Unpublished Disposition, 930 F.2d 29 (9th Cir. 1991)

MEMORANDUM^** 

Defendant Gregory Cann appeals his conviction under 18 U.S.C. § 1001 of five counts of making false statements in a matter within the jurisdiction of a government agency. He also appeals the district court's order of restitution.

A. To establish a violation of 18 U.S.C. § 1001, the government must show that the false statements were material. Cohen v. United States, 201 F.2d 386, 393 (9th Cir.), cert. denied, 345 U.S. 951 (1953). A statement is material if it has "the propensity to influence agency action." United States v. Vaughn, 797 F.2d 1485, 1490 (9th Cir. 1986) (emphasis added). The evidence showed that defendant's misrepresentations had that propensity. Inflating applicants' incomes would tend to make the V.A. look more favorably on the applications and could prompt V.A. approval of the sales, as the V.A. often approves sales without verifying the applications. RT III at 50-51. Similarly, false statements about whether the applicants will reside in the homes have the propensity to influence V.A. action since it is V.A. policy to give priority to people who will reside in the homes over those who will not. RT II at 19-20, 24-25; RT III at 46.

Defendant asserts that certain misrepresentations were immaterial because the agency could have verified or did verify that the information was false. He claims that other misrepresentations were immaterial because the agency would have awarded the homes to his applicants in any case, as there were no other bidders. Defendant confuses materiality with reliance. It is sufficient that a statement has "the propensity to influence agency action;" whether the agency in fact relied upon it is irrelevant as "actual influence on agency action is not an element of the crime." Vaughn, 797 F.2d at 1490 (emphasis added).

B. The trial court properly admitted evidence that defendant offered a V.A. official $5,000 to overlook alleged improprieties in certain applications. Evidence of the attempted bribe was admissible under any number of theories. The bribe was closely related to the conduct at issue because defendant had a grave interest in preventing further investigation. It suggests consciousness of guilt, People of the Territory of Guam v. Ojeda, 758 F.2d 403, 408 (9th Cir. 1985) (offer to pay damages if charges are dropped shows consciousness of guilt), and knowledge, intent or absence of mistake, United States v. Jackson, 845 F.2d 880, 884 (9th Cir.) (totality of conduct while involved in scheme admissible as going toward defendant's state of mind), cert. denied, 488 U.S. 857 (1988); see Huddleston v. United States, 485 U.S. 681, 685 (1988) (extrinsic bad act evidence may be critical to establishing a disputed issue, such as the actor's state of mind). Nor did the district judge abuse his discretion in holding the evidence was not unduly prejudicial.

C. Defendant also challenges the restitution order. According to defendant, restitution must be limited to the counts of conviction. The government agrees. So do we. Neither the Federal Probation Act, 18 U.S.C. § 3651 (repealed) nor the Victim and Witness Protection Act, 18 U.S.C. § 3579 (now renumbered as section 3663) permits the imposition of restitution beyond the amounts involved in the counts of conviction. Hughey v. United States, 110 S. Ct. 1979 (1990) (VWPA); United States v. Weir, 861 F.2d 542, 546 (9th Cir. 1988) (FPA), cert. denied, 489 U.S. 1089 (1989). The amount of restitution therefore must be reduced to $42,474, the sum involved in the counts of conviction.

D. Defendant also argues that there was insufficient evidence to support the amount of restitution ordered. Defendant did not object to the sufficiency of the evidence at the sentencing hearing; nor did he offer proof that the figures were inflated. Accordingly, defendant has failed to make a record that would support his appeal and has waived his right to challenge the sufficiency of the evidence.

The judgment of conviction is AFFIRMED. The order of restitution is VACATED and REMANDED with instructions to enter a new order in the amount of $42,474.