Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

Nos. 89-10023, 89-10054.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS and KOZINSKI, Circuit Judges, and JUSTIN L. QUACKENBUSH^*, District Judge.

MEMORANDUM^** 

Jeffrey Townsend appeals his conviction and sentence after a jury found him guilty of federal bank robbery and he pleaded guilty to making false statements to the government. Townsend contends that the district court lacked jurisdiction to convict him of making false statements, that his trial counsel provided ineffective assistance, and that there is insufficient evidence to convict on the robbery charge. Townsend also claims that the district court erred in ordering him to make restitution. We affirm.

BACKGROUND

On February 8, 1988, two men robbed the First Western Savings Association in Las Vegas, Nevada. Witnesses and surveillance camera photographs revealed that one robber, a white man, approached a teller with a note stating "please give me your cash." The other robber, a black man wearing a red and white jogging suit, stood behind him in line. The teller gave the white man $1081 and the men left the bank together.

An anonymous tip led the police to arrest Townsend and Gene Allen Freed at a Las Vegas motel. The police found a red and white jogging suit in the room with Townsend. After he was arrested, Townsend was interviewed by a Pretrial Services Officer (PSO). Townsend told the PSO that he had not used cocaine in the last four years. He denied having any criminal record and claimed to have been recently employed by Western Linen. Townsend also claimed that he resided at 2150 N. 21st Street. The PSO then prepared a report and recommendation on whether Townsend should be detained until trial. At the time the report was prepared, the police had not yet received the results of Townsend's FBI and NCIC record checks.

On February 22, 1988, Townsend appeared before a federal magistrate. The government argued that it had evidence that Townsend had lied to the PSO regarding his cocaine use. At defense counsel's request, the hearing was continued until February 26. At that hearing, the government presented evidence of Townsend's recent cocaine use. The court expressed its concern about the reliability of a defendant who would lie to his PSO. The government also informed the court that Townsend had a criminal record in New York state. The court ordered Townsend detained. The government, however, subsequently learned that its information regarding Townsend's New York record was erroneous and moved the court to reconsider the case. At a hearing on March 8, 1988, the court addressed Townsend regarding his risk of flight. Townsend described his job at Western Linen in great detail, insisted that he lived at N. 21st Street, and denied that he had ever been arrested or charged with a crime. The hearing was continued until March 14.

At the March 14 hearing, the government presented the results of the FBI fingerprint check. It revealed that Townsend had been arrested and convicted numerous times under a variety of aliases. Townsend admitted that he had lied to the court about his employment and residence, but insisted that he had never been arrested under any other name.

A federal grand jury indicted Townsend and Freed on one count of bank robbery in violation of 18 U.S.C. § 2113(a) (Supp. V 1987) and one count of aiding and abetting in violation of 18 U.S.C. § 2 (1982). Townsend pleaded not guilty. Freed had also been charged with a second bank robbery. He pleaded guilty to both robberies and agreed to testify against Townsend. The jury found Townsend guilty of bank robbery. On April 20, 1988, a federal grand jury indicted Townsend on two counts of making false statements to the government in violation of 18 U.S.C. § 1001 (1982), and one count of obstruction of justice in violation of 18 U.S.C. § 1503 (1982), stemming from his statements to the PSO and the court regarding his employment history, residence, and criminal record. Townsend initially pleaded not guilty, but subsequently entered a guilty plea to the two counts of false statements. The obstruction charge was dismissed. On January 4, 1989, Townsend was sentenced on both the robbery and false statement convictions.¹  Townsend timely appealed. We have jurisdiction under 28 U.S.C. § 1291 (1982).

DISCUSSION

Townsend contends that he cannot be convicted for making false statements to the government because his statements fall within the "exculpatory no" exception to section 1001. Section 1001 prohibits knowingly and willfully making a false statement that is material to any matter within the jurisdiction of a federal government department or agency. 18 U.S.C. § 1001. The "exculpatory no" doctrine provides that if certain requirements are met, a person may not be prosecuted under section 1001 for making a false exculpatory statement to government investigators. See United States v. Equihua-Juarez, 851 F.2d 1222, 1224 (9th Cir. 1988).

The government argues that Townsend is barred from raising this defense because he pleaded guilty to the offenses.² 

[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.

United States v. Broce, 109 S. Ct. 757, 762 (1989). There is, however, a recognized exception to the rule barring collateral attack on a guilty plea. "Claims that 'the applicable statute is unconstitutional or that the indictment fails to state an offense' are jurisdictional claims not waived by the guilty plea." United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989) (quoting United States v. Broncheau, 597 F.2d 1260, 1262 n. 1 (9th Cir.), cert. denied, 444 U.S. 859 (1979)). The Supreme Court recently limited this doctrine "to cases in which the judge could determine at the time of accepting the plea, from the face of the indictment or from the record, that the government lacked the power to bring the indictment." Montilla, 870 F.2d at 552 (citing Broce, 109 S. Ct. at 765).

To obtain review of his claim, Townsend must show that the indictment, on its face, fails to state an offense under section 1001 and therefore the district court lacked jurisdiction. The "exculpatory no" exception applies only if all of the following requirements are met:

(1) the false statement must be unrelated to a claim to a privilege or a claim against the government;

(2) the declarant must be responding to inquiries initiated by a federal agency or department;

(3) the false statement must not impair the basic functions entrusted by law to the agency;

(4) the government's inquiries must not constitute a routine exercise of administrative responsibility; and

(5) a truthful answer would have incriminated the declarant.

Equihua-Juarez, 851 F.2d at 1224; see also United States v. Olsowy, 836 F.2d 439, 441 (9th Cir.), cert. denied, 108 S. Ct. 1299 (1988).

We find that the indictment on its face does not clearly show that the government lacked the power to bring the charge. Townsend's false statements related to his attempt to obtain pretrial release. By denying any prior criminal record and claiming to have a job and residence, Townsend may have hoped to improve his chances of being released. Therefore Townsend may not satisfy the first requirement. Furthermore, truthful statements regarding his employment and residence would not have incriminated Townsend and therefore he does not satisfy the fifth requirement.

Townsend further contends that section 1001 is not applicable to false statements made during a judicial proceeding. He relies on a Fifth Circuit case holding that section 1001 is inapplicable to false statements made at a bail proceeding. See United States v. Abrahams, 604 F.2d 386, 395 (5th Cir. 1979). This circuit, however, has squarely held that " [s]ection 1001 applies to matters before the judiciary" so long as the judicial proceeding can be characterized as administrative rather than adjudicative. United States v. Plascenia-Orozco, 768 F.2d 1074, 1076 (9th Cir. 1985). In Plascenia-Orozco, this court affirmed a section 1001 conviction against a defendant who gave a false name to a magistrate at his arraignment on unrelated charges in order to conceal his prior criminal record. "A reasonable construction of section 1001 prevents Appellant from claiming that his action was a trial tactic in order to implicate the 'judicial' functions of the magistrate. No trial strategy would justify the misrepresentation of the identity of the defendant." Id. Plascenia-Orozco forecloses Townsend's claim that he cannot be convicted under section 001 for making false statements at his detention hearing.

Townsend indirectly alleges that there is insufficient evidence to convict him on the robbery charge.³  Townsend was convicted of bank robbery under 18 U.S.C. § 2113(a) (Supp. V 1987). An element of bank robbery distinguishing it from bank larceny is the requirement that force or intimidation be used to obtain the property or money. Compare id. Sec. 2113(a) with id. Sec. 2113(b) (1982); see also United States v. Slater, 692 F.2d 107, 109 (10th Cir. 1982) (only relevant distinction between the two crimes is the question of intimidation). Townsend, however, failed to raise this issue below and we will not consider it for the first time on appeal. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).

As part of the sentence for his robbery conviction, Townsend was ordered to pay restitution in the amount of $540.50, half of the total amount taken from the bank. Although the district court did not specify under which statute restitution was ordered, presumably it was ordered under the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3579, 3580 (1982). Restitution under the VWPA can be ordered as part of a sentence or as a condition of probation. Id. Sec. 3579(a) (1). Townsend challenges his restitution order, arguing that the bank will receive excess compensation because his codefendant was ordered to make full restitution as part of his sentence. Townsend himself has not been ordered to pay more than $1081 in restitution and therefore he has no complaint.

CONCLUSION

The judgment of the district court is AFFIRMED.