's consciousness of guilt. Territory of Guam v. Ojeda, 758 F.2d 403, 408 (9th Cir. 1985). The district court did not abuse its discretion by admitting the love note into evidence.

At trial, the prosecutor cross-examined character witnesses for the defendant, asking them if they knew defendant had lied on his real estate broker's license renewal application. Defendant's counsel did not object to the cross-examination, presumably conceding that the inquiry complied with Fed.R.Evid. 405 and 608(b). Later, defendant moved for a mistrial on the ground of improper cross-examination, and the district judge denied the motion.

"A ruling on the admissibility of evidence, absent a timely objection, will not result in a mistrial unless the alleged error 'seriously affects the fairness, integrity or public reputation of judicial proceedings' (citation omitted)." United States v. Segal, 852 F.2d 1152, 1156 (9th Cir. 1988) (quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1 (1985). In this case, the prosecutor's characterization of defendant's statement on the application as a lie was a reasonable interpretation. The motion for mistrial was properly denied.

After his first conviction, defendant Fowler was sentenced to five years. On retrial, the district court sentenced him to six and a half years based on the judge's belief that Fowler had tried to intimidate a witness and had committed perjury.

The Supreme Court has held that perjury is a proper factor to consider in enhancing a sentence. United States v. Grayson, 438 U.S. 41, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978). Moreover, Fowler's claim that enhancing his sentence infringes his constitutional right to testify on his own behalf is without merit. That right does not encompass the right to testify untruthfully. Id. at 54, 98 S. Ct. at 2617; United States v. Barbosa, 906 F.2d 1366, 1367-68 (9th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 394, 112 L. Ed. 2d 403 (1990).

The sentencing judge also may consider any other "objective information concerning identifiable conduct ... after the time of the original sentencing proceeding," such as witness tampering. North Carolina v. Pearce, 395 U.S. 711, 726, 89 S. Ct. at 2072, 2081, 23 L. Ed. 2d 656 (1969), overruled on other grounds, United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982). Therefore, the sentence enhancement was proper.

CONCLUSION

The judgment of the district court is AFFIRMED.