Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM^** 

Victor Bagha and John R. Marsella were tried jointly before a jury for numerous counts of conspiracy, making false statements on bank loan applications, aiding and abetting the same, and attempted bank fraud. Each was convicted of some of the counts charged. Their separate appeals were consolidated. All of the appellants' contentions lack merit; we affirm.

I. Conspiracy to Make False Statements to Mitsui Manufacturers Bank

Bagha and Marsella were convicted of conspiring to knowingly make false statements to Mitsui Manufacturers Bank for the purpose of influencing the bank on loan applications in violation of 18 U.S.C. §§ 1014 and 371. Bagha's and Marsella's contention that the evidence was insufficient to sustain their convictions lacks merit.

Evidence is sufficient to support a conviction if, viewing the evidence and the inferences to be drawn from it in the light most favorable to the government, it is found that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Love, 746 F.2d 477, 479 (9th Cir. 1984).

The jury had before it evidence Bagha manufactured and leased limousines and evidence Marsella, in association with Bagha, solicited prospective buyers for the limousines and prepared and submitted to Mitsui on behalf of the buyers loan applications that included financial statements and federal income tax returns with inflated figures concerning the applicants' assets and income. The loan applicants testified that either Bagha or Marsella promised each of them he would obtain bank loans for them, purchase a limousine with the loan proceeds, and that Bagha's business would lease the limousines from them. Accordingly, the jury could have concluded beyond a reasonable doubt that Bagha and Marsella conspired to make false statements in violation of 18 U.S.C. § 1014.

Bagha contends the evidence was insufficient to support his conviction of violating 18 U.S.C. §§ 1014 and 2(b) by submitting to Mitsui false financial statements and/or federal income tax returns on behalf of Anna Accosta (Count 3), Keith Rathbone (Count 5), Joseph Mezzeo (Count 7), Patricia Urban (Count 8), John Conti (Count 9), Elias Finney (Count 10), Peter Faino (Count 11), Benjamin Kleine (Count 12), Robin Cassingham (Count 13), Myra Auerbach (Count 14), Vincent Arrigo (Count 15), Iraj Hooshmand (Count 16), and James Genette (Count 17). Marsella contends the evidence was insufficient to support his conviction of aiding and abetting Bagha's violation of 18 U.S.C. §§ 1014 and 2(a) in the cases of loan applicants Anthony and Sheila Gambardella (Count 2), Patricia Urban (Count 8), John Conti (Count 9), Elias Finney (Count 10), Peter Faino (Count 11), Robin Cassingham (Count 13), Myra Auerbach (Count 14), and James Genette (Count 17).

The appellants' contentions lack merit. The jury heard testimony by each loan applicant involved in the above-enumerated counts and could have concluded beyond a reasonable doubt that Bagha and Marsella committed each offense of which they were convicted.

Bagha contends there was insufficient evidence to support his conviction of submitting to Mitsui false federal income tax returns in violation of 18 U.S.C. §§ 1014 and 2(b) (Count 18). His contention lacks merit. Bagha's accountant testified the tax returns were false, and the jury could have concluded beyond a reasonable doubt that Bagha submitted them to Mitsui.

III. Bagha's False Statements to Unified Savings Bank

Bagha contends the evidence was insufficient to support his convictions of forging signatures of loan applicants on commercial notes made to Unified Savings Bank in violation of 18 U.S.C. §§ 1014 and 2(b). Bagha's contention lacks merit. The jury heard testimony by each person whose signature was forged and could have concluded beyond a reasonable doubt that Bagha committed the forgeries.

Bagha contends the evidence was insufficient to support his conviction of submitting to Unified false tax returns for himself in violation of 18 U.S.C. §§ 1014 and 2(b) (Count 30). However, Bagha's accountant testified the returns were false, and the jury could have concluded beyond a reasonable doubt that Bagha submitted them to Unified.

IV. Bagha's Attempt to Defraud Crocker National Bank

Bagha's contention that the evidence was insufficient to support his conviction of attempting to defraud Crocker National Savings Bank in violation of 18 U.S.C. § 1344(a) lacks merit. The evidence showed Bagha met with officers from Crocker and implied to them they could receive graft in exchange for approving loan applications. The jury could have concluded beyond a reasonable doubt that Bagha violated 18 U.S.C. § 1344(a).

V. Bagha's Other Challenges to his Convictions

Bagha contends there is no evidence he submitted false documents with the purpose of influencing Mitsui or Unified and no evidence the banks were actually influenced. However, the evidence shows Bagha submitted financial statements and tax returns with inflated figures regarding the assets and income of various loan applicants, including himself, and that he forged the signatures of loan applicants on promissory notes. The applicants testified before the jury that they were not financially qualified to receive the loans Bagha obtained on their behalf. The jury could have concluded beyond a reasonable doubt that Bagha falsified the statements for the purpose of influencing the banks. Moreover, 18 U.S.C. § 1014 does not require that banks actually rely on false statements. United States v. Kennedy, 564 F.2d 1329, 1340-41 (9th Cir. 1977), cert. denied, 435 U.S. 944 (1978).

Count 32, dismissed after the jury failed to agree on a verdict, charged Bagha with attempting to defraud a bank in violation of 18 U.S.C. § 1344 by offering a bribe to a loan officer. Bagha contends that the district court erred in denying his motion to dismiss the count on the basis of legal impossibility and thus argues that evidence admitted on Count 32 prejudiced him on the other counts. However, Bagha's offering of a bribe to an FBI agent he believed to be a bank officer would constitute a crime under section 1344 had the circumstances been as he believed them to be. Therefore, the district court did not err in denying Bagha's motion to dismiss Count 32. Since Bagha could have been convicted of Count 32, there was no prejudice.

Bagha contends his trial should have been severed from Marsella's. We review denial of severance for abuse of discretion and manifest prejudice. United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987). Joinder of Bagha and Marsella for trial was proper because all the offenses charged arose out of the same series of transactions, and because all their defenses were consistent. See Id.

Bagha contends he received ineffective assistance of counsel. A claim of ineffective assistance of counsel is reviewed for deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690-92 (1984). Both of those elements require factual findings in order to evaluate the claim where, as here, the alleged ineffectiveness is not apparent from the record. Because this court has no fact finding function, Bagha must file a motion under 28 U.S.C. § 2255 in the district court; he cannot raise a claim of ineffective assistance of counsel by direct appeal.

Bagha contends the district court erred in failing to explain its imposition of consecutive sentences. However, the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473 Sec. 211, 18 U.S.C. § 3553(c), which requires the sentencing court to give reasons for the sentence imposed, was not effective as of the date Bagha's judgment and commitment order was entered. Bagha's sentence of two five-year terms and four two-year terms was within the statutory limits. Given the magnitude of Bagha's offenses, it does not appear to us that there was an abuse of discretion in imposing the sentences nor in ordering them to run consecutively. Bagha also contends that the district court abused its discretion in imposing a sentence rendering him eligible for parole only after he serves six years in prison. We do not read Bagha's sentence as he does. We read it to mean that he is eligible for parole after serving one-third of his five year sentence on Count I. We do not find an abuse of discretion in requiring that on one of the five-year terms the defendant be eligible for parole pursuant to Title 18 U.S.C. 4205(a), which would require the defendant to serve one-third of that term before he becomes eligible for parole.

The district court is AFFIRMED.