Unpublished Disposition, 867 F.2d 614 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Helmut GAENSEL, Defendant-Appellant.

No. 88-3113.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 1989.Decided Jan. 30, 1989.

Before EUGENE A. WRIGHT, TANG and WIGGINS, Circuit Judges.


MEMORANDUM* 

We affirm the conviction of Helmut Gaensel for violation of 18 U.S.C. § 1014, making a false statement for purposes of obtaining a loan. We adopt the reasoning of the district court in Judge Lovell's Memorandum and Order of November 24, 1987, and Memorandum and Order of February 2, 1988.

I. Alleged Errors Relating to the Indictment

We conclude that the district court did not err in ruling that the indictment stated an offense under the statute. There was no error in the denial of Gaensel's motion to discover the grand jury transcript.

Gaensel argues that the government must characterize and prove that a false statement relating to an inflated price or value is a willful overvaluation. That argument was rejected in United States v. Thibadeau, 671 F.2d 75, 79 (2d Cir. 1982). We adopt the reasoning therein. There is no merit to the claim that the indictment was duplicitous because it joined knowing false statements with willful overvaluations. See id. at 79.

Gaensel charges the government with excessive preindictment delay and with the failure to preserve for trial the gems pledged to the Missoula Bank of Montana as collateral for a loan of $255,000. He had represented to the bank that the gems had a value of $700,000 and certified that amount in writing. The crime was committed on June 29, 1982. The indictment was returned in June 1987, almost five years after he made the false statement to the bank. Before that date, the bank had obtained a civil forfeiture of Gaensel's rights to the gems, bought them at the Marshal's sale and sold them to mitigate its loss on the loan.

In denying Gaensel's motion for dismissal for preindictment delay or, alternatively, for an order suppressing evidence of the gems' value, Judge Lovell noted that the delay was due to investigation and not to gain a tactical advantage. Investigation continued to April 10, 1987 and the prosecutor explained that witness interviews taken then were essential to his decision to prosecute. The ongoing investigation provides a legitimate reason for the delay. United States v. Lovasco, 431 U.S. 783, 796 (1977); United States v. Tornabene, 687 F.2d 312, 317 (9th Cir. 1982). Gaensel made no persuasive showing of actual, non-speculative prejudice. See United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985), cert. denied, 474 U.S. 1102 (1986). Dismissal for preindictment delay was properly denied.

It was also proper to deny the motion to suppress. Gaensel failed to show convincingly that the gems would have exculpated him. See California v. Trombetta, 467 U.S. 479, 489 (1984). Their sale was not due to the bad faith of the government. See Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988) (holding that the government's failure to preserve potentially useful evidence did not deny defendant his due process unless he could show bad faith).

We reject summarily the contention that Sec. 1014 is vague, overbroad, and unconstitutional.

There was no abuse of discretion in excluding Gaensel's proffered expert testimony with reference to the government's failure to establish a reliable chain of custody of the gems. Judge Lovell ruled correctly that the witness was not qualified to express that opinion and that the testimony would have been irrelevant and confusing to the jury.

We also reject the contention that the court erred in refusing to give Gaensel's proposed jury instructions on materiality and chain of custody.

The evidence was sufficient to support a guilty verdict, as Judge Lovell found in his Memorandum and Order of February 2, 1988.

Finally, Gaensel asserts that there was error in giving two Allen charges after the cause was submitted to the jury. Judge Lovell gave supplemental instructions with the assistance of counsel, but they were neither coercive nor remotely like any Allen charge that this court has held to be error.

AFFIRMED. The mandate will issue now.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3