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Friday, December 1, 2006
In a published opinion, a unanimous panel of the
United States Fifth Circuit — comprised of Judges Jolly, Prado, and Owen —
reversed the criminal conviction of a Liskow & Lewis client. United States v. An Individual 467 F.3d 496
(5th Cir. 2006). On July 17, 2002, FBI agents executed a search warrant at Ruston Ford, a
dealership in which a family investment group that included the defendant owned a
ninety-percent interest. After learning of the search, the defendant drove to the
dealership to speak with the lead agent. The agent testified that he addressed
“double floorplanning” — an illegal practice whereby a single vehicle is used
as collateral for more than one loan — during the interview, and the defendant said
that a fired employee had raised double floorplanning to him as an issue of the business.
The government charged the defendant and three
others in an eight-count indictment. The defendant was charged with conspiracy to
commit bank fraud and with making two false statements to a federal agent. The
indictment alleged that the defendant made two false statements to the special
agent to cover up the conspiracy, one of which related to double floorplanning
and the other to an ownership interest in another dealership.
The jury acquitted the defendant of the conspiracy charge and the false statement
relating to ownership but found him guilty of making a false statement about
double floorplanning.
Hired for the appeal, Liskow & Lewis
attorneys Shaun Clarke, Shannon Holtzman, and Jason Johanson briefed the case.
The Liskow & Lewis team attacked, inter alia: (1) the sufficiency of
the indictment; (2) the district court’s jury instructions as an
unconstitutional constructive amendment of the indictment; (3) the sufficiency
of the evidence underlying his conviction; (4) the district court’s denial of
the defendant’s motion for severance; and (5) the district court’s decision to split
the false statement count into two counts.
The panel first addressed the sufficiency
argument. The false statement count
alleged, inter alia, that the defendant “did knowingly and willfully make
fictitious and fraudulent material statements and representations . . .” when
the defendant “stated and represented that only one person had complained of
‘double flooring’ of vehicles . . . when in truth and in fact
[the defendant], then and well knew that more than one individual had told him
about the ‘double flooring’ of vehicles . . . .” The Liskow team
argued that the indictment failed to allege a false statement because more than
one person could have “told” the defendant about the double floorplanning of
vehicles at the car dealership without having “complained” about it. Applying the
plain error standard of review, the panel ultimately held that the indictment
was sufficient.
The panel next addressed the argument that the
district court’s jury instruction constructively amended the indictment. The
district judge had instructed the jury that it could convict the defendant if it
found that he “stated that only one person had complained of ‘double flooring’
of vehicles and that such statement was intentionally false,” even though the
indictment alleged that the defendant knew his statement to be false because
more than one person had told him about double floorplanning. The Liskow team
argued that the court’s jury instruction allowed the government to obtain a
conviction if it proved the defendant knew his statement was false, even if he knew it
for some reason other than that alleged in the indictment.
Relying on Stirone v. United States, 361
U.S. 212 (1960), and United States v. Crocker, 568 F.2d 1049 (3d Cir.
1977), the panel held that when the government chooses to specifically charge
the manner in which the defendant’s statement is false, the government is
required to prove that it is untruthful for that reason. The panel recognized
that the district court’s broad jury instruction allowed the government to
sustain a conviction if it showed that the defendant knew that his statement was
false for any reason, rather than being limited to the reason alleged by
the grand jury in the indictment. Even more importantly, under the language in
the jury instruction, the panel recognized that the government only needed to
prove that the defendant knew that more than one person had complained about double
flooring, not that he knew that more than one person complained to him. The
panel thus reversed and remanded for further proceedings not inconsistent with
the opinion.
For more information, please contact Shaun Clarke at sgclarke@liskow.com, Shannon Holtzman at
ssholtzman@liskow.com, or Jason Johanson at jrjohanson@liskow.com or go to www.liskow.com.
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