IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-5673
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO R. LEAL and PEDRO SANCHEZ VARGAS,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court for the
Western District of Texas
_________________________________________________________________
(August 16, 1994)
Before GARWOOD, JOLLY, and SMITH, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Leal and Vargas are minority businessmen who made a business
loan with the Small Business Administration ("SBA"); they appeal
their convictions for crimes alleged to have been committed in
respect to their loan. In this connection, Leal and Vargas
borrowed over $14 million from the SBA for their oil refinery
business under a minority assistance program. To obtain the
minority assistance, Leal stated that he was not using consultants
when, in fact, he was. Under the loan agreement, the SBA advanced
money each month to finance the refinery's purchase of crude oil to
be refined by them. The amount of each advance was based on
invoices the SBA received from them. The invoices were supposed to
reflect the amount of crude ordered and received by them for each
month. In fact, based on incorrect invoices furnished by Leal and
Vargas, the SBA was advancing funds in excess of the agreed amount.
As Leal Petroleum sold the refined product--jet fuel--it was
obligated to forward the proceeds to the SBA. When cash flow
became tight, however, Leal and Vargas converted SBA funds by
diverting $1.4 million in proceeds, and they were charged with
paying part of these funds to themselves, individually, and for
their personal use. At trial, Leal and Vargas were convicted of
making false statements and converting SBA funds to their own use.
On appeal, we have reviewed the record for sufficiency of the
evidence. We affirm the convictions of Leal, affirm in part and
reverse in part the convictions of Vargas, and remand for
resentencing of Vargas.
I
The Small Business Administration ("SBA") operates a program,
known as the "8(A) program," which is designed to assist socially
and economically disadvantaged entrepreneurs in getting into
mainstream American business by giving them the opportunity to sell
goods and services to the federal government. In order to be
involved in the 8(A) program, participants must be socially and
economically disadvantaged; own fifty-one percent of the
participating business; manage the business on a daily basis;
demonstrate a potential for success; and have a product or service
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that is purchased by the federal government. If accepted into the
8(A) program, participants get the benefit of "noncompetitive
procurements from the federal government."
Alvaro Leal and Pedro Vargas, as stockholders of Leal
Petroleum Company ("LPC"), participated in the SBA's 8(A) program,
contracting to supply jet aircraft fuel to the Defense Fuel Supply
Center ("DFSC").1 As part of this arrangement, the SBA and Leal
agreed to an "advance payment"2 contract, in which the SBA agreed
to provide fourteen million dollars in financing to assist in LPC's
performance under the DFSC jet fuel contract.3 As required by SBA
regulations, the total amount required to fund the purchase of
crude oil for the government's portion of the contract was set
aside.
The advance payments were made through an account held jointly
by the SBA and LPC. When LPC wanted to use the funds for crude oil
purchases, LPC would obtain preliminary invoices from its crude oil
1
In March 1986, the DFSC awarded a minority set-aside
contract to produce 42 million barrels of jet fuel to the SBA.
In turn, the SBA subcontracted that contract to LPC on March 27,
1987.
2
Advance payments are those made by the SBA to LPC prior to
LPC's purchase of crude oil for refinement.
3
Under the contract, the SBA would fund sixty-eight percent
of LPC's crude purchases. Sixty-eight percent corresponds to the
amount of each barrel of crude oil that would be converted into
jet fuel and then delivered to the DFSC. The remainder of the
crude produced other by-products that LPC sold in the private
market. The SBA would not fund LPC's operations that fell
outside the scope of the DFSC contract.
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supplier--Tesoro Crude Oil Corporation ("Tesoro")--for the amount
of crude to be shipped in the next month. Based on the preliminary
invoices, LPC would prepare a "certification letter" for the SBA,
stating the amount needed for the next month's crude oil purchases.
When the SBA had approved the advance payment for the percentage
amount that the SBA would finance, the SBA and Leal would both sign
a check to transfer money from the joint bank account to a special
lock-box account controlled by Tesoro.4 In this way, Tesoro
insured that it would be paid for the next month's crude delivery.
The crude oil purchase being then complete, LPC was to receive the
crude and then refine it into jet fuel for delivery to the DFSC.
All payments received from the DFSC for jet fuel deliveries were
deposited back in the joint account,5 and LPC agreed to "liquidate"
all such proceeds into a cashiers check for payment to the SBA.
After this advance payment system was in operation, however,
LPC began experiencing cash shortages because of dropping oil
prices. When confronted with this problem by LPC's comptroller,
Leal stated that he had a "method" of diverting money from crude
oil purchases to fund operations. At trial, the government
contended that the "method" consisted of LPC's submitting
4
As previously noted, the SBA was to pay on sixty-eight
percent of each barrel purchased in order that the SBA would not
fund LPC's nongovernment business.
5
The SBA filed a Form UCC-1 to perfect its security interest
in the money in the joint account and the proceeds received into
the account from the DFSC.
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certification letters to the SBA--based on preliminary invoices to
LPC from Tesoro--and then LPC's refusing to accept delivery of some
of the crude oil when Tesoro, in accord with the preliminary
invoice, shipped it to LPC. Thus, the SBA, funding monies to LPC
on the basis of the invoices, would have funded more fuel oil than
was actually accepted and paid for by LPC. In the next month, LPC
was then able to use these excess SBA funds for operations and
crude purchases outside of the DFSC contract, in violation of the
advance payment contract.
Cash flow degenerated further in March 1987 after the SBA
stated that it would not renew the advance payment loan for another
year. At that point, the DFSC paid approximately $1.4 million to
LPC for previous delivery of jet fuel, which sum was deposited into
the joint account. Under the contract, Leal was supposed to
purchase with these funds a cashier's check payable to the SBA.
Instead, Leal deposited the $1.4 million into LPC's operating
account. Most of this $1.4 million, in the absence of the previous
advance payment arrangement with the SBA, went to pay for the next
month's crude. Leal and Vargas, however, took part of this money--
$300,000 and $55,000, respectively--for their personal use.
Because LPC had used the $1.4 million for operating expenses, it
could not make a scheduled payment to the SBA. When LPC defaulted,
the SBA investigated and criminal charges followed.
In addition to the charges that resulted from LPC's
misappropriation of SBA funds, Leal was also charged with making
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false statements to the government about LPC's use of consultants
and about a contingent liability for future royalties to be paid
the undisclosed consultants. The facts that are relevant to those
charges are as follows: As a condition to the advance payment
contract, LPC agreed not to employ consultants while advance
payments were outstanding and to disclose any contingent
liabilities. Leal, however, had previously used consultants to
obtain the DFSC contract and had agreed to pay them a fixed fee and
royalty payments for every barrel of jet fuel. Leal did not
disclose a contingent liability for future royalties to be paid the
undisclosed consultants. In fact, Leal set up a shell corporation,
San Antonio Fuels ("SAF Oil") in order to pay a consultant--through
SAF Oil--without alerting the auditors that LPC was paying
consultants.
II
On April 15, 1992, the grand jury indicted Leal and Vargas.
Leal and Vargas were charged with conspiring to defraud the SBA in
violation of 18 U.S.C. § 371 and conversion of SBA funds for
personal use in violation of 15 U.S.C. § 645(c). Additionally,
Leal and Vargas were charged with several counts of making false
statements to the government in violation of 18 U.S.C. § 371.
The jury rendered the following verdicts:
COUNT DESCRIPTION VERDICT
Leal Vargas
1 § 371-Conspiracy to Defraud the SBA Not Guilty
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2 § 645(c)-Conversion of SBA Funds Guilty
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COUNT DESCRIPTION VERDICT
Leal Vargas
3 § 1001-False Statement--9/5/86 Not Guilty
Letter re: $2.7 million in costs
4 § 1001-False Statement--9/24/86 Not Guilty
Letter re: $1.1 million in costs
5 § 1001-False Statement--10/16/86 Guilty
Letter re: $1.4 million in costs
6 § 1001-False Statement--12/5/86 Guilty
Letter re: $2.9 million in costs
7 § 1001-False Statement--1/12/87 Guilty
Letter re: $2.3 million in costs
8 § 1001-False Statement--7/30/86 Guilty N/A
Letter re: consultants' employment
9 § 1001-False Statement--7/31/86 Guilty N/A
Contract re: contingent liability
The district court sentenced Leal to a total of seven years
imprisonment, five years of probation and over $4 million in
restitution. The district court sentenced Vargas to four years
imprisonment, five years of probation and approximately $4.9
million in restitution.
III
On appeal, Leal and Vargas argue (1) that the evidence was
insufficient to support each of their convictions for conversion of
SBA funds to personal use; (2) that the evidence was insufficient
to support each of their convictions for making false statements;
and (3) that the district court erred in limiting each defense
attorney to 22 minutes for closing argument. Finding that the
evidence was sufficient to support all of the jury's convictions
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against Leal, we affirm Leal's convictions and sentence. Further,
we affirm the district court's conviction of Vargas for conversion
of funds, but we find insufficient evidence to support the false
statement convictions of Vargas. We therefore reverse and vacate
the convictions of Vargas on counts five, six, and seven, and we
remand this case to the district court for resentencing. Finally,
we hold that the district court committed no error with respect to
closing argument.
A
The appellant's first challenge to the sufficiency of the
evidence concerns their convictions under 15 U.S.C. § 645 for
conversion of SBA funds to personal use. Section 645(c) imposes
criminal sanctions on "[w]hoever, with intent to defraud, knowingly
conceals, removes, disposes of, or converts to his own use or to
that of another, any property mortgaged or pledged to, or held by,
the [SBA] . . . ." 15 U.S.C. § 645. In reviewing challenges to
sufficiency of the evidence, this court views the evidence in the
light most favorable to the jury verdict and affirms if a rational
trier of fact could have found that the government proved all
essential elements of the crime beyond a reasonable doubt. United
States v. Ruiz, 987 F.2d 243, 249 (5th Cir.), cert. denied, 114
S.Ct. 163; 126 L.Ed.2d 123 (1993). All credibility determinations
and reasonable inferences are to be resolved in favor of the jury's
verdict. See id.
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By the terms of the agreement between the SBA and LPC, all
money that LPC received from DFSC for jet fuel sales was deposited
directly into the joint account held by the SBA and LPC. Leal was
then required by the terms of the agreement--terms about which
there is no dispute or misunderstanding alleged--to use one hundred
percent of these sales proceeds to repay the SBA loan. The method
established to accomplish this repayment required Leal to purchase
a cashier's check and thereby to deliver the proceeds to the SBA.
On the occasion in question, however, Leal instead withdrew $1.4
million from the joint account and deposited these monies into
LPC's operating account. On the same day that the money was
deposited into the operating account, Leal withdrew $300,000 and
Vargas withdrew $55,000 for their personal use. These are the acts
that formed the basis for their conviction under 15 U.S.C. § 645
for conversion of SBA funds to personal use.
(1)
In arguing whether these acts amounted to conversion, both
parties have focused their discussion on whether the SBA had a
properly perfected security interest and/or a valid lien in the jet
fuel proceeds that were deposited in the joint account. We need
not determine, however, whether the SBA had a perfected security
interest in these monies in order to uphold a conviction under 15
U.S.C. § 645 as it relates in this case to Leal and Vargas.
Section 645 requires only that the property be "pledged" to the
SBA, and there is no indication that "pledged" must be given a
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meaning restricted to its most narrow and legalistic definition on
the basis of state law.
Although we are not faced with deciding the absolute minimum
criterion of what formalities are required to constitute pledged
property under 15 U.S.C. 645, we hold in this case that, as between
the defendants and the SBA, jet fuel sales proceeds were "pledged"
to the SBA sufficient to satisfy the crime Congress intended to
reach under this statute. Pursuant to the loan agreement, Leal and
Vargas agreed to segregate these funds by placing them into a
designated account. They agreed that SBA had an ownership claim to
one hundred percent of these proceeds. And they agreed that the
purpose of these funds was solely to repay their indebtedness to
the SBA. Clearly these funds were pledged to the SBA by the
unequivocal and binding promises in the loan agreement.
Furthermore, Leal and Vargas knew that this money was pledged
to the SBA, that they had no legal or other claim to these funds,
and, to the extent that they exercised possessory control over
these funds, they knew that the loan agreement permitted only one
disposition of the funds: deliver them to the SBA. In short, these
funds were contractually pledged to the SBA in a manner sufficient
to support a conviction under 15 U.S.C. § 645. See United States
v. Bellman, 741 F.2d 1116, 1118 (8th Cir. 1984).
(2)
Second, Vargas argues that because he was acquitted on the
conspiracy charge, there is not enough evidence to show that he
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participated with Leal in converting the SBA funds. On the
contrary, the evidence shows that Vargas was a CPA, owned a
substantial minority interest in LPC, and was substantially
involved in the day-to-day operations of the refinery. Vargas had
expertise in the financial matters of LPC. Further, Vargas argued
vehemently with Leal in an effort to keep Leal from depositing the
pledged funds into LPC's operating account, which showed that both
men knew the funds had to be paid over to the SBA. Yet, when the
sales proceeds were deposited into LPC's operating account, Vargas
did not quit his job or otherwise disassociate himself from the
act. Instead, he withdrew $55,000 from the operating account for
his personal use--on the very day that the pledged funds were
deposited into the operating account.
(3)
Vargas also argues that he did not convert SBA funds for
personal use, but rather that he merely took a $55,000 loan from
the refinery's operating cash. He argues that because the
operating account had more than $138,000 in funds from sources
other than the SBA--Leal Petroleum's private market business--
Vargas's $55,000 loan simply did not involve the SBA's funds.
We conclude, however, that the evidence was sufficient for the
jury to infer that Vargas did convert the SBA's funds for personal
use. Vargas withdrew the $55,000 immediately after the $1.4
million of SBA funds were deposited into LPC's operating account.
The jury could easily infer that Vargas's withdrawal came from the
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$1.4 million of SBA funds, which comprised approximately 96.5% of
the operating account balance, instead of the $138,033 of non-SBA
funds, which comprised approximately 3.5% of the operating account
balance. With the company strapped for cash and with notice that
the advance payment loan would not be renewed, the jury could
easily infer that Leal and Vargas were trying to line their pockets
with funds they knew were pledged to the SBA before LPC became
insolvent.
(4)
In sum, with respect to the conversion count, the evidence is
clearly sufficient to support the conclusion that jet fuel sales
proceeds had been pledged, under the loan agreement, to the SBA.
The evidence further supports the jury's finding that when Leal
deposited such proceeds in LPC's operating account, and that when
Leal and Vargas withdrew part of that money from LPC's operating
account, they knowingly converted SBA money to their "own use or to
that of another." 15 U.S.C. § 645. Thus, we affirm the section
645 convictions of Leal and Vargas.
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B
The appellants second challenge to the sufficiency of the
evidence concerns their convictions under 18 U.S.C. § 1001 for
making false statements. Section 1001 imposes criminal penalties
on:
Whoever, in any matter within the jurisdiction of any
department or agency of the United States knowingly and
willfully falsifies, conceals or covers up by any trick,
scheme, or device a material fact, or makes any false,
fictitious or fraudulent statements or representations,
or makes or uses any false writing or document knowing
the same to contain any false, fictitious or fraudulent
statement or entry . . . .
18 U.S.C. § 1001 (emphasis added). The elements of a § 1001
offense are: (1) a statement, (2) falsity, (3) materiality, (4)
specific intent, and (5) agency jurisdiction. United States v.
Baker, 626 F.2d 512, 514 (5th Cir. 1980). Again, with respect to
sufficiency of the evidence challenges, this court views the
evidence in the light most favorable to the jury verdict and
affirms if a rational trier of fact could have found that the
government proved all essential elements of the crime beyond a
reasonable doubt. Ruiz, 987 F.2d at 249.
(1)
First, Leal argues that the evidence was insufficient to prove
that the SBA was an "agency of the United States." The evidence on
this point, however, was not insufficient. Alexander, the SBA's
assistant regional administrator, testified as follows:
Question: "SBA is a government agency, right?"
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Alexander: "That is correct."
Second, Leal argues that the evidence did not establish that
he made any "false statements." With respect to the alleged false
statements in counts five, six, and seven--the certification
letters based on the preliminary invoices and each signed by
Leal--Leal asserts that he did not knowingly make false statements
because his applications for advance payments were based on good
faith estimates at the time they were made. See United States v.
Race, 632 F.2d 1114 (4th Cir. 1980). The amount of each
certification letter was computed by calculating the amount of
crude oil necessary to refine enough jet fuel to fill the DFSC's
order for the next month. Thus, he argues that the estimates he
furnished to the SBA were reasonable when made. Further, Leal
points out that when LPC actually processed less crude oil than
ordered, it adjusted its next month's order of crude.
Viewing the evidence in the light most favorable to the jury
verdict, however, we find that a rational trier of fact could have
found beyond a reasonable doubt that Leal was guilty under counts
five through seven, which relate to the certification letters.
Leal signed and submitted numerous monthly "preliminary invoices"
that listed higher amounts of crude than the refinery actually
received--LPC refused crude deliveries without informing the SBA
over 100 times in a three- to six-month period.6 Further, Leal
6
Although the jury acquitted Leal and Vargas of the first
two false statement-certification letter charges, it apparently
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told Perrin, a consultant and LPC's comptroller, not to worry about
a shortage of operating cash because he had a "method" of diverting
money for crude oil to cover operating costs. This "method" was
the intentional overinflation of the preliminary invoices and the
intentional failure to make adjustments or to inform the SBA when
the represented amount of crude was not purchased. This inflation
resulted in over $3 million in excess payments from the SBA to LPC,
which were then used for purposes not included in the loan
agreement. The jury verdicts of Leal's guilt of these false
statement counts are supported by the evidence.
(2)
With respect to Vargas, however, we find that the evidence was
not sufficient to support his convictions under § 1001. Counts
five, six, and seven of the indictment, setting out specific dates,
charged that
On or about October 16, 1986, [December 5, 1986, and
January 12, 1987] . . . Pedro Sanchez Vargas, knowingly
and willfully made or caused to be made . . . false and
fraudulent statement[s] and representation[s] as to a
material fact . . . in that [Vargas] submitted and caused
to be submitted to the S.B.A. [three specific letters]
certifying that [certain amounts were] a cost incurred in
performance of the S.B.A. contract for the purchase of
crude oil from Tesoro Crude when in truth and in fact, as
[Vargas] well knew, [those] amount[s were] significantly
overstated, all in violation of Title 18, United States
Code, Section 1001.
(Emphasis added). The evidence showed that Vargas did not sign any
of the certification letters (the advance payment requests) that
refused to excuse the repeated pattern of overestimation.
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were submitted to the SBA by LPC. Further, the evidence did not
establish that Vargas was involved in the preparation of the
letters listed in the indictment or in the delivery of such letters
on the specific dates listed in the indictment. Accordingly, we
hold that the government failed to prove beyond a reasonable doubt
that Vargas committed the crimes with which he was charged in
counts five, six, and seven of the indictment,7 and we reverse the
contrary judgment of the district court.
(3)
Third, with respect to count eight, which dealt with the
hiring of consultants, Leal argues again that he did not knowingly
make any false statements. The indictment charged that Leal made
a false statement in a letter to the SBA when he stated that
"[c]onsultants will not be employed without prior approval of the
SBA." (Emphasis added). Leal argues that this statement was true,
because at the time he signed the letter, the consulting fees had
already vested. Further, in a prior letter, Leal stated that
7
The record will support a finding that Vargas caused to be
made various false statements over the course of the SBA contract
in that the evidence showed that Vargas did deliver advance
payment requests packets to the SBA on several occasions. These
occasions, however, are unspecified in the record by date or
other detail. Further, the evidence will support a finding that
Vargas "concealed" "material fact[s]" from the SBA by not
revealing to the SBA that they were continually overfunding LPC's
crude purchases. The indictment, however, charged Vargas not
with concealment or generally with making false statements over a
period of time, but with making specific false statements
designated by specific dates in specific letters. As we have
noted, there is no evidence in the record that connects Vargas to
the false statements alleged in the indictment.
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"effective the date of the advance payment, LPC will obtain prior
SBA approval from the District Office for all consultant
agreements." He contends that the most reasonable construction of
the "consultant" language was that LPC would obtain prior approval
for future employment of consultants. He argues, thus, that he did
not make a "false statement" as a matter of law. See Race, 632
F.2d at 1120. Finally, Leal argues that his statements were
literally true because he only employed consultant Besinaiz to
obtain the DFSC contract, which was obtained months prior to Leal's
letter of intent. Thus, although the payments to Besinaiz
continued after Leal's statement, Besinaiz's services ended prior
to the statement.
The evidence is clear, however, that Leal intended to mislead
the SBA by assuring them that he would not employ consultants.
Leal signed several agreements--the Participation Agreement,
Solicitation, and Contract--that required him to disclose the
payment of consulting fees. It was made clear to Leal that the SBA
wanted to make sure that the minority assistance was assisting
minority business only. Yet, he used consultants to obtain the
DFSC contract, and he continued to pay them royalties, from the
DFSC contract, after the SBA papers were signed. And instead of
disclosing the payment of consulting fees as he was required to do,
he assured the SBA that he would not employ consultants.
Furthermore, Leal set up a shell corporation in order to pay a
consultant in a manner that the auditors could not discover. Thus,
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the jury is supported in finding that Leal made a false and
fraudulent representation by assuring the SBA that he would not
employ any consultants while at the same time remaining silent
about the consultant he was continuing to pay. See United States
v. Mattox, 689 F.2d 531, 533 (5th Cir. 1982) ("Silence may be
falsity when it misleads, particularly if there is a duty to
speak.").
(4)
Finally, with respect to count nine, Leal argues that he did
not make a false statement when he said that he had "disclosed all
contingent liabilities" because he was not required to disclose the
consulting fees as a "contingent" liability. He contends that in
July 1986, when the DFSC contract was executed, the fees became a
fixed liability. The liability, however, for the royalty payments
to the consultants was contingent in the sense that it was only
triggered when the jet fuel was actually delivered. See AICPA
Technical Practice Aid, Update No. 93.03 (1991) (stating that
royalties for to-be-mined coal are contingent liabilities); see
also Black's Law Dictionary 321 (A contingent liability is a
liability that "is not now fixed and absolute, but which will
become so in case of the occurrence of some future and uncertain
event.") Because the payment of royalties based on to-be-delivered
jet fuel constitutes a contingent liability as a matter of law, and
in the light of the relevant evidence as a whole, the jury was
clearly supported in finding that Leal meant to convey a falsity
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when he asserted that he had "disclosed all contingent
liabilities." In sum, we find that the evidence is sufficient to
support Leal's convictions under counts eight and nine of the
indictment, and we affirm the district court in that respect.
C
The appellants last argue that they are at least entitled to
a new trial because the district court erred in limiting each
defense attorney to 22 minutes for closing argument. We review a
district court's determination of how much time to provide to
defense counsel for closing argument for an abuse of discretion.
United States v. Bernes, 602 F.2d 716, 722 (5th Cir. 1979).
We conclude that the district court did not abuse its
discretion in limiting the total closing argument time for both
defendants to 45 minutes. The district judge listened to both
sides before deciding how much time to allot. The district court
decided, based on all the facts and circumstances, that 45 minutes
total was sufficient. As the government points out, the defense
was basically that there was a lack of intent, which did not
require an elaborate presentation. Thus, we cannot say that the
district court's decision was unreasonable. Further, neither
defense counsel requested more time at the termination of their
closing argument. See Bernes, 602 F.2d at 722 (refusing to reverse
for allotting too little time for closing argument, and noting that
defense counsel did not request more time at the end of his closing
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argument). Thus, we hold that the district court committed no
reversible error in this respect.
IV
In conclusion, we hold that the evidence is sufficient to
uphold the conviction for conversion against both Leal and Vargas.
The evidence further supports all false statement counts against
Leal. The evidence is insufficient, however, to support Vargas's
convictions for making false statements. We therefore REVERSE and
VACATE the convictions of Vargas on counts five, six, and seven,
and we REMAND this case to the district court for resentencing.
And, finally, we have held that the district court did not abuse
its discretion in limiting the defendants' closing argument time.
Accordingly, the judgment of the district court is
AFFIRMED in part and REVERSED and VACATED in part,
and REMANDED for resentencing of Vargas.
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