Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1989)

MEMORANDUM^* 

Mohammad Reza Banktavakoli appeals his conviction following a jury trial of one count of making a false oath in a bankruptcy proceeding, a violation of 18 U.S.C. § 152, and one count of perjury, a violation of 18 U.S.C. § 1621(1). We affirm.

On January 9, 1989, Banktavakoli and his wife filed for relief under Chapter 7 of the Bankruptcy Code. Banktavakoli prepared the necessary forms, including a "Statement of Financial Affairs for Debtor Not Engaged in Business." Question 12b requires disclosure of any transfer or other disposition of real or personal property during the year immediately preceding the filing of the bankruptcy petition. Although Banktavakoli disclosed no such transfers in the forms he filed, he had in fact transferred the title of two condominiums in December 1988 to his mother, Fakhrosadat Tabatabaee. Based on this misrepresentation, the government charged Banktavakoli with making a false oath in a bankruptcy proceeding.

After Banktavakoli filed his bankruptcy petition, he testified under oath at the meeting of creditors that was held in April 1989. Banktavakoli was asked whether he had owned or had any interest in real property during the preceding five years that he had not yet disclosed, and Banktavakoli replied that he had transferred a house and condominium two and a half years earlier. Banktavakoli neglected to discuss the two condominiums that he had transferred in December 1988, the same misrepresentation that triggered the false oath charge.

At trial, defense counsel filed a motion in limine requesting that the district court exclude certain evidence of bad acts under Federal Rule of Evidence 404(b). The court denied the motion subject to defense counsel's right to make specific objections at trial concerning testimony relating to the creditors' meeting. On appeal, Banktavakoli claims the district court erred by admitting impermissible evidence under Rule 404(b). He also claims there was insufficient evidence to support the jury's perjury conviction.

The district court's evidentiary rulings are reviewed for an abuse of discretion. United States v. Gillespie, 852 F.2d 475, 478-79 (9th Cir. 1988).

Banktavakoli argues that the evidence concerning his ownership of the two undisclosed condominiums and his meetings with his accountant were improperly admitted into evidence. The government contends that Banktavakoli's misrepresentation concerning his transfer of property and his actions relating to the condominiums, coupled with his misstatements about his meetings with his accountant, bear on Banktavakoli's motive and intent and are therefore admissible under Rule 404(b).

Evidence is admissible under Rule 404(b) unless it tends only to prove criminal disposition, United States v. Catabran, 836 F.2d 453, 459 (9th Cir. 1988), and the district court may decide whether to admit such evidence in its discretionary capacity. Id. Banktavakoli does not dispute tranferring the two condominiums only a month before he filed his bankruptcy petition. He does, however, deny any criminal intent because he says, he had always regarded the property as belonging to his mother.

Bankruptcy fraud and perjury both require proof beyond a reasonable doubt that the defendant acted knowingly in making his false oaths. See United States v. O'Donnell, 539 F.2d 1233, 1237 (9th Cir.), cert. denied, 429 U.S. 960 (1976); Manual of Model Criminal Jury Instructions for the Ninth Circuit, Sec. 8.29A (1989 ed.). Because Banktavakoli argues that he did not knowingly commit fraud and perjury, the evidence of intent is important. In noting the difficulty of proving intent, the Supreme Court has stated:

Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.

Huddleston v. United States, 485 U.S. 681 (1988). The district court properly admitted evidence that enabled the jury to infer the necessary element of intent from Banktavakoli's conduct.

Banktavakoli claims he did not disclose the transfer of the condominiums because he never considered them to be his property. Evidence demonstrating that he treated the condominiums as his own after he filed for bankruptcy is relevant in demonstrating whether he had the intent necessary for conviction. The district court did not err by admitting evidence under Rule 404(b) of Banktavakoli's first meeting with his creditors and his continued exercise of dominion and control over the condominiums.

"In reviewing the sufficiency of the evidence, this court must determine 'whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged.' " United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.) (quoting United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986)), cert. denied, --- U.S. ----, 110 S. Ct. 179 (1989).

Banktavakoli argues that there was insufficient evidence to support the perjury conviction. His defense rests on the claim that although the false answers were not responsive to the questions posed, they were literally true because the transfer of the condominiums did not necessarily demonstrate a prior ownership interest in the real property.

Perjury requires the government to prove that Banktavakoli's testimony under oath was false and that he knew it was false. Manual of Model Criminal Jury Instructions for the Ninth Circuit, Sec. 8.29(A) (1989 ed.). Thus, the central issue is "whether the jury could conclude 'beyond a reasonable doubt that the defendant understood the question as did the government and that, so understood, the defendant's answer was false.' " United States v. Cowley, 720 F.2d 1037, 1040 n. 2 (9th Cir. 1983) (quoting United States v. Matthews, 589 F.2d 442, 445 (9th Cir. 1978), cert. denied, 440 U.S. 972 (1979)), cert. denied, 465 U.S. 1029 (1984).

Banktavakoli discusses only one case in support of his defense, Bronston v. United States, 409 U.S. 352 (1973). In Bronston, the Court held that where the defendant's answers--although unresponsive and highly misleading--were literally true, they could not form the basis of a perjury prosecution. Id. at 362. Bronston, however, has no application here because Banktavakoli's answer concerning his ownership or interest in real property was not literally true. It was literally false. As the district court observed in its questioning of Banktavakoli, one cannot transfer property unless he has an interest in it. Banktavakoli does not dispute that he transferred two condominiums to his mother a month before filing for bankruptcy. The deeds showed his ownership and transfer thereof. Banktavakoli's testimony at the first creditors' meeting cannot be reconciled with this transfer. Accordingly, the evidence presented at trial was sufficient to support the perjury conviction.

Because we affirm the judgment, we do not reach the issue of redetermining Banktavakoli's sentence.

AFFIRMED.