UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60777
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAWYER WHEELER, SR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(94-CR-60-1)
_________________________________________________________________
July 2, 1997
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Primarily at issue is the district court’s not submitting the
issue of materiality to the jury for charged violations of 18
U.S.C. §§ 1001, 1014, and 152. We AFFIRM.
I.
Lawyer Wheeler was convicted by a jury in 1995 on three
counts: knowingly and willfully falsifying, concealing and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
covering up material facts to the Farmers Home Administration, in
violation of 18 U.S.C. § 1001; knowingly and fraudulently making a
false oath to a bankruptcy court, in violation of 18 U.S.C. § 152;
and, knowingly and willfully causing to be made a materially false
statement and report to influence the Farmers Home Administration,
in violation of 18 U.S.C. §§ 1014 and 2.
The evidence showed that Wheeler had concealed his farming
activities, assets, income, and debt payments in bankruptcy
proceedings, had made false statements to the FmHA, and, concerning
his wife’s indebtedness to the FmHA, had caused false statements to
be made to the FmHA in order to influence the FmHA to discharge
indebtedness; that the trustee in bankruptcy relied on Wheeler’s
statements “without exception”; that the trustee’s actions would
have been different but for the misrepresentations; that Wheeler
was granted complete discharge and release from his indebtedness on
30 August 1989; and that Wheeler’s release from indebtedness by the
FmHA was because the FmHA was under the impression that “[n]o
assets remain[ed] from which the FmHA could expect to collect
payment”.
Following his conviction, Wheeler was sentenced, inter alia,
to 34 months imprisonment on each of the three counts, to be served
concurrently, and ordered to make restitution to the FmHA in the
approximate amount of $1 million and to the Bank of Webb,
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Mississippi, in the approximate amount of $148,000. His sentence
was stayed pending this appeal.
II.
Wheeler properly raises four issues: (1) that the issue of
materiality should have been submitted to the jury; (2) that the
district court erred in altering or broadening the indictment by
allowing conviction for conduct only partially, instead of solely,
intended to defraud the FmHA; (3) that the evidence was
insufficient to prove that Wheeler’s wife, Ruby Wheeler, had
committed a criminal offense to support Wheeler’s 18 U.S.C. § 2
conviction; and (4) that the order of restitution to the Bank of
Webb was impermissible.
In addition, Wheeler raises for the first time in his reply
brief the contention that the amount of restitution to the FmHA
(approximately $1 million) was excessive. Pursuant to our usual
rule, we decline to review this untimely issue; among other things,
the Government did not have an opportunity, pursuant to the
required briefing schedule, to respond. And, there is no manifest
injustice. Kansa Reinsurance Co., Ltd. v. Cong. Mortgage Corp. of
Tx., 20 F.3d 1362, 1370 n.8 (5th Cir. 1994) (refusing to review
issue raised in reply brief absent “manifest injustice”).
A.
Wheeler contends that, for each of the three counts, the
failure to submit to the jury the issue of the materiality of his
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misstatements violates United States v. Gaudin, 115 S. Ct. 2310
(1995) (materiality a jury question for 18 U.S.C. § 1001
violation).
1.
First, as held last February, materiality is not an element of
the § 1014 violation at issue in count three. United States v.
Wells, 117 S. Ct. 921, 926-27 (1997). In Wells, however, the Court
remanded for consideration whether, despite the superfluity of the
trial judge’s finding of materiality, his statement to the jury
that
[t]he materiality of the statement ... alleged
to be false ... is not a matter with which you
are concerned and should not be considered by
you in determining the guilt or innocence of
the defendant,
impermissibly adversely affected the jury’s “falsity” and “purpose”
findings. Wells, 117 S. Ct. at 931. In the case at hand, the
district court gave a somewhat similar instruction:
[Despite count three charging a materially
false statement] you need not consider whether
any false statement was a material false
statement.
Wells was decided after the briefing in this case. (Wheeler
raised this point for the first time at oral argument.)
Nevertheless, Wheeler had no reason to believe that the trial
court’s explanation of materiality to the jury, regardless of that
element’s inclusion in § 1014, would not adversely affect the jury.
Accordingly, he had no reason not to object to the instruction at
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trial and to brief the point on appeal. Because the issue was not
briefed on appeal, we will not address it. FED. R. APP. P.
28(a)(6); Trust Co. of La. v. N.N.P., Inc., 104 F.3d 1478, 1485
(5th Cir. 1997).
2.
With respect to counts one and two, Wheeler did not object at
trial to the court’s failure to submit the materiality issue to the
jury. Therefore, we review only for plain error: Wheeler must
show error; that is plain; and that affects substantial rights;
and, even then, we will correct the error only if it seriously
affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 730-31 (1993).
Moreover, as the Supreme Court held recently in United States v.
Johnson, 117 S. Ct. 1544 (1997), and as this court had held earlier
in United States v. Jobe, 101 F.3d 1046 (5th Cir. 1996), we will
review for plain error a point, not erroneous at the time of trial,
if there is an intervening change in the law while appeal is
pending. Pursuant to Gaudin, as discussed supra, there was error
as to the § 1001 charge in not submitting materiality to the jury,
and this error is now “clear” or “obvious”. As to the other count,
in that 18 U.S.C. § 152(2) involves “knowingly and fraudulently
mak[ing] a false oath or account in or in relation to any case
under title 11", we will assume for purposes of this opinion that,
for conviction, the oath or account must be “material” and that,
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therefore, for purposes of the § 152 charge, there was also “error”
that is “clear” or “obvious”.
However, the error did not affect Wheeler’s substantial
rights; the outcome of the trial would have been the same had
materiality been submitted to the jury. There was substantial
evidence of materiality, including testimony that the Wheelers’
debt was released as a result of the misstatements that they had no
assets, income, or recent debt payments and that Wheeler intended
this as the result of his misstatements.
B.
The indictment charged in count one that, in violation of §
1001, Wheeler used a scheme of material facts to mislead the FmHA
into releasing his debt. Over Wheeler’s objections, proof was
admitted concerning other debts and the jury was charged that
Wheeler was in violation of § 1001 if his “intent [was] in whole or
in part to defraud the FmHA”. Wheeler contends that such evidence
and the jury charge impermissibly altered and broadened the
indictment by allowing a conviction for fraud against other
victims. We disagree.
The indictment charged that Wheeler intended to defraud the
FmHA, and the jury was required to find that Wheeler had intended
to do so. If, in addition, it found that Wheeler also intended to
defraud others, this does not undermine the fact that Wheeler
intended the FmHA to be one of his victims, nor does it alter the
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indictment -- it charged that the intent was to defraud the FmHA,
not that the sole intent was to defraud the FmHA.
C.
Count three charged Wheeler with making, and causing to be
made,
a materially false statement and report for
the purpose of influencing the actions of the
[FmHA] on an application for settlement of
indebtedness of Ruby S. Wheeler ... in
violation of Sections 2 and 1014, Title 18.
Wheeler contends, erroneously, that he was charged with a § 2(b)
violation only, and that such a violation requires that the jury
find that Ruby Wheeler had committed a criminal offense.
There is some support for the proposition that a § 2 “aiding
and abetting” violation requires proof of the guilt of the person
aided; but, as here, under the “causing” prong of § 2, “there is no
requirement of shared intent; only the person charged need have the
criminal intent, [and] the individual whom the defendant has caused
to perform the act may be entirely innocent”. United States v.
Levy, 969 F.2d 136, 141 (5th Cir.), cert. denied, 506 U.S. 1040
(1992); but see United States v. Beuttenmuller, 29 F.3d 973 (5th
Cir. 1994)(“aiding and abetting” requires proof of underlying
crime, the commission of which was aided or perpetrator of which
was abetted).
In any event, Wheeler was charged under § 2 and § 1014 with
“causing” the misstatements on Ruby Wheeler’s application (placing
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the information on the document and delivering it to the FmHA), not
aiding and abetting her commission of a crime. Therefore, no proof
of her wrongdoing was necessary.
D.
Wheeler’s contention that the order of restitution to the
defrauded Bank of Webb was impermissible because the indictment did
not charge fraud on that Bank likewise fails. Under the Victim and
Witness Protection Act, “[t]he court ... may order ... that the
defendant make restitution to any victim of the offense”. 18
U.S.C. § 3663 (emphasis added). Moreover, a district court may
award restitution under the Act “for the loss caused by the
specific conduct that is the basis of the offense of conviction”.
Hughey v. United States, 495 U.S. 411, 412 (1990). But, neither
the statute, nor Hughey, limits restitution to victims listed in
the indictment, so long as the additional victims were harmed as a
result of the charged conduct. See also United States v. Pepper,
51 F.3d 469, 473 (5th Cir. 1995).
There is little doubt that Wheeler’s false declaration in
bankruptcy court caused the Bank harm. His debt to the Bank was
discharged as a direct result of the bankruptcy proceedings, which
were classified “no asset” proceedings as a result of Wheeler’s
misstatements.
III.
For the foregoing reasons, the judgment is
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AFFIRMED.
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