Monday, September 17, 2007
Can You See It (September 10, 2007)
One of the biggest differences I've found among people on this blog has been their vision. I ask myself how some can see the opportunity and others can only see themselves. I think self-preservation has a certain blindness. Scott is a man unique among men. He could have been out of jail easily a year and a half ago. All he had to do is make a self-preservation choice over his integrity of holding out for God's best. Now I am an easy villain with my back-ground and attitude but how do you rail on this man? His sacrifices for people who could care less about him, his pains, or sorrows cannot be slighted. I have seen him struggle in all ways. Bill, Farrel, and Dewey struggled but when measuring himself before God trusted beyond his understanding. I delight now that his reward is rapidly approaching him. In the book of Judith, she saw an opportunity in the army seizing her town while others only saw their demise and God's shortcomings. Now the mortgage industry is catching up to the evils we challenged. The skirt of these whores is being lifted and even you blind people are seeing their perversion. I don't hear your rhetoric when the crowd would join you. Are you afraid to talk of other's future when it is obvious and you're not special? What is your remedy now but to blame the foolish borrowers? Another original idea I bet you'll think. Not until you learn what Scott knows will you ever see the opportunities right in front of your face.
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52 comments:
Yes, I Can See It! Good job in uncovering to truth that we clients and onlookers would have never known! We cannot ignore what we see in the various media communications regarding the mortgage industry.
Correction: "the truth"; not "to truth".
near the end said...
Hey Conmanbuster; How did you get conned when everything Kurt and Scott did for you was spelled out and in writing.
You did sign the Trust did'nt you.
Also; everything was SPELLED out to the Lenders too; and it was in writing and they signed it.
Come on dude!!!! Can't wait for the trial to begin.
Rear End, I thought you didn't know anything about the dorean process and you were just here to harass Bruce? Just another lie from the dorean faithful.
No; I just knew that would bring you out;and IT DID!!!!!
All he [Scott] had to do is make a self-preservation choice over his integrity of holding out for God's best.
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talk to Scott's wife about integrity. I'm sure she'll vouch for him. Integrity doesn't mean wives excluded.
In case anyone is wondering, some of the bank fraud counts being dismissed are specifically for the broker defendants who have plead guilty or maybe are still negotiating.
The scam continues to slowly unravel no matter what quasi-religious blather Kurt propounds.
The alleged victims are still coming forward to recover their properties from the bogus trusts and in the coming months most of the few remaning civil cases will be resolved no matter what happens in the criminal case.
All that's really left is to round up the remaining accomplices like Gashler.
2008 should be especially interesting for them.
Mostly what's really left to do is to dismiss the REMAINING CHARGES & let the Defendants go free.
I'm thinking 2007 will be more interesting than 2008.
Judge Bean said: "The scam continues to slowly unravel"
________________________________
THAT'S FUNNY, THE PROSECUTION SAID IN THEIR OWN FILING THAT THEIR DISCOVERY WAS COMPLETE.
Judge further blathers: "All that's really left is to round up the remaining accomplices"
THAT'S EVEN MORE FUNNY, SINCE THEY CAN'T EVEN ROUND UP MS. MAGOON.
KEEP USING YOUR GUESSING WORDING, LIKE 'ALLEGED' 'NO MATTER', 'MAYBE', 'WONDERING' AND 'BOGUS'. THOSE WORDS DEFINE YOU.
What about the "judicial economy" argument, the need to have all Defendants arraigned & locked up in the US jails ready for trial to be tried all together as one group of Defendants.
Course Bill motioned to get a separate trial since he believed that would be to his best interests, but was denied. Alot of good that motion did for him if he just ended up copping a plea bargain. Where is Sarah Magoon? She was still a Defendant last time I checked, yet no work or effort by the US Marshalls or prosecution has been done to retrieve her so she's ready for trial to be tried in the same group.
Is this proof in & of itself that the trial won't happen or couldn't happen on time as scheduled? Wouldn't want to injure anyone's rights now, would we?
Or were all those blow hard arguments before, suddenly no longer valid or were never really an issue of importance ever anyway to the prosecution. Or was this judicial economy argument just a ploy to further the trial farther into the future as long as possible. The trial that never became to be...... Is that how this will turn out? It's sure looking that way.
Judge Bean said: "The scam continues to slowly unravel"
________________________________
THAT'S FUNNY, THE PROSECUTION SAID IN THEIR OWN FILING THAT THEIR DISCOVERY WAS COMPLETE.
-----------------------------------
LOL!!!! That is laughable:)
sopsback---you a funny person, where you come from? downunder or somewhere like that??
I hope every single one of you read this post and realize how retarded all of you are.
While Kurt is living his wonderful, wealthy life probably surrounded by expensive things that he bought to make his life seem like it has value, his three children, one of them being me, Sean Travis Johnson, are living in Arizona working hard to pay their way... The legal way.
You also didn't know that when my dad got into development of his first scheme he went to jail for, he was packing away large amounts of money on a private yacht, while our family was homeless in California, living off the damaged food cans for our dinner which he would bring to us from the Pack & Save grocery store he used to work at.
The fact that he put himself and his own personal wealth before his family, is fucked up. Not to mention the fact that it isn't already extremely fucked up that he was stealing all this money from stupid, manipulatable people just like all of you who get sucked right in to the bullshit of his words.
And as for you dad, I hope you keep brainwashing these followers of yours and succeed to be as wonderful of a man as Hitler, making people believe that your screwed up ideas you come up with are actually helpful. I hope you joke about how you all think you know the law so well, how it's all fucked up, and how you all truly believe that a small group of Californians can change it by breaking the law, in an effort to show the "truth" of your ways.
You also need to stop with all of the "God's the future" crap because you don't know shit about god. God isn't some supremacist who embraces the people who worship him and gives up on who doesn't. The life you live is about you. It isn't about wasting away days of your life praying to something that we believe exists because of stories that formed thousands of years ago. For any sane human being, it is obvious that if you play the game telephone with a group of people and start with a story, it's not going to be told the same way on the other end. So how do you expect everyone from the time when the bible's stories started developing to all tell the truth, as well as, the same stories as everyone else. That right there, is assuming that it isn't human nature to exaggerate.
And even if there was a god who believed that those who stay true to him, stay true to life, or some bullshit like that, he would have told you to stay true to your family and your children in hopes to raise, healthy, smart, beautiful men and women. Mom did an exceptional job of doing that on her own though. So you shouldn't worry too much. Just keep moving along, not paying child support for the 17th year straight now.
Why do you choose to do that? Oh well it's because you love your children so dearly and would do anything to make them happy.... Like not make an effort to be a part of their lives and put the request slip for child support in the paper shredder when it showed up in the mailbox, and decide not to come down to Tucson to see us occasionally because it's too much of a pain in the butt to just follow the rules of a restraining order. My kids just aren't worth the effort or discomfort.
When this trial ends, I'll be "praying to the ol' mighty god" that you sit in a 9' by 9' cell, thinking about how all three of your kids, me, Shannon, and Ethan would enjoy seeing you get strapped up to the fryer seat and watch your flesh crisp up like breaded chicken. I hope you also sit in your cell thinking about how many lives you fucked up, while trying to convince everyone that you believed in honor, integrity, truth, and all that other manipulative sac of shit you say you're about.
And while you're doing that, I'll adopt your religious studies for a quick moment to hope one thing is true in the Christian beliefs. And that is hoping that there truly is hell, so that I can be assured that you'll fall to the deepest of depths, eternally burning in the afterlife as payment for all the twisted things you have done to better yourself while hurting others.
Sincerely,
Sean Travis Johnson
I'll bet someone that's not really Kurt's son posting.
Hmmmmm, Been in jail over 2 years and now he comes out to say he hates his Dad.
near the end said...
I'll bet someone that's not really Kurt's son posting.
Hmmmmm, Been in jail over 2 years and now he comes out to say he hates his Dad.
Hmmmmm, and you've been correct about what in the past with your pathetic ramblings, to make this assumption and have ANYONE believe it?
dr. fred, everyone knows you read this blog, why don't you give us a response to your "grandson's" post????
seanjohn1018 said....
"When this trial ends, I'll be "praying to the ol' mighty god" that you sit in a 9' by 9' cell, thinking about how all three of your kids, me, Shannon, and Ethan would enjoy seeing you get strapped up to the fryer seat and watch your flesh crisp up like breaded chicken. I hope you also sit in your cell thinking about how many lives you fucked up, while trying to convince everyone that you believed in honor, integrity, truth, and all that other manipulative sac of shit you say you're about. "
YEAH RIGHT....WHERE HAS THIS KID BEEN THE LAST 2+ YEARS??? ALL THE SUDDEN HE SHOWS UP TO CURSE HIS DAD OUT.
WELL, IF YOU ARE REALLY THE SON OF KURT...HERES A WARNING FOR YOU STRAIGHT FROM THE BIBLE:
EPHESIANS 6:2,3 "Honour thy father and mother; which is the first commandment with promise;
That it may be well with thee, and thou mayest live long on the earth."
YOU DONT HONOUR YOUR PARENTS... YOU'RE CURSED.
Sounds like a banker cry-baby bitch who just got exposed to me instead of Kurt's son.
Frivolous, you're lucky you don't live in Tucson with Kurt's son because he would knock you the fuck out. One thing I did learn how to do from my dad.
And Habakkuk, I'll read you a little line from my bible. "Thou shall shut the fuck up if he's going to be a pussy and embarrass himself with quotes that only a bitch would say to insult someone."
and for all of the rest of you who don't believe that I'm actually Kurt's son, and Fred's grandson, ask Kurt about the time 4-5 years ago when he showed up at my house in a white car something similar to a Crown Victoria or Mercury Marauder to pick up my brother and take him back to California before my mom got home from work but was unlucky because my mom did come home in time and told Kurt to leave. I know he'll remember that.
Or maybe the one time he decided to follow someone else's rules for once instead of making his own, and came down to Tucson to see his children and take them to the Tucson mall and to Funny Park to play basketball. He'll remember that my mother's dad, Grandpa Bob had to monitor him at all times while he was with my brother, sister, and I.
He'll know it's his real son speaking.
And I didn't just decide to all of a sudden bitch my dad out after two years, I found out he was going to jail after this mortgage scheme a long time ago and figured I would never talk to him ever again anyway. But, as I was finishing my paper that i wrote about him for my writing class, I decided to take a few minutes to research more on his fucked up life and found this blog. So, then I decided to bitch at him.
And the more I read, the more i see all of you little mindless people take in every word he says as if he actually is some sort of god. You people have brains for a reason. It's to think for yourself, not sit on a blog all day listening to a criminal trying to convince you that what he did was not against the law and was good hearted.
And I almost forgot to mention how much of an ignorant fuck you are habakkuk for saying I don't honor my parents. Cuz I do honor my parents. My mother and step-dad who actually sacrificed for their children in order to get us to where we are now. If it weren't for my mother who moved away and started working two jobs while going to school full time, and had 3 infants to raise, I would have been living in the alleyways of San Jose still eating half a can of Campbell's chicken noodle.
Or if it weren't for my stepdad who came into my life early enough to take on the father duties he needed to and started working 60 hours a week so that my mom could stay home and have more time with her children.
Don't ever say I don't honor my parents again you lousy fuck. I honor the parents that actually did their job instead of running away like some pussy and robbing innocent people.
SeanJohn1018 said...
"Don't ever say I don't honor my parents again you lousy fuck. I honor the parents that actually did their job instead of running away like some pussy and robbing innocent people."
*************************
STANDING OVATION
******************
FINALLY.............someone who knows Kurt on a personal level and who isnt blinded by the constant bullshit that spews out of his mouth
How do Y'all feel about your GOd-given hero now???????????
What a man he is!!!!!!
Leaves his family and children, scams people out of their money and lives the high life while his own blood have to scrap by to survive
Thank you SeanJohn for reavealing to the others what some of us already knew.
Will be interesting to see what your Dad (cough cough)will have to say about this.
Kind of indefensible isnt it?
There aint no dream from God gonna cover up how bad he treated you and the rest of your family
Wow tough guy (Sean), I bet all your problems in life were because of your dad too huh - no personal liability/accountability? So curious what's your thoughts on Grandpa Dr. Fred is he a con too?
Well, if you read between the lines you would have read that I thought you were a banker posing as Kurt's son etc.
So Sean, what do you know about law since you claim Dad's a con??? Have you studied the UCC/Contract law/Administrative Procedures available? Have you personally tested the things that Kurt's done? I have successfully implemented these Administrative proceedures and have proven them to myself. So you're going to have to be a little more convincing than spouting off that Dad's a con and what he did was illegal.
Sean said: "living off the damaged food cans for our dinner which he would bring to us from the Pack & Save grocery store he used to work at.
The fact that he put himself and his own personal wealth before his family..."
_______________________________
Seems to me he thought of his family if he is bringing food to you. What did I miss here?
Sean also said: Kurt was "PROBABLY surrounded by wealthy things", although you said HE WAS packing large amounts of money onto a yacht. Sean, your own testimony hurts your own credibility.
Don't you ACTUALLY KNOW? If you don't, than maybe you should ascertain the facts first before judging and getting angry, fair enough?
There's always two sides to every story.
"Mom did an exceptional job of doing that on her own though."
Again, I'm confused here again, if Mom has provided ALL OF THE CHILDREN'S NEEDS, what need is there for child support, other than an excuse to complain?
Yep, God's a supremist & Kurt, my dad, is an Adolph Hitler. LOL
We have here an honest attempt to tell the whole truth with no embellishments. LOL
"Honor thy father and mother that thy days may be long upon the land that the Lord thy God giveth you."
Kind of difficult to understand God when one can't even respect both parents for what they have done for you. If you can't fully appreciate your earthly parents, you can't appreciate your heavenly parents either, pure & simple.
I wonder how long Sean's posts will remain here.
Not to worry. They're preserved.
ok. lets be SERIOUS for a moment here.
i have ignored the "son of ..." posts without comment becuasue on this blog, you never know what to believe as true and how many posts are from the same user id.
i will now assume the "son of.." post is REAL.
HS wisdom tell me the following remedy, which is very difficult, but the only correct way.
IF the story IS TRUE, THEN:
1) father must take monkey off his back and apologize to son for hurting him in past. (also, why god hates divorce; hurts innocent victims) Older one in yeshua must take initiative; this is not a game of "chicken"
father should say he's sorry and ask if there is anything that he can do now for son.
father MUST also ASK SON FOR ***FORGIVENESS***
2) after apologizing, and asking for foregiveness, now father has taken monkey off his back and placed squarely on sons back. now monkey is on sons back. in order for son to take monkey of his own back, he must must tell father that son FORGIVES HIM for all trespasses. (and means it)
the above is exceedingly difficult for both to do, and yet the ONLY CORRECT WAY to resolve issue.
in order to make it easier to swallow, we must remember, as christians, we all must give our pound of flesh (suffering)
if it werent father that casued son suffering, some other form of suffering would have come to son anyway; suffering is suffering.
same for father; if first wife did not casue suffering, it would have come some other way anyway.
we must all SUFFER. there are those who say that this is not true, but they dont have any wisdom.
HOW ARE YOU NOT GOING TO SUFFER, IF YOU ARE A CHRISTIAN LIVING IN SATANS KINGDOM????? TELL ME THIS??
after taking the above steps, there will be a 'cooling off' period, but reconcilation will take time but is ASSURED.
the clock starts ticking.
if the above steps 1 & 2 are NOT taken, the clock cannot start ticking yet.
it may take years, but father and son will be togethter again: GUARENTEED!
in the event those posts are REAL, do not erase this post until they have a chance to read it.
also FORGOT one IMPORTANT THING:
FATHER AND SON SHOULD TELL EACH OTHER: (hint; 3 magic words)
- ---- ---!
frivolous said...
So Sean, what do you know about law since you claim Dad's a con??? Have you studied the UCC/Contract law/Administrative Procedures available? Have you personally tested the things that Kurt's done? I have successfully implemented these Administrative proceedures and have proven them to myself. So you're going to have to be a little more convincing than spouting off that Dad's a con and what he did was illegal.
First you thought the kid was a banker in disguise, and now after being validated you again question the kid.....
Just face the fact that you all are exactly what "Sean" summed up and the duo are toast. Stop finding an excuse or another angle to justify the fact that this is a train-wreck that will come to a stop next month with disasterous results for the duo and company.......
also;
if father takes step 1 and son doesnt take step 2, then fatehr is to just let it go and let son cool off and have time to digest fathers words.
son will not forget what father has said, and........in due time, those words will sink in and son will come around, but hurts take time to heal, sometims years, but THEY DO HEAL.
in the meantime, if son does not forgive immediatley, father can at least just be there for son if son needs him.
be there magnaminously. meaning, NEVER throw it up in sons face, and say, "see, i told you taht you would nedd me someday again."
just do it without wanting credit for it.
like NIKE says: just do it!
Mogel
"Again, I'm confused here again, if Mom has provided ALL OF THE CHILDREN'S NEEDS, what need is there for child support, other than an excuse to complain? "
You are kidding me right?
It was court ordered child suport that he was legally obligaed to pay.
It appears Mom sacrificed greatly because of the lack of support
You took Kurt's side on this Mogel?
Now I see what kind of a doucebag you are too
You guys that's not Kurt's son posting. Get a clue.
Hey Sean John, my bad bro...I guess you are Kurt's Son....Then you definately are cursing yourself....
The sad part is you think you are getting back at your dad by exposing his dirty laundry as you see it but actually your own bitterness is eating you up like a cancer.....Good luck with life buddy because if you keep it up you aint gonna live long. Unforgiveness is a killer.
(its still up in the air if you are truly kurt's son)
yo no, yo wont bleeve this, but i really fell bad fo you wife.
really do. she a nice schooldteahcer and now yo went and embarrass the sh*t out of her.
like i siad, i guess you must be the instrument to bring her the requried suffering. poor girl......
John David R. Atchison, 53, an assistant U.S. attorney from the northern district of Florida, was arraigned in U.S. District Court in Detroit Monday afternoon.
=========================
somewhere i bet dewey is smilin'.........
Sean said: "When this trial ends, I'll be "praying to the ol' mighty god" that you sit in a 9' by 9' cell, thinking about how all three of your kids, me, Shannon, and Ethan would enjoy seeing you get strapped up to the fryer seat and watch your flesh crisp up like breaded chicken."
__________________________________
How "cold" is that? Sounds like something Hitler would do or want done to his enemies, yet you attribute Hitler tendencies to your dad. Do you see the hypocrisy there? What makes you a righteous Judge? How are you any better?
You expect your father to visit you & be "warm" and loving, when you are as cold as you are & also in light of a "restraining order" that prevents him from visiting you legally. Either you want him to follow the law, or you don't. Which is it? Even you have mixed feelings or "mixed up feelings" about that. How f*cked up is that? One breath you criticize him in your alleged belief he isn't following the law, and when he does follow the law, you STILL CRITICIZE HIM. You are a child that presents a "no win" scenario or a "no solution" to the problems of the past, but you want to remain a Judge. How screwed up is it when a mother doesn't want her father to see her kids either? Obviously your Dad has gone out of his way to visit you out of State anyway, so your claims are baseless.
Sean, if you really knew how to pray to God, he would tell you, "Vengence is mine, & I will repay."
If you are indeed his son, and I believe you are, what gives you the right to speak for your other siblings, who haven't even bothered to speak on this blog, and what gives you the right to play God when it is obvious you have no love or little love in your heart whatsoever at the moment towards your Dad?
You can't wish your father dead & also on the other hand wish and require him to visit you. You sound like a person that can never be satisfied regardless of what is done for you or what is done to change the past, so what motivation is there to even try?
Yep, that's a solution, and VERY MATURE TO decide to never speak to your Dad EVER AGAIN. LOL
If your mother moved away to Arizona & filed a restraining order against your Dad, what part has she played in the alienation of your family? Some of the alientation caused by her is obvious even to an outsider. Is she totally guiltless? She must be in your mind since you haven't discussed the complete truth or even attempted to critize her too. Why is that?
How can you fault your Dad in business when what he did was nothing more or less than demanding to the lenders of the country to tell the full truth. Sean, obviously you can't tell the full truth yourself, so what credentials do you have to criticize your Dad? How much do you really know about "the Dorean process"? Do you want to punch me out too? Are you not a fair person? If you aren't, wouldn't it be reasonable to throw out everything you say as being extremely prejudicial?
Anyone can find fault. That's easy. Anyone can use their fists to qwell an argument. It doesn't take a real man to do that.
Those that remain apart from the crowd and take the road less traveled, are those that can find and present solutions to the existing problems. You've presented nor suggest any solution to the ills of your family unit. Until you can do that, you are just another "what about me" person, a dime a dozen, common and cheap & not special at all.
How comical that tycob finally comes out to post after being away so long & says "kind of indefensible isn't it", when he hasn't even heard the other side of the story or the full story. Another prejudicial idiot that wants to come to perceived truthful conclusions by only hearing one side of the story. LOL
When couples divorce, feelings get hurt, and bad feelings ensue, so what is so revelatory about that & what revelance does that have against the criminal charges?
Judge Roy Bean, wonder all you want! Let's use some logic here. The moderator lets you post, & doesn't delete your prejudical posts, so I highly doubt if anything is going to get deleted here on Sean's posting. If nothing gets deleted, & I believe that will be the case, this only proves once again that Kurt is only interested in full disclosure AS ALWAYS, an admirable & honest trait, that got him put in jail in the first place. Did Scott's EXE'S postings get deleted? No they did not!!! Can't you EVER BE FAIR or are you always so quick to throw out your own editorial crap as usual.
"FATHER AND SON SHOULD TELL EACH OTHER: (hint; 3 magic words)"
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You know, you can say those words, but those words are moot and irrelevant if the other party refuses to listen with their heart.
"If you want someone dead," it is obvious that they aren't in a healthy frame of mind to listen anyway so the verbal exercise is futile. The words will only be used as weapons against the other party.
I'm sure Kurt has said those words in many ways anyway already & done the best he could given the circumstances he was thrown into, but when you want to continually punish someone like Sean is doing, the object is not about reconciliation, but it's all about punishment. It's all about selfish Sean, and not about a blossoming and healing relationship of father and son.
yep. perty soon the whole econmy down the tubs.
banks close.
housing gone.
jobs nowehre.
govt. crooked as paper clap.
yep. just the way the AC want it so he can come in and take over.
even the OJ STORY doesnt make any sense. oj gonna go in with guns and take his stuff back?? hes gotta know that hes beeing wahcthed.
was he drugged up? did the peeple he was with set him up?
telling him they wuold go get the stuff back and not tell him they brought guns with them?
a lot fishy stuff with thsi story.
OJ aint no saitn by any means. but the story still doesnt make any sense unless he an idiot to do what they claim.
mogs,
you gotta rember, as christians we gotta do our part and let god do His.
step 1 shoudl be taken and let god worry about the rest.
a christians part is not incumbent on what the other party does.
a christian need to tcob his own business first.
what the other party does is his/gods business.
yeshua wont let you off the hook becasue of what someone else does/doesnt do.
its waht you do that counts.
they will account to god for they do, not to us.
"If you want someone dead," it is obvious that they aren't in a healthy frame of mind to listen anyway so the verbal exercise is futile.
================
its obvious that this party is very hurt; that why they say what they do.
father need to make the first move as i stated and in the way i stated.
The words will only be used as weapons against the other party.
============================
waht weapons????????????
let them use what they want.
waht happen to "no weapon used.....shall prosper" ???
just an idle verse??????
“Let nothing be done through strife or vainglory; but in lowliness of mind let each esteem other better than themselves. Look not every man on his own things, but every man also on the things of others.” (Philippians 2:3-4)
and even after all that i said to do, i did say that sometimes it will take years or decades, but there really is no other choice,
you cant force it, so do the right thing and let time pass; time is going to pass anyway, so might as well let it pass having done your part as a christian, and if gods will, he will put in theri hearts early forgiveness, and if not, then before we leave this planet, but better than nver at all.
rember, the HS give you the wisdom to do it, not you (or me)
Tycob said: "It was court ordered child suport that he was legally obligated to pay.
It appears Mom sacrificed greatly because of the lack of support"
__________________________________
Is it fair to be forced to pay child support and still be legally restrained from seeing YOUR OWN CHILDREN and then when you try to visit, all hell breaks loose?
You know in some States, that would be enough to stop the child support order when you are restrained from visitation rights. So no, Tycob, I'm not kidding at all.
Tycob, you know rights go BOTH WAYS. It's not a one sided thing like you believe.
Obviously ALL OF THE FACTS haven't been presented either, nor do I know all of the facts.
You don't think ALL PARTIES sacrifice greatly when a divorce takes place regardless of where the blame lies? Let God assign the blame. It's not all cut and dry, or black and white.
A sons's rantings has nothing to do with the criminal charges of the trial anyway. Is he a "victim" too according to the law? He's not even a client, even though a client isn't a "victim" according to the indictments either.
Just another angry person to reflect off of the relevant issues in the trial, assuming the trial even takes place which if the case gets dismissed soon, then, alot of naysayers in the end will have to say "I'm sorry." or "I was mistaken", " please forgive me". Course that even assumes they will even have the humility or the ability to even say those words when the time comes.
even those here who dont like neodims,
they forget about....
"you have heard about, 'an eye for an eye, tooth for a tooth', BUT, I say to you.....
"...love you enemies; bless those who spitfully use you and persecute you."
rember, you Father in heaven make it rain/sunshine on the just and the unjust.
and i dont know neodimes from a hole in the wall.
in the end, all christians will be united, as circumstances will be taht arguing pro/con dg etc. will become a moot point.
do people understand what is coming?????
rember, the toe yo step on today, may be connected to the *ss yo may have to kiss someday to survive.
so, if neodims dont like you, but someday he may have to kiss someone dg's *ss to survive, or someday maybe someone in dg may have to kiss neonickels *ss for food.
stranger things have happen.
god makes it work that way when we get too "puffed up" and we dont need anybody.
christian need to "hang toghter" or as say, "sure all hang separtely"
mogs,
rember also, son will account for EVERY idle word said to father.
and the commandment is true:
VERY DANGEROUS TO DISHONOR FATHER/MOTHER
"that your days may be long on this planet"
unfortunately, father would suffer more if sons days are shortened, but this verse is NOT TO BE TAKEN LIGHTLY.
see, god knows that right or wrong, FATHER/MOTHER PUT YOU HERE. RIGHT OR WRONG. DOESNT MATTER.
god knows this, otherwise the whold system breaks down with no respect for fa/mo
yo dis yo fa/mo, how yo gonna tell yo own kids to respect yo????
they wont, now yo in the same boat. see????
now yo own kids hate yo too.
what good is that????
see, god thawt of all these things before hand.......
A U.S. Justice Department official has been arrested on suspicion of traveling to Detroit over the weekend to have sex with a minor.
John David R. Atchison, 53, an assistant U.S. attorney from the northern district of Florida, was arraigned in U.S. District Court in Detroit Monday afternoon.
Can there be any doubt about the total corruption of our government by perverts in the Justice Department and other agencies. Are not Congresscritters also brought into conformity to corruption when they go to the parties in Washington? Is there not a brothel offered to congressmen? Is it any wonder that they will lie and steal and cheat for personal gain? Let's not fool ourselves anymore!
http://www.clickondetroit.com/
news/14132485/detail.html
Dear Sean:
I would be remiss if I did not at least address some of the thing you broached in you diatribe concerning your biological father. So I’ll speak from a fathers heart. There has not been a day that I as your grand father have not thought of you and you siblings. Likewise I wish to start out by stating that I love you and even though I know you not that means nothing concerning that love. I shan’t begin to go into the reasons why we do not know each other as I love all in your family and that has never changed. I am pleased that someone stepped in to become a loving male influence to your brother, sister, and you. Believe it or not that was and is an answer to my prayers. I likewise shan’t go into the many steps you’ve missed in your judgements concerning my son and his heart. There was many a time I as his father held him in my arms, as he cried bitterly not know whether his decisions were correct or not concerning your mother and you children. I shall tell you would to God things had been different and but it is too late to be both angry and bitter about the passed missed opportunities. I’ll bet you do not remember when a very close friend and I flew to see you and spend some days with you small children. And the hurt look that was on both your mom’s face and mind as she stood my car asking if we were going to retune you children after our visit. It broke my heart that I had to be asked that question. You may ask why as she would call me to come visit her while you were still in the womb to rub and massage her feet, do you think there was no love there? Ask your brother how many times he remembers spending the day with me and going off to New Jersey for 2 weeks and the fun we had just hanging out. You also wouldn’t remember that I for a rather long time was your baby sitter and got to hang with all of you. Do you think your mother would trust you guys with me if she thought I did not love you or that she did not love me? You will not remember that I took you all to dinner whilst you were just perhaps 21/2 years old and you made a royal mess in your pants nearly from head to toe. I took you to the restroom and washed you in the sink and you clothing which I dried under the hand drier. Even those were good times. Are there things I would like the chance to say I’m sorry for? You bet! This is not the milieu for that to happen thus it shall await another day and place. Perhaps one day you’ll give me the opportunity. As that has and was never given in the passed. You have formed many strong opinions at your young years, and I for certain know one thing they will change, as you grow older. I pray that mercy and grace overtake your heart and push out all the anger and disappointment that can and does cloud our judgement and the real truth of ever circumstance. I too have been a stepfather twice and have wonderful relationships to this day with them both. I shall be talking with one of them as soon as I complete this communiqué with you. I would that you would consider talking directly with me and that means even if it’s just to tell me off, perhaps that too would release some of the anger and disappointment. Nevertheless even if love is unrequited I do and shall love you until the day they throw dirt on my face. That is true concerning your Mom, Brother, and Sister.
God bless you and those you love!
Grand Father Fred
Alex G. MERKLINGER, Defendant-Appellant.
No. 93-5362.
United States Court of Appeals,
Sixth Circuit.
Argued Dec. 10, 1993.
Decided Feb. 3, 1994.
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Dan Newsom, Asst. U.S. Atty. (briefed), Jennifer L. Webber (argued), Office of the U.S. Atty., Memphis, TN, and Daniel A. Clancy, Asst. U.S. Atty., Office of the U.S. Atty., Jackson, TN, for plaintiff-appellee.
Patrick F. Martin (briefed) and Rayna Hardee Bomar (argued), Hardee & Martin, Jackson, TN, for defendant-appellant.
Before: JONES, Circuit Judge; BROWN, Senior Circuit Judge; and WEBER, District Judge. *
NATHANIEL R. JONES, Circuit Judge.
Defendant-Appellant Alex G. Merklinger appeals his conviction on seven counts of various acts of fraud and false statements. We find that the trial court erred in construing the statute that was at issue in one count, and that the evidence was insufficient to support a conviction on several other counts. However, we affirm the jury verdict on the remaining counts. This disposition does not affect Merklinger's sentence, and so we remand only in order for the lower court to revise its Entry of Judgment in accordance with this decision.
I. Facts
At the outset, a brief description of bonding requirements for bidding on government projects is in order. A contractor submitting a bid on a government project is usually required to post a performance bond, which guarantees that the work will be completed at the bid price. Similarly, once a contract has been awarded, the contractor is usually required to post a payment bond, which
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guarantees that all bills for labor, materials, and equipment will be paid. These bonds are issued by a surety in return for a percentage fee. Because the surety fee is included as part of the contractor's bid, the surety fee is actually paid by the government.
In this case, according to two written statements signed by Defendant: (1) between September 1987 and April 1988, Defendant signed approximately one hundred "Affidavit of Individual Surety" forms that contained fraudulent asset figures that vastly inflated Defendant's net worth, for the purpose of inducing various government agencies to accept him as surety on government contracts; and (2) on January 4, 1989, knowing that he lacked any ability to pay $2 million, Defendant signed a letter of credit for $2 million, addressed to the officer in charge of construction at the Naval Facilities Engineering Command in Pearl Harbor, Hawaii, for the purpose of qualifying as a surety on a government funded project.
Defendant was indicted in February 1992, on eight counts. Counts 1, 3, 5, and 6 charged Defendant with mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. Secs. 1341, 2. Counts 2 and 4 charged him with wire fraud and aiding and abetting wire fraud in violation of 18 U.S.C. Secs. 1343, 2. Count 7 charged him with making false statements, and aiding and abetting the making of false statements, to an agency of the United States in violation of 18 U.S.C. Secs. 1001, 2. Count 8 charged him with falsely making guarantee, and aiding and abetting the false making of guarantee, pertaining to bond to an officer of the United States in violation of 18 U.S.C. Secs. 494, 2.
Trial was held in December 1992. The evidence indicated that Defendant attempted to become surety for several projects, and succeeded at becoming surety for at least one project. 1 Defendant testified that, although he signed the two incriminating written statements, they were not true. The jury found Defendant guilty on all counts. The trial court found that the offense charged in Count 7 was a lesser included offense of that charged in Count 8, so it acquitted Defendant of Count 7. The court sentenced Defendant to 37 months on each of the remaining counts, to run concurrently, and to be followed by three years of supervised release, and fined him $6,000. This appeal followed.
II. Discussion
A.
Defendant asked the trial court to instruct the jury that forgery was an element of Sec. 494, and the court declined to do so. Defendant contends on appeal that this was an error, and that 18 U.S.C. Sec. 494, the statute that gave rise to Count 8, requires an element of forgery. 2 The question presented
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is one of statutory interpretation, which we review de novo. United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990) ("A district court engages in statutory construction as a matter of law, and we review its conclusions de novo."). We agree with Defendant that Sec. 494 requires an element of forgery, and that the trial court erred as a matter of law.
Section 494 criminalizes the acts of false making, altering, forging, or counterfeiting for the purpose of defrauding the United States. In the present case, no one accuses Defendant of altering, forging, or counterfeiting. Rather, in oral argument, the prosecutor suggested that Defendant's false statements to the government fall within the scope of the term, "falsely makes," as used in Sec. 494. However, the government's implication--that the term, "falsely makes," applies to false statements in a genuinely executed document--betrays a misunderstanding of the historic use of this term. At English common law, the term, "false making," was used as an elucidation of the concept of forgery, and the two terms have been substantially synonymous for centuries. See, e.g., 2 East, Pleas of the Crown, 852 (1803) ("Forgery at common law denotes a false making"); 1 Hawkins, Pleas of the Crown, c. 70, Sec. 2, at 182-83 (1762); 4 Blackstone, Commentaries 247-48 (Christian ed. 1809). See generally Gilbert v. United States, 370 U.S. 650, 655-57, 82 S.Ct. 1399, 1402-03, 8 L.Ed.2d 750 (1962) (explaining English common law understanding of "forgery"); Moskal v. United States, 498 U.S. 103, 121-26, 111 S.Ct. 461, 472-74, 112 L.Ed.2d 449 (1990) (Scalia, J., dissenting) (reviewing the use of the term, "falsely made," in law dictionaries, statutes, caselaw, and scholarly commentaries, all of which establish that the term is an essential element of forgery, and does not embrace false contents of a genuinely executed document). The Gilbert Court noted that federal courts have tended to follow the English common law understanding of forgery when construing the word "forge" under federal statutes. 370 U.S. at 658, 82 S.Ct. at 1403-04. As stated in United States v. Wentworth, 11 F. 52, 55 (D.N.H.1882):
To falsely make an affidavit is one thing; to make a false affidavit is another. A person may falsely make an affidavit, every sentence of which may be true in fact. Or he may make an affidavit, every sentence of which shall be false. It is the "false making" which the statute makes an offence, and this is forgery as described in all the elementary books.
See also Greathouse v. United States, 170 F.2d 512, 514 (4th Cir.1948) ("The words, 'falsely made, forged, altered, or counterfeited' in the collocation in which they appeared are ejusdem generis and are usually employed to denounce the crime of forgery. Indeed it may be said that when used in an association of this kind the words 'falsely made' and 'forged' are substantially synonymous.").
Once one understands that the term "falsely makes" is synonymous with forgery, it becomes clear that there is no language in Sec. 494 that applies to false statements in a genuinely executed document. See, e.g., United States ex rel. Starr v. Mulligan, 59 F.2d 200, 202 (2d Cir.1932) (stating that in all of the cases construing former 18 U.S.C. Sec. 72, the predecessor to Sec. 494, "the fraud was perpetrated by means of forgery. We think it clear that [Sec. 72] must be so limited."); compare Sec. 494 (criminalizing the act of falsely making statements in order to defraud the United States) with 18 U.S.C. Sec. 1001 (criminalizing the act of making false statements to the United States). 3 But see Moskal, 498 U.S. at 106-18, 111 S.Ct. at 464-
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70 (holding that, as used in 18 U.S.C. Sec. 2314, the term "falsely made" applies to genuinely executed securities containing false or incorrect information). 4
The parties in the present case did not discuss the traditional distinction between falsely making a statement, and making a false statement, and they apparently overlooked Mulligan. Instead, Defendant relied on United States v. Wright, 704 F.Supp. 613, 614 (D.Md.1989), which held that Sec. 494 is not applicable to documents that were not forged. The government cited to another district court case, United States v. Gowdy, 37 F. 332 (E.D.S.C.1889), which came to the opposite conclusion. Rather than choosing between two contradictory district court cases, the trial court in the present case decided instead to rely on United States v. Staats, 49 U.S. (8 How.) 41, 12 L.Ed. 979 (1850).
In Staats, the Supreme Court construed a predecessor statute to 18 U.S.C. Sec. 495, which contained much, but not all, of the language used in Sec. 494 and its predecessors. 5 The
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Court held that "[t]he instruments referred to in the first part of the section, the false making or forging of which, with the intent stated, is made an offence, probably are forged instruments in a strict technical sense." Id. (8 How.) at 46. However, the Court reasoned that the third clause of the statute--the one pertaining to "transmission or presentation of deeds or other writings to an officer of the government"--had a much broader scope:
The deeds and other writings mentioned are not connected with those in the preceding paragraph, as would have been natural, and almost of course, if intended to describe similar instruments.... The clause, therefore, may well be regarded as providing for a distinct and independent offence,--one essential to the protection of the government against fraudulent claims.
Id. (8 How.) at 47. Thus, the third clause of the statute applied to genuine instruments containing false statements, as well as to forged instruments.
The Supreme Court revisited this language in United States v. Davis, 231 U.S. 183, 188, 34 S.Ct. 112, 112-13, 58 L.Ed. 177 (1913), 6 reaching the same result:
Coming to the text of the third paragraph, we think it is at once apparent that its provisions are so comprehensive as to prevent us from holding that they include only documents which are forged or counterfeited and hence exclude all other documents, however fraudulent they may be.... The context of the section reinforces this view, since the contrast between the narrow scope of the first two paragraphs and the enlarged grasp of the third shows the legislative intent, after fully providing in the first two paragraphs for forged and counterfeited documents, instruments, etc., to reach by the provisions of the third paragraph, any and all fraudulent documents, whether forged or not forged.
In Mulligan, 59 F.2d at 201, the Second Circuit also had occasion to construe the predecessor to Sec. 495. 7 The indictment alleged that the relator violated the statute when, with fraudulent intent, he "uttered and published" false statements to the Civil Service Commission. Id. The indictment did not allege any act of forgery. Id. Relying on Staats and Davis, the court pointed out that:
It has been authoritatively established that the first clause is limited to the false making, that is, the forging, of writings, while the third clause includes not only forgeries, but also writings genuine in execution but false in statements of fact they contain.
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Id. The court found, however, that the only clause of the statute that was at issue was the second clause. Id. The court held that the second clause, like the first, applied only to forgery:
But, to bring the relator's conduct within the denunciation of clause 2, that clause must be given an interpretation as broad as that of clause 3 in respect to the false writings enumerated in each. To do this necessitates disregarding the word "such," inserted in the second and omitted in the third clause. The presence of "such" limits the scope of the second clause to such writings as are described in clause 1.
Id.
According to the trial court in the present case, the statute at issue in Staats "contained language virtually identical to that in Sec. 494 and its predecessors." J.A. at 25. This statement is incorrect, and the difference in language between the statute construed in Staats, Davis, and Mulligan, and Sec. 494 is of key importance to the present issue. Unlike the predecessors to Sec. 495 that were discussed in Staats, Davis, and Mulligan, the third clause to Sec. 494 and its predecessors has always included the word "such": "Whoever transmits to, or presents at any office or to any officer of the United States, any such false, forged, altered, or counterfeited writing...." 8 As per Mulligan, the presence of the word "such" in both the second and third clauses of Sec. 494 "limits the scope of the [clauses] to such writings as are described in clause 1." 59 F.2d at 201. Accordingly, as per Staats, Davis, and Mulligan, these writings only include forged, altered, or counterfeited documents.
Therefore, the Supreme Court's holding in Staats--that the third clause of the predecessor to Sec. 495 applies to genuinely executed documents containing false statements as well as to forged documents--is not applicable to Sec. 494 or its predecessors. 9 It follows that the trial court erred by applying this aspect of Staats to the present case. 10
B.
Because Defendant was not accused of forgery, but only of making false statements in documents that Defendant genuinely executed, 11 Count 8, which charged that Defendant violated Sec. 494, should have been dismissed. However, the trial court made a second error in construing Sec. 494, and it happens that the second error repaired whatever damage was caused by the court's first error. This is a situation in which two wrongs did indeed make a right. Even though neither party raises this error as an issue on appeal, we address it sua sponte.
The jury found Defendant guilty on all counts, including Count 7, which charged Defendant with violating Sec. 1001. The trial court dismissed Count 7, however, holding that Sec. 1001 was a lesser included offense of Sec. 494:
The Sec. 1001 offense requires: 1) a false statement or writing, 2) knowledge of the statement or writing's falsity, and 3) that the false statement or writing regard a matter within the jurisdiction of a department or agency of the United States. The
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relevant paragraph of Sec. 494 requires: 1) a false writing, 2) knowledge of the writing's falsity, and 3) presentation of the false writing to an office or officer of the United States.... Therefore, as Sec. 1001 requires proof of no fact that is not also required by Sec. 494, it constitutes a lesser included offense of Sec. 494.
J.A. at 27. However, as discussed in the preceding section, the trial court misstated the elements of Sec. 494. Section 494 applies only to forged, altered, or counterfeited documents, regardless of whether the statements therein are true or false, while Sec. 1001 applies to false statements, regardless of whether the statements are made in a forged or genuinely executed document. The two offenses are, then, entirely separate, and the trial court erred by dismissing Count 7.
Therefore, the trial court should have dismissed Count 8 and not Count 7. The trial court applied Sentencing Guideline Sec. 2F1.1 in calculating Defendant's sentence for Count 8. See United States Sentencing Commission Guidelines Manual, Appendix A (directing courts to apply Sec. 2F1.1 to violations of 18 U.S.C. Sec. 494). This is precisely the guideline that the court should have applied to violations of Sec. 1001. See Appendix A. This guideline "is designed to apply to a wide variety of fraud cases." U.S.S.G. Sec. 2F1.1, comment (background).
It follows that Defendant's sentence on Count 8--37 months followed by three years of supervised release--would have been just as appropriate as a sentence for Count 7 had the trial court not erred regarding Sec. 494 at all. Therefore, although we remand for revision of the Entry of Judgment, we find no need to remand for resentencing.
C.
The trial court granted the government's motion in limine preventing Defendant from introducing evidence to show that he had previously been acquitted of similar charges in a prior case. Defendant contends that he had made admissions to investigators because he was despondent, and that the previous acquittal was relevant to his state of mind. The court ruled that Defendant could present evidence that he had been through previous criminal litigation, but could not mention the verdict, holding that there was no logical connection between the favorable verdict and Defendant's alleged despondency. The court also found that evidence of the favorable verdict could confuse the jury.
"The exclusion of evidence on the grounds of relevancy is within the discretion of the district court," and a reviewing court will reverse only for abuse of discretion. United States v. Williams, 952 F.2d 1504, 1519 (6th Cir.1991). We find ample basis for the trial court's ruling on this issue, and so find no abuse of discretion.
D.
Defendant contends that the evidence was insufficient to support the jury verdict. According to United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992):
The relevant inquiry when reviewing claims of insufficient evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Circumstantial evidence and direct evidence are accorded the same weight and "the uncorroborated testimony of an accomplice may support a conviction under federal law." United States v. Frost, 914 F.2d 756, 762 (6th Cir.1990) (quoting United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986). Therefore, we will reverse a judgment for insufficiency of evidence only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence. [United States v.] Ellzey, 874 F.2d [324,] 328 [ (6th Cir.1989) ].
Defendant offers five arguments in support of his claim that the evidence against him was insufficient. The first of these arguments is that the evidence was insufficient as to Count 8 because there was no proof of forgery; we have already explained why we
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agree. As for the four remaining arguments, one has merit, and so we set aside Defendant's convictions on four of the eight counts, (including Count 8).
1.
Defendant argues that the evidence failed to show that the alleged victims of mail and wire fraud relied on the mailings and wire transmissions that were the subject of Counts 1-4 and 6. Apparently, the government does not disagree that it did not prove reliance; the issue is whether such reliance is indeed an element of mail and wire fraud.
To support a conviction for mail fraud, 18 U.S.C. Sec. 1341, 12 the government must prove: (1) the existence of a scheme to defraud, (2) which involves the use of the mail, or of wire transmissions, (3) for the purpose of executing the scheme. United States v. Castile, 795 F.2d 1273, 1277-78 (6th Cir.1986). To support a conviction for wire fraud, 18 U.S.C. Sec. 1343, 13 the government must prove: (1) the existence of a scheme to defraud, (2) use of wire communications in furtherance of the scheme, and (3) that the scheme was intended to deprive a victim of money and property. United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir.1990).
Reliance is not an element of either of these types of fraud. Indeed, Defendant expressly recognizes that the mail and wire fraud statutes do not require proof that the intended victim was actually defrauded; the actual success of a scheme to defraud is not an element of either Sec. 1341 or Sec. 1343. Ames Sintering Co., 927 F.2d at 235; United States v. Hathaway, 798 F.2d 902, 912 (6th Cir.1986); United States v. Goodpastor, 769 F.2d 374, 378-79 (6th Cir.), cert. denied, 474 U.S. 983, 106 S.Ct. 391, 88 L.Ed.2d 343 (1985). This implies that reliance is not an element of mail or wire fraud.
The authorities cited by Defendant in support of his claim to the contrary are cases in which a private plaintiff alleged mail fraud in a civil suit; while it is true that such plaintiffs must prove reliance in order to recover damages, it does not follow that the government must prove reliance in order to convict a mail fraud defendant. Thus, Defendant's argument is without merit.
2.
Next, Defendant argues that the government failed to present any evidence that the mail and wire transmissions underlying Counts 1, 3, 4, and 6 were used to further Defendant's scheme to defraud. Rather, he contends, the purpose of the mailings and transmissions, far from promoting the scheme, positively conflicted with it by making it easier to detect. We agree with Defendant regarding Counts 1, 3, and 6, but not with regard to Count 4.
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Defendant relies on Castile, 795 F.2d at 1278-81. In Castile, the defendant schemed to burn down his restaurant in order to collect insurance proceeds. The government argued that the defendant's conduct caused the insurance company to mail inquiries to the defendant, which formed the basis for several counts of mail fraud against defendant. The court acknowledged that the government proved the first two elements of mail fraud, namely that defendant did scheme to defraud the insurance company, and that his conduct did cause the insurance company to use the mail. Id. at 1278 (quoting Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954) (holding that one "causes" mail to be used where one "does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended.")). However, the court held that the government had not proven the third element, that the uses of the mail by the insurance company were "for the purpose of executing the scheme." Id. The mailings furthered the company's investigation, rather than furthering the defendant's scheme; they were an attempt to procure evidence that would tend to defeat the fraudulent scheme, and so conflicted with the defendant's purpose. Id. at 1279-80. Therefore, the court held that the evidence was insufficient to sustain the defendant's conviction for mail fraud. Id. at 1281.
In the present case, the mailing that formed the basis of Count 1 was a letter from a government official, Navy Contracts Specialist Jane Nishiguchi, requesting more information to aid her in determining whether Defendant qualified as a surety. The wire communication that formed the basis of Count 2 was Defendant's response. The mailing that formed the basis of Count 3 was Nishiguchi's request for more information and for an extension of time to make her determination on Defendant's qualifications. The wire communication that formed the basis of Count 4 was Defendant's granting Nishiguchi's request for an extension of time. The mailing that formed the basis of Count 6 was a letter from Charles Beckner, a co-owner of one of the contractors for which Defendant was attempting to serve as surety, requesting additional information about Defendant from a third party insurance company.
The two mailings from Nishiguchi were clearly in furtherance of the government's investigation in order to defeat any fraudulent scheme, and so were in conflict with Defendant's scheme. Similarly, the letter from Beckner was part of an investigation of Defendant, and was not in furtherance of Defendant's scheme. That is, these three mailings were no different than the insurance company's mailings in Castile. As per Castile, then, these three mailings cannot properly be used as a basis for charges of mail fraud. Therefore, Defendant's conviction on Counts 1, 3, and 6 must be set aside.
On the other hand, the two wire transmissions from Defendant to Nishiguchi clearly were in furtherance of Defendant's scheme. Defendant argues that granting the request for an extension furthered the government's investigation. That may be true, but it also kept Defendant's scheme alive insofar as denying the request would probably have resulted in Defendant's being rejected as a surety. Therefore, we affirm Defendant's conviction on Count 4.
Setting aside Defendant's conviction on three counts does not affect Defendant's sentence. The trial court sentenced Defendant to the same sentence for each of the seven counts on which he was convicted, each sentence to run concurrently. Thus the sentence would remain unchanged even if the panel were to affirm Defendant's conviction on only one count.
3.
Defendant contends that the government failed to prove beyond a reasonable doubt that Defendant had the requisite intent to deceive. Defendant's claims that he misstated his net worth in his Affidavit of Individual Surety forms inadvertently, that he was merely negligent. It is clear, however, that the jury did not believe Defendant's testimony in this regard, and there was ample evidence presented from which a rational jury could infer fraudulent intent, not the
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least of which were Defendant's own written statements admitting fraudulent intent. This contention is without merit.
4.
Finally, Defendant contends that the government failed to prove beyond a reasonable doubt that Beckner actually mailed the letter that formed the basis of Count 6. Because we are setting aside Defendant's conviction for Count 6 on other grounds, this issue is moot. However, even if it were not moot, the contention is meritless. Defendant focuses on the fact that one of the witnesses was not certain whether he received the letter via fax or via mail. Defendant disregards, however, Beckner's own testimony, in which he expresses no doubt that the letter was mailed.
III. Conclusion
For the foregoing reasons, we set aside Defendant's convictions on Counts 1, 3, 6, and 8, reverse the district court's ruling on Counts 7 and 8, affirm the jury's verdict on Counts 2, 4, 5, and 7, and remand in order for the district court to revise its Entry of Judgment accordingly. Defendant's sentence remains unchanged.
---------------
* The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.
1 There were at least four projects for which Defendant attempted to serve as surety: (1) the Pelham Line Rehabilitation Project for the New York City Transit Authority, with contractor American Bridge Company; (2) the Mississippi River Dredging Project for the Army Corps of Engineers, with contractor Bean Dredging; (3) the Johnson Island Project for the United States Navy, with contractor Cascade Leasing; and (4) the Glenville Illinois project, also for the Navy, with contractor Pyramid Industries of Riverdale. Defendant was successful in this last project, and in October 1987, Pyramid Industries defaulted. Defendant then became responsible for completing the project. Various lawsuits were filed against Defendant and his wife, who declared bankruptcy in June 1990. Their total unencumbered assets were worth about $13,000. Unsecured creditors had claims totaling $5,720,665, apparently relating to the Pyramid default.
The indictment alleges that, between May 1987 and June 1989, Defendant was approved as surety on more than fourteen government contracts having a value of more than $39,000,000, generating fees of more than $885,000. Apparently, this was not proved at trial and is not re-alleged in the briefs on appeal.
2 Section 494 provides:
Whoever falsely makes, alters, forges, or counterfeits any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or
Whoever utters or publishes as true or possesses with intent to utter or publish as true, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited; or
Whoever transmits to, or presents at any office or to any officer of the United States, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited--
Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.
The original version of Sec. 494 was passed in 1866, and a substantially identical version was passed in 1872. These two acts were codified at U.S.Rev.Stat. Secs. 5418 and 5479 respectively. In 1909, the two statutes were recodified as a single statute at 18 U.S.C. Sec. 72. The statute took its present form in 1948, when it was revised slightly, and recodified at Sec. 494.
3 Section 1001 provides:
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, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
4 In Moskal, the Court held that, were it to limit its interpretation of the term "falsely made," as used in Sec. 2314, to exclude genuinely executed documents that are false only in content, it would "not accord with Congress' broad purpose in enacting Sec. 2314--namely, to criminalize trafficking in fraudulent securities that exploits interstate commerce." 498 U.S. at 117, 111 S.Ct. at 470. Finding that it was more important to realize "Congress' general purpose" in enacting Sec. 2314 than it was to apply the common law meaning of the statute's terms, the Court declined to interpret the term, "falsely made," as it is used in Sec. 2314, in the way that it was usually interpreted at common law. Id.
This reasoning is inapplicable to Sec. 494 in the present case. Congress explicitly criminalized the act of making false statements to the United States in a genuinely executed document in an entirely separate statute. See 18 U.S.C. Sec. 1001 (quoted in note 3, supra). Thus, no overriding Congressional purpose would be served by interpreting the term "falsely makes," as it is used in Sec. 494, in a manner that departs from its common law meaning.
The Moskal Court also found that three lower courts had previously held that the term, "falsely made," applied to genuinely executed documents containing false statements. Id. 498 U.S. at 115, 111 S.Ct. at 469 (citing United States v. Hartman, 65 F. 490 (E.D.Mo.1894); State v. Shurtliff, 18 Me. 368 (1841); and In re Count de Toulouse Lautrec, 102 F. 878 (7th Cir.1900)). From this, the Court concluded that the term was ambiguous at common law. Id. The Court recognized, however, that most courts have interpreted the term to exclude documents that were false only in content. Id. The dissent in Moskal explained that of these three cases, only Hartman actually discussed falsity of content; the other two involved only documents that were not genuinely executed. Id. 498 U.S. at 128-29, 111 S.Ct. at 476 (Scalia, J., dissenting). It pointed out that the Gilbert Court specifically rejected the few scattered cases like Hartman that have applied the term "falsely made," to genuinely
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executed documents containing false statements. Id. (citing 370 U.S. at 658, 82 S.Ct. at 1404). See also United States v. Davis, 231 U.S. 183, 189, 34 S.Ct. 112, 113, 58 L.Ed. 177 (1913) (interpreting "falsely makes," as used in predecessor statute to 18 U.S.C. Sec. 495, to be synonymous with forgery); United States v. Staats, 49 U.S. (8 How.) 41, 46, 12 L.Ed. 979 (1850) (same). (It is worth noting that Sec. 494 more closely resembles Sec. 495 than it does Sec. 2314).
In light of Gilbert, Davis, and Staats, as well as the overwhelming majority of cases and commentators that have held or assumed that "false making" is substantially synonymous with forgery, we believe that Moskal's understanding of the application of the term, "falsely made," as used in Sec. 2314, is not applicable to other statutes, such as Secs. 494 or 495, where departing from the term's common law meaning would not serve any overriding Congressional purpose. If we were to interpret Moskal more broadly than this, we would have to regard Moskal as implicitly overruling Gilbert, Davis, and Staats, which presumably is something that the Moskal Court did not intend to do.
5 The statute at issue in Staats provided:
That if any person or persons shall falsely make, alter, forge, or counterfeit; or cause or procure to be falsely made, altered, forged, or counterfeited; or willingly aid or assist in the false making, altering, forging, or counterfeiting, any deed, power of attorney, order, certificate, receipt, or other writing, for the purpose of obtaining or receiving, or of enabling any other person or persons, either directly or indirectly, to obtain or receive, from the United States, or any of their officers or agents any sum or sums of money;
or shall utter or publish as true, or cause to be uttered or published as true, any such false, forged, altered, or counterfeited deed, power of attorney, order, certificate, receipt, or other writing as aforesaid, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited;
or shall transmit to, or present at, or cause or procure to be transmitted to, or presented at, any office or officer of the government of the United States, any deed, power of attorney, order, certificate, receipt, or other writing, in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited;
every such person shall be deemed and adjudged guilty of felony, and being thereof duly convicted, shall be sentenced to be imprisoned and kept at hard labor for a period not less than one year, nor more than ten years; or shall be imprisoned not exceeding five years, and fined not exceeding one thousand dollars.
49 U.S. (8 How.) at 41-42 (quoting the Act of March 3d, 1823, 3 Stat. at L., 771, 772) (numerals and paragraph divisions added). Originally, this Act was codified as U.S.Rev.Stat. Sec. 5421. In 1909, it was recodified as 18 U.S.C. Sec. 73. It was slightly revised when it took its current form, as 18 U.S.C. Sec. 495, in 1948.
In United States v. Gowdy, 37 F. 332 (E.D.S.C.1889), the court purported to apply the holding of Staats to Sec. 5479, a predecessor statute to Sec. 494, the statute at issue in the present case. However, the Gowdy court was under the misapprehension that Staats involved the very same statute, the Act of March 3d, 1823. The fact is, Gowdy involved the Act of June 8, 1872, a different statute altogether. As discussed below, the holding of Staats is inapplicable to Sec. 494 and its predecessors.
6 Apparently, the trial court and the parties in the present case missed Davis entirely. The court incorrectly stated that Staats "is the only decision of the Supreme Court interpreting the language contained in 18 U.S.C. Secs. 494 & 495." J.A. at 26. As in Staats, the Davis Court was primarily concerned with construing U.S.Rev.Stat. Sec. 5421, the predecessor to 18 U.S.C. Sec. 495, but the Court also mentioned U.S.Rev.Stat. Sec. 5479, which was a predecessor to Sec. 494, the statute at issue in the present case. The trial court in Davis treated Secs. 5421 and 5479 "as embracing only documents which were forged and counterfeited," and not documents that "were merely false and fraudulent, but not forged." 231 U.S. at 187, 34 S.Ct. at 112. The government conceded that the trial court was correct regarding Sec. 5479. Id. Thus, the only issue before the Supreme Court was the trial court's construction of Sec. 5421.
7 As of 1909, this statute was codified as 18 U.S.C. Sec. 73. See supra note 5.
8 (Emphasis added). This explains why, in Davis and Mulligan, the predecessor statutes to Sec. 494 were treated differently than the predecessors to Sec. 495.
9 Interestingly, as of 1948, this holding was no longer applicable to Sec. 495 either. In that year, Congress revised the statute by adding the word "such" to its third clause, thereby effectively overruling Staats as to future applications of the statute to genuinely executed documents containing false statements. At the same time, Congress also passed Sec. 1001, which provided that making false statements with intent to defraud the United States was a separate criminal offense. This section rendered the broad scope of the former third clause of the predecessors to Sec. 495 unnecessary.
10 The case upon which Defendant relies, Wright, 704 F.Supp. at 614, reaches the correct result without going through the reasoning applied here. The Wright court did not address Staats or other cases construing Sec. 495 and its predecessors, but rather relied upon Greathouse v. United States, 170 F.2d 512 (4th Cir.1948), which construed similar language appearing in 18 U.S.C. Sec. 2314.
11 Some of the evidence presented at trial suggests that Defendant committed acts of forgery, too, but the government chose not to charge Defendant for these alleged acts.
12 Section 1341 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
13 Section 1343 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.Page 670
16 F.3d 670
39 Cont.Cas.Fed. (CCH) P 76,622, 1994 Fed.App. 32P
UNITED STATES of America, Plaintiff-Appellee,
v.
Alex G. MERKLINGER, Defendant-Appellant.
No. 93-5362.
United States Court of Appeals,
Sixth Circuit.
Argued Dec. 10, 1993.
Decided Feb. 3, 1994.
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Dan Newsom, Asst. U.S. Atty. (briefed), Jennifer L. Webber (argued), Office of the U.S. Atty., Memphis, TN, and Daniel A. Clancy, Asst. U.S. Atty., Office of the U.S. Atty., Jackson, TN, for plaintiff-appellee.
Patrick F. Martin (briefed) and Rayna Hardee Bomar (argued), Hardee & Martin, Jackson, TN, for defendant-appellant.
Before: JONES, Circuit Judge; BROWN, Senior Circuit Judge; and WEBER, District Judge. *
NATHANIEL R. JONES, Circuit Judge.
Defendant-Appellant Alex G. Merklinger appeals his conviction on seven counts of various acts of fraud and false statements. We find that the trial court erred in construing the statute that was at issue in one count, and that the evidence was insufficient to support a conviction on several other counts. However, we affirm the jury verdict on the remaining counts. This disposition does not affect Merklinger's sentence, and so we remand only in order for the lower court to revise its Entry of Judgment in accordance with this decision.
I. Facts
At the outset, a brief description of bonding requirements for bidding on government projects is in order. A contractor submitting a bid on a government project is usually required to post a performance bond, which guarantees that the work will be completed at the bid price. Similarly, once a contract has been awarded, the contractor is usually required to post a payment bond, which
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guarantees that all bills for labor, materials, and equipment will be paid. These bonds are issued by a surety in return for a percentage fee. Because the surety fee is included as part of the contractor's bid, the surety fee is actually paid by the government.
In this case, according to two written statements signed by Defendant: (1) between September 1987 and April 1988, Defendant signed approximately one hundred "Affidavit of Individual Surety" forms that contained fraudulent asset figures that vastly inflated Defendant's net worth, for the purpose of inducing various government agencies to accept him as surety on government contracts; and (2) on January 4, 1989, knowing that he lacked any ability to pay $2 million, Defendant signed a letter of credit for $2 million, addressed to the officer in charge of construction at the Naval Facilities Engineering Command in Pearl Harbor, Hawaii, for the purpose of qualifying as a surety on a government funded project.
Defendant was indicted in February 1992, on eight counts. Counts 1, 3, 5, and 6 charged Defendant with mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. Secs. 1341, 2. Counts 2 and 4 charged him with wire fraud and aiding and abetting wire fraud in violation of 18 U.S.C. Secs. 1343, 2. Count 7 charged him with making false statements, and aiding and abetting the making of false statements, to an agency of the United States in violation of 18 U.S.C. Secs. 1001, 2. Count 8 charged him with falsely making guarantee, and aiding and abetting the false making of guarantee, pertaining to bond to an officer of the United States in violation of 18 U.S.C. Secs. 494, 2.
Trial was held in December 1992. The evidence indicated that Defendant attempted to become surety for several projects, and succeeded at becoming surety for at least one project. 1 Defendant testified that, although he signed the two incriminating written statements, they were not true. The jury found Defendant guilty on all counts. The trial court found that the offense charged in Count 7 was a lesser included offense of that charged in Count 8, so it acquitted Defendant of Count 7. The court sentenced Defendant to 37 months on each of the remaining counts, to run concurrently, and to be followed by three years of supervised release, and fined him $6,000. This appeal followed.
II. Discussion
A.
Defendant asked the trial court to instruct the jury that forgery was an element of Sec. 494, and the court declined to do so. Defendant contends on appeal that this was an error, and that 18 U.S.C. Sec. 494, the statute that gave rise to Count 8, requires an element of forgery. 2 The question presented
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is one of statutory interpretation, which we review de novo. United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990) ("A district court engages in statutory construction as a matter of law, and we review its conclusions de novo."). We agree with Defendant that Sec. 494 requires an element of forgery, and that the trial court erred as a matter of law.
Section 494 criminalizes the acts of false making, altering, forging, or counterfeiting for the purpose of defrauding the United States. In the present case, no one accuses Defendant of altering, forging, or counterfeiting. Rather, in oral argument, the prosecutor suggested that Defendant's false statements to the government fall within the scope of the term, "falsely makes," as used in Sec. 494. However, the government's implication--that the term, "falsely makes," applies to false statements in a genuinely executed document--betrays a misunderstanding of the historic use of this term. At English common law, the term, "false making," was used as an elucidation of the concept of forgery, and the two terms have been substantially synonymous for centuries. See, e.g., 2 East, Pleas of the Crown, 852 (1803) ("Forgery at common law denotes a false making"); 1 Hawkins, Pleas of the Crown, c. 70, Sec. 2, at 182-83 (1762); 4 Blackstone, Commentaries 247-48 (Christian ed. 1809). See generally Gilbert v. United States, 370 U.S. 650, 655-57, 82 S.Ct. 1399, 1402-03, 8 L.Ed.2d 750 (1962) (explaining English common law understanding of "forgery"); Moskal v. United States, 498 U.S. 103, 121-26, 111 S.Ct. 461, 472-74, 112 L.Ed.2d 449 (1990) (Scalia, J., dissenting) (reviewing the use of the term, "falsely made," in law dictionaries, statutes, caselaw, and scholarly commentaries, all of which establish that the term is an essential element of forgery, and does not embrace false contents of a genuinely executed document). The Gilbert Court noted that federal courts have tended to follow the English common law understanding of forgery when construing the word "forge" under federal statutes. 370 U.S. at 658, 82 S.Ct. at 1403-04. As stated in United States v. Wentworth, 11 F. 52, 55 (D.N.H.1882):
To falsely make an affidavit is one thing; to make a false affidavit is another. A person may falsely make an affidavit, every sentence of which may be true in fact. Or he may make an affidavit, every sentence of which shall be false. It is the "false making" which the statute makes an offence, and this is forgery as described in all the elementary books.
See also Greathouse v. United States, 170 F.2d 512, 514 (4th Cir.1948) ("The words, 'falsely made, forged, altered, or counterfeited' in the collocation in which they appeared are ejusdem generis and are usually employed to denounce the crime of forgery. Indeed it may be said that when used in an association of this kind the words 'falsely made' and 'forged' are substantially synonymous.").
Once one understands that the term "falsely makes" is synonymous with forgery, it becomes clear that there is no language in Sec. 494 that applies to false statements in a genuinely executed document. See, e.g., United States ex rel. Starr v. Mulligan, 59 F.2d 200, 202 (2d Cir.1932) (stating that in all of the cases construing former 18 U.S.C. Sec. 72, the predecessor to Sec. 494, "the fraud was perpetrated by means of forgery. We think it clear that [Sec. 72] must be so limited."); compare Sec. 494 (criminalizing the act of falsely making statements in order to defraud the United States) with 18 U.S.C. Sec. 1001 (criminalizing the act of making false statements to the United States). 3 But see Moskal, 498 U.S. at 106-18, 111 S.Ct. at 464-
Page 674
70 (holding that, as used in 18 U.S.C. Sec. 2314, the term "falsely made" applies to genuinely executed securities containing false or incorrect information). 4
The parties in the present case did not discuss the traditional distinction between falsely making a statement, and making a false statement, and they apparently overlooked Mulligan. Instead, Defendant relied on United States v. Wright, 704 F.Supp. 613, 614 (D.Md.1989), which held that Sec. 494 is not applicable to documents that were not forged. The government cited to another district court case, United States v. Gowdy, 37 F. 332 (E.D.S.C.1889), which came to the opposite conclusion. Rather than choosing between two contradictory district court cases, the trial court in the present case decided instead to rely on United States v. Staats, 49 U.S. (8 How.) 41, 12 L.Ed. 979 (1850).
In Staats, the Supreme Court construed a predecessor statute to 18 U.S.C. Sec. 495, which contained much, but not all, of the language used in Sec. 494 and its predecessors. 5 The
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Court held that "[t]he instruments referred to in the first part of the section, the false making or forging of which, with the intent stated, is made an offence, probably are forged instruments in a strict technical sense." Id. (8 How.) at 46. However, the Court reasoned that the third clause of the statute--the one pertaining to "transmission or presentation of deeds or other writings to an officer of the government"--had a much broader scope:
The deeds and other writings mentioned are not connected with those in the preceding paragraph, as would have been natural, and almost of course, if intended to describe similar instruments.... The clause, therefore, may well be regarded as providing for a distinct and independent offence,--one essential to the protection of the government against fraudulent claims.
Id. (8 How.) at 47. Thus, the third clause of the statute applied to genuine instruments containing false statements, as well as to forged instruments.
The Supreme Court revisited this language in United States v. Davis, 231 U.S. 183, 188, 34 S.Ct. 112, 112-13, 58 L.Ed. 177 (1913), 6 reaching the same result:
Coming to the text of the third paragraph, we think it is at once apparent that its provisions are so comprehensive as to prevent us from holding that they include only documents which are forged or counterfeited and hence exclude all other documents, however fraudulent they may be.... The context of the section reinforces this view, since the contrast between the narrow scope of the first two paragraphs and the enlarged grasp of the third shows the legislative intent, after fully providing in the first two paragraphs for forged and counterfeited documents, instruments, etc., to reach by the provisions of the third paragraph, any and all fraudulent documents, whether forged or not forged.
In Mulligan, 59 F.2d at 201, the Second Circuit also had occasion to construe the predecessor to Sec. 495. 7 The indictment alleged that the relator violated the statute when, with fraudulent intent, he "uttered and published" false statements to the Civil Service Commission. Id. The indictment did not allege any act of forgery. Id. Relying on Staats and Davis, the court pointed out that:
It has been authoritatively established that the first clause is limited to the false making, that is, the forging, of writings, while the third clause includes not only forgeries, but also writings genuine in execution but false in statements of fact they contain.
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Id. The court found, however, that the only clause of the statute that was at issue was the second clause. Id. The court held that the second clause, like the first, applied only to forgery:
But, to bring the relator's conduct within the denunciation of clause 2, that clause must be given an interpretation as broad as that of clause 3 in respect to the false writings enumerated in each. To do this necessitates disregarding the word "such," inserted in the second and omitted in the third clause. The presence of "such" limits the scope of the second clause to such writings as are described in clause 1.
Id.
According to the trial court in the present case, the statute at issue in Staats "contained language virtually identical to that in Sec. 494 and its predecessors." J.A. at 25. This statement is incorrect, and the difference in language between the statute construed in Staats, Davis, and Mulligan, and Sec. 494 is of key importance to the present issue. Unlike the predecessors to Sec. 495 that were discussed in Staats, Davis, and Mulligan, the third clause to Sec. 494 and its predecessors has always included the word "such": "Whoever transmits to, or presents at any office or to any officer of the United States, any such false, forged, altered, or counterfeited writing...." 8 As per Mulligan, the presence of the word "such" in both the second and third clauses of Sec. 494 "limits the scope of the [clauses] to such writings as are described in clause 1." 59 F.2d at 201. Accordingly, as per Staats, Davis, and Mulligan, these writings only include forged, altered, or counterfeited documents.
Therefore, the Supreme Court's holding in Staats--that the third clause of the predecessor to Sec. 495 applies to genuinely executed documents containing false statements as well as to forged documents--is not applicable to Sec. 494 or its predecessors. 9 It follows that the trial court erred by applying this aspect of Staats to the present case. 10
B.
Because Defendant was not accused of forgery, but only of making false statements in documents that Defendant genuinely executed, 11 Count 8, which charged that Defendant violated Sec. 494, should have been dismissed. However, the trial court made a second error in construing Sec. 494, and it happens that the second error repaired whatever damage was caused by the court's first error. This is a situation in which two wrongs did indeed make a right. Even though neither party raises this error as an issue on appeal, we address it sua sponte.
The jury found Defendant guilty on all counts, including Count 7, which charged Defendant with violating Sec. 1001. The trial court dismissed Count 7, however, holding that Sec. 1001 was a lesser included offense of Sec. 494:
The Sec. 1001 offense requires: 1) a false statement or writing, 2) knowledge of the statement or writing's falsity, and 3) that the false statement or writing regard a matter within the jurisdiction of a department or agency of the United States. The
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relevant paragraph of Sec. 494 requires: 1) a false writing, 2) knowledge of the writing's falsity, and 3) presentation of the false writing to an office or officer of the United States.... Therefore, as Sec. 1001 requires proof of no fact that is not also required by Sec. 494, it constitutes a lesser included offense of Sec. 494.
J.A. at 27. However, as discussed in the preceding section, the trial court misstated the elements of Sec. 494. Section 494 applies only to forged, altered, or counterfeited documents, regardless of whether the statements therein are true or false, while Sec. 1001 applies to false statements, regardless of whether the statements are made in a forged or genuinely executed document. The two offenses are, then, entirely separate, and the trial court erred by dismissing Count 7.
Therefore, the trial court should have dismissed Count 8 and not Count 7. The trial court applied Sentencing Guideline Sec. 2F1.1 in calculating Defendant's sentence for Count 8. See United States Sentencing Commission Guidelines Manual, Appendix A (directing courts to apply Sec. 2F1.1 to violations of 18 U.S.C. Sec. 494). This is precisely the guideline that the court should have applied to violations of Sec. 1001. See Appendix A. This guideline "is designed to apply to a wide variety of fraud cases." U.S.S.G. Sec. 2F1.1, comment (background).
It follows that Defendant's sentence on Count 8--37 months followed by three years of supervised release--would have been just as appropriate as a sentence for Count 7 had the trial court not erred regarding Sec. 494 at all. Therefore, although we remand for revision of the Entry of Judgment, we find no need to remand for resentencing.
C.
The trial court granted the government's motion in limine preventing Defendant from introducing evidence to show that he had previously been acquitted of similar charges in a prior case. Defendant contends that he had made admissions to investigators because he was despondent, and that the previous acquittal was relevant to his state of mind. The court ruled that Defendant could present evidence that he had been through previous criminal litigation, but could not mention the verdict, holding that there was no logical connection between the favorable verdict and Defendant's alleged despondency. The court also found that evidence of the favorable verdict could confuse the jury.
"The exclusion of evidence on the grounds of relevancy is within the discretion of the district court," and a reviewing court will reverse only for abuse of discretion. United States v. Williams, 952 F.2d 1504, 1519 (6th Cir.1991). We find ample basis for the trial court's ruling on this issue, and so find no abuse of discretion.
D.
Defendant contends that the evidence was insufficient to support the jury verdict. According to United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992):
The relevant inquiry when reviewing claims of insufficient evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Circumstantial evidence and direct evidence are accorded the same weight and "the uncorroborated testimony of an accomplice may support a conviction under federal law." United States v. Frost, 914 F.2d 756, 762 (6th Cir.1990) (quoting United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986). Therefore, we will reverse a judgment for insufficiency of evidence only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence. [United States v.] Ellzey, 874 F.2d [324,] 328 [ (6th Cir.1989) ].
Defendant offers five arguments in support of his claim that the evidence against him was insufficient. The first of these arguments is that the evidence was insufficient as to Count 8 because there was no proof of forgery; we have already explained why we
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agree. As for the four remaining arguments, one has merit, and so we set aside Defendant's convictions on four of the eight counts, (including Count 8).
1.
Defendant argues that the evidence failed to show that the alleged victims of mail and wire fraud relied on the mailings and wire transmissions that were the subject of Counts 1-4 and 6. Apparently, the government does not disagree that it did not prove reliance; the issue is whether such reliance is indeed an element of mail and wire fraud.
To support a conviction for mail fraud, 18 U.S.C. Sec. 1341, 12 the government must prove: (1) the existence of a scheme to defraud, (2) which involves the use of the mail, or of wire transmissions, (3) for the purpose of executing the scheme. United States v. Castile, 795 F.2d 1273, 1277-78 (6th Cir.1986). To support a conviction for wire fraud, 18 U.S.C. Sec. 1343, 13 the government must prove: (1) the existence of a scheme to defraud, (2) use of wire communications in furtherance of the scheme, and (3) that the scheme was intended to deprive a victim of money and property. United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir.1990).
Reliance is not an element of either of these types of fraud. Indeed, Defendant expressly recognizes that the mail and wire fraud statutes do not require proof that the intended victim was actually defrauded; the actual success of a scheme to defraud is not an element of either Sec. 1341 or Sec. 1343. Ames Sintering Co., 927 F.2d at 235; United States v. Hathaway, 798 F.2d 902, 912 (6th Cir.1986); United States v. Goodpastor, 769 F.2d 374, 378-79 (6th Cir.), cert. denied, 474 U.S. 983, 106 S.Ct. 391, 88 L.Ed.2d 343 (1985). This implies that reliance is not an element of mail or wire fraud.
The authorities cited by Defendant in support of his claim to the contrary are cases in which a private plaintiff alleged mail fraud in a civil suit; while it is true that such plaintiffs must prove reliance in order to recover damages, it does not follow that the government must prove reliance in order to convict a mail fraud defendant. Thus, Defendant's argument is without merit.
2.
Next, Defendant argues that the government failed to present any evidence that the mail and wire transmissions underlying Counts 1, 3, 4, and 6 were used to further Defendant's scheme to defraud. Rather, he contends, the purpose of the mailings and transmissions, far from promoting the scheme, positively conflicted with it by making it easier to detect. We agree with Defendant regarding Counts 1, 3, and 6, but not with regard to Count 4.
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Defendant relies on Castile, 795 F.2d at 1278-81. In Castile, the defendant schemed to burn down his restaurant in order to collect insurance proceeds. The government argued that the defendant's conduct caused the insurance company to mail inquiries to the defendant, which formed the basis for several counts of mail fraud against defendant. The court acknowledged that the government proved the first two elements of mail fraud, namely that defendant did scheme to defraud the insurance company, and that his conduct did cause the insurance company to use the mail. Id. at 1278 (quoting Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954) (holding that one "causes" mail to be used where one "does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended.")). However, the court held that the government had not proven the third element, that the uses of the mail by the insurance company were "for the purpose of executing the scheme." Id. The mailings furthered the company's investigation, rather than furthering the defendant's scheme; they were an attempt to procure evidence that would tend to defeat the fraudulent scheme, and so conflicted with the defendant's purpose. Id. at 1279-80. Therefore, the court held that the evidence was insufficient to sustain the defendant's conviction for mail fraud. Id. at 1281.
In the present case, the mailing that formed the basis of Count 1 was a letter from a government official, Navy Contracts Specialist Jane Nishiguchi, requesting more information to aid her in determining whether Defendant qualified as a surety. The wire communication that formed the basis of Count 2 was Defendant's response. The mailing that formed the basis of Count 3 was Nishiguchi's request for more information and for an extension of time to make her determination on Defendant's qualifications. The wire communication that formed the basis of Count 4 was Defendant's granting Nishiguchi's request for an extension of time. The mailing that formed the basis of Count 6 was a letter from Charles Beckner, a co-owner of one of the contractors for which Defendant was attempting to serve as surety, requesting additional information about Defendant from a third party insurance company.
The two mailings from Nishiguchi were clearly in furtherance of the government's investigation in order to defeat any fraudulent scheme, and so were in conflict with Defendant's scheme. Similarly, the letter from Beckner was part of an investigation of Defendant, and was not in furtherance of Defendant's scheme. That is, these three mailings were no different than the insurance company's mailings in Castile. As per Castile, then, these three mailings cannot properly be used as a basis for charges of mail fraud. Therefore, Defendant's conviction on Counts 1, 3, and 6 must be set aside.
On the other hand, the two wire transmissions from Defendant to Nishiguchi clearly were in furtherance of Defendant's scheme. Defendant argues that granting the request for an extension furthered the government's investigation. That may be true, but it also kept Defendant's scheme alive insofar as denying the request would probably have resulted in Defendant's being rejected as a surety. Therefore, we affirm Defendant's conviction on Count 4.
Setting aside Defendant's conviction on three counts does not affect Defendant's sentence. The trial court sentenced Defendant to the same sentence for each of the seven counts on which he was convicted, each sentence to run concurrently. Thus the sentence would remain unchanged even if the panel were to affirm Defendant's conviction on only one count.
3.
Defendant contends that the government failed to prove beyond a reasonable doubt that Defendant had the requisite intent to deceive. Defendant's claims that he misstated his net worth in his Affidavit of Individual Surety forms inadvertently, that he was merely negligent. It is clear, however, that the jury did not believe Defendant's testimony in this regard, and there was ample evidence presented from which a rational jury could infer fraudulent intent, not the
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least of which were Defendant's own written statements admitting fraudulent intent. This contention is without merit.
4.
Finally, Defendant contends that the government failed to prove beyond a reasonable doubt that Beckner actually mailed the letter that formed the basis of Count 6. Because we are setting aside Defendant's conviction for Count 6 on other grounds, this issue is moot. However, even if it were not moot, the contention is meritless. Defendant focuses on the fact that one of the witnesses was not certain whether he received the letter via fax or via mail. Defendant disregards, however, Beckner's own testimony, in which he expresses no doubt that the letter was mailed.
III. Conclusion
For the foregoing reasons, we set aside Defendant's convictions on Counts 1, 3, 6, and 8, reverse the district court's ruling on Counts 7 and 8, affirm the jury's verdict on Counts 2, 4, 5, and 7, and remand in order for the district court to revise its Entry of Judgment accordingly. Defendant's sentence remains unchanged.
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* The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.
1 There were at least four projects for which Defendant attempted to serve as surety: (1) the Pelham Line Rehabilitation Project for the New York City Transit Authority, with contractor American Bridge Company; (2) the Mississippi River Dredging Project for the Army Corps of Engineers, with contractor Bean Dredging; (3) the Johnson Island Project for the United States Navy, with contractor Cascade Leasing; and (4) the Glenville Illinois project, also for the Navy, with contractor Pyramid Industries of Riverdale. Defendant was successful in this last project, and in October 1987, Pyramid Industries defaulted. Defendant then became responsible for completing the project. Various lawsuits were filed against Defendant and his wife, who declared bankruptcy in June 1990. Their total unencumbered assets were worth about $13,000. Unsecured creditors had claims totaling $5,720,665, apparently relating to the Pyramid default.
The indictment alleges that, between May 1987 and June 1989, Defendant was approved as surety on more than fourteen government contracts having a value of more than $39,000,000, generating fees of more than $885,000. Apparently, this was not proved at trial and is not re-alleged in the briefs on appeal.
2 Section 494 provides:
Whoever falsely makes, alters, forges, or counterfeits any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or
Whoever utters or publishes as true or possesses with intent to utter or publish as true, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited; or
Whoever transmits to, or presents at any office or to any officer of the United States, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited--
Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.
The original version of Sec. 494 was passed in 1866, and a substantially identical version was passed in 1872. These two acts were codified at U.S.Rev.Stat. Secs. 5418 and 5479 respectively. In 1909, the two statutes were recodified as a single statute at 18 U.S.C. Sec. 72. The statute took its present form in 1948, when it was revised slightly, and recodified at Sec. 494.
3 Section 1001 provides:
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, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
4 In Moskal, the Court held that, were it to limit its interpretation of the term "falsely made," as used in Sec. 2314, to exclude genuinely executed documents that are false only in content, it would "not accord with Congress' broad purpose in enacting Sec. 2314--namely, to criminalize trafficking in fraudulent securities that exploits interstate commerce." 498 U.S. at 117, 111 S.Ct. at 470. Finding that it was more important to realize "Congress' general purpose" in enacting Sec. 2314 than it was to apply the common law meaning of the statute's terms, the Court declined to interpret the term, "falsely made," as it is used in Sec. 2314, in the way that it was usually interpreted at common law. Id.
This reasoning is inapplicable to Sec. 494 in the present case. Congress explicitly criminalized the act of making false statements to the United States in a genuinely executed document in an entirely separate statute. See 18 U.S.C. Sec. 1001 (quoted in note 3, supra). Thus, no overriding Congressional purpose would be served by interpreting the term "falsely makes," as it is used in Sec. 494, in a manner that departs from its common law meaning.
The Moskal Court also found that three lower courts had previously held that the term, "falsely made," applied to genuinely executed documents containing false statements. Id. 498 U.S. at 115, 111 S.Ct. at 469 (citing United States v. Hartman, 65 F. 490 (E.D.Mo.1894); State v. Shurtliff, 18 Me. 368 (1841); and In re Count de Toulouse Lautrec, 102 F. 878 (7th Cir.1900)). From this, the Court concluded that the term was ambiguous at common law. Id. The Court recognized, however, that most courts have interpreted the term to exclude documents that were false only in content. Id. The dissent in Moskal explained that of these three cases, only Hartman actually discussed falsity of content; the other two involved only documents that were not genuinely executed. Id. 498 U.S. at 128-29, 111 S.Ct. at 476 (Scalia, J., dissenting). It pointed out that the Gilbert Court specifically rejected the few scattered cases like Hartman that have applied the term "falsely made," to genuinely
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executed documents containing false statements. Id. (citing 370 U.S. at 658, 82 S.Ct. at 1404). See also United States v. Davis, 231 U.S. 183, 189, 34 S.Ct. 112, 113, 58 L.Ed. 177 (1913) (interpreting "falsely makes," as used in predecessor statute to 18 U.S.C. Sec. 495, to be synonymous with forgery); United States v. Staats, 49 U.S. (8 How.) 41, 46, 12 L.Ed. 979 (1850) (same). (It is worth noting that Sec. 494 more closely resembles Sec. 495 than it does Sec. 2314).
In light of Gilbert, Davis, and Staats, as well as the overwhelming majority of cases and commentators that have held or assumed that "false making" is substantially synonymous with forgery, we believe that Moskal's understanding of the application of the term, "falsely made," as used in Sec. 2314, is not applicable to other statutes, such as Secs. 494 or 495, where departing from the term's common law meaning would not serve any overriding Congressional purpose. If we were to interpret Moskal more broadly than this, we would have to regard Moskal as implicitly overruling Gilbert, Davis, and Staats, which presumably is something that the Moskal Court did not intend to do.
5 The statute at issue in Staats provided:
That if any person or persons shall falsely make, alter, forge, or counterfeit; or cause or procure to be falsely made, altered, forged, or counterfeited; or willingly aid or assist in the false making, altering, forging, or counterfeiting, any deed, power of attorney, order, certificate, receipt, or other writing, for the purpose of obtaining or receiving, or of enabling any other person or persons, either directly or indirectly, to obtain or receive, from the United States, or any of their officers or agents any sum or sums of money;
or shall utter or publish as true, or cause to be uttered or published as true, any such false, forged, altered, or counterfeited deed, power of attorney, order, certificate, receipt, or other writing as aforesaid, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited;
or shall transmit to, or present at, or cause or procure to be transmitted to, or presented at, any office or officer of the government of the United States, any deed, power of attorney, order, certificate, receipt, or other writing, in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited;
every such person shall be deemed and adjudged guilty of felony, and being thereof duly convicted, shall be sentenced to be imprisoned and kept at hard labor for a period not less than one year, nor more than ten years; or shall be imprisoned not exceeding five years, and fined not exceeding one thousand dollars.
49 U.S. (8 How.) at 41-42 (quoting the Act of March 3d, 1823, 3 Stat. at L., 771, 772) (numerals and paragraph divisions added). Originally, this Act was codified as U.S.Rev.Stat. Sec. 5421. In 1909, it was recodified as 18 U.S.C. Sec. 73. It was slightly revised when it took its current form, as 18 U.S.C. Sec. 495, in 1948.
In United States v. Gowdy, 37 F. 332 (E.D.S.C.1889), the court purported to apply the holding of Staats to Sec. 5479, a predecessor statute to Sec. 494, the statute at issue in the present case. However, the Gowdy court was under the misapprehension that Staats involved the very same statute, the Act of March 3d, 1823. The fact is, Gowdy involved the Act of June 8, 1872, a different statute altogether. As discussed below, the holding of Staats is inapplicable to Sec. 494 and its predecessors.
6 Apparently, the trial court and the parties in the present case missed Davis entirely. The court incorrectly stated that Staats "is the only decision of the Supreme Court interpreting the language contained in 18 U.S.C. Secs. 494 & 495." J.A. at 26. As in Staats, the Davis Court was primarily concerned with construing U.S.Rev.Stat. Sec. 5421, the predecessor to 18 U.S.C. Sec. 495, but the Court also mentioned U.S.Rev.Stat. Sec. 5479, which was a predecessor to Sec. 494, the statute at issue in the present case. The trial court in Davis treated Secs. 5421 and 5479 "as embracing only documents which were forged and counterfeited," and not documents that "were merely false and fraudulent, but not forged." 231 U.S. at 187, 34 S.Ct. at 112. The government conceded that the trial court was correct regarding Sec. 5479. Id. Thus, the only issue before the Supreme Court was the trial court's construction of Sec. 5421.
7 As of 1909, this statute was codified as 18 U.S.C. Sec. 73. See supra note 5.
8 (Emphasis added). This explains why, in Davis and Mulligan, the predecessor statutes to Sec. 494 were treated differently than the predecessors to Sec. 495.
9 Interestingly, as of 1948, this holding was no longer applicable to Sec. 495 either. In that year, Congress revised the statute by adding the word "such" to its third clause, thereby effectively overruling Staats as to future applications of the statute to genuinely executed documents containing false statements. At the same time, Congress also passed Sec. 1001, which provided that making false statements with intent to defraud the United States was a separate criminal offense. This section rendered the broad scope of the former third clause of the predecessors to Sec. 495 unnecessary.
10 The case upon which Defendant relies, Wright, 704 F.Supp. at 614, reaches the correct result without going through the reasoning applied here. The Wright court did not address Staats or other cases construing Sec. 495 and its predecessors, but rather relied upon Greathouse v. United States, 170 F.2d 512 (4th Cir.1948), which construed similar language appearing in 18 U.S.C. Sec. 2314.
11 Some of the evidence presented at trial suggests that Defendant committed acts of forgery, too, but the government chose not to charge Defendant for these alleged acts.
12 Section 1341 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
13 Section 1343 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
ALEX G MERKLINGER 22616-013 66 White M 12-18-1995 RELEASED
Conspiracy theorists defend real estate loan scheme
Part 2: In-depth look at mortgage-elimination programs
Editor's note: Federal investigators are looking into so-called mortgage elimination programs that claim to wipe out home mortgages or other forms of debt for consumers. In this three-part series, we provide a case study of one mortgage-elimination process. Part 1 explores the methods the group's proponents use to try to convince title companies and lenders that it has successfully eliminated mortgages. Part 2 follows the group's beliefs and why they think mortgage elimination is possible. Part 3 takes an in-depth look at the group's business model.
An e-mail was sent to consumers in early December about an "important broadcast" on the Internet featuring Kurt Johnson, one of the principal members of The Dorean Group -- a group at the center of a controversial process that promoters claim can quickly erase mortgage debt for homeowners.
Some regulators have issued warnings about mortgage-elimination companies, and there are active federal investigations targeting some of these schemes.
The Dorean-related e-mail encourages people to awake "to the kinds of subtle programming, mind manipulation and lies you've been exposed to your entire life … in this debt laden society that we live in today," and the e-mail includes a lengthy document describing charges brought by a congressman against The Federal Reserve Bank in the 1930s.
Mortgage elimination programs typically promote anti-bank philosophies that question the motives and validity of the mortgage process and the overall U.S. financial system. Some Web sites that promote mortgage-elimination programs also include intricately detailed conspiracy theories about the dark and sinister intentions of the Federal Reserve, the military industrial complex and the vastly powerful New World Order.
References in the e-mail message refer to a small group, "the controllers," who are "at the core" of society's financial woes. "What went wrong with the wealth and finances of the people in America?" the e-mail questions, and "Who are these people?"
Web sites and materials associated with The Dorean Group often question motives behind the nation's financial system.
The Dorean Group, which uses a mailing address in Union City, Calif., is described in the e-mails as a "legal firm," though the State Bar of California has no membership information for Johnson and D. Scott Heineman, another principal for the group.
The December 3 Internet audio broadcast was carried on a Web site called Mysteries of the Mind, hosted by Alex Merklinger. The Web site describes Merklinger's Internet-based talk show as a gateway to exploring "many of life's enigmas," including UFOs, spiritual cosmology, crop circles, personal agendas, and "the arcane secrets of many cultures."
Merklinger is also the contact person for another Web site, http://www.freedomandtrust.com/, that is affiliated with The Dorean Group, according to Farrel LeCompte, a broker for The Dorean Group process. Merklinger could not be reached for comment about The Dorean Group.
An e-mail response noted, "Alex will be away from the computer and telephone while recuperating from a sudden illness," and a notice on the Web site states that "financial support for the escalating medical bills are very much appreciated."
The Freedom and Trust site, like many of the Web sites associated with The Dorean Group, includes allegations about the far-reaching powers of the Federal Reserve Board and widespread corruption within the U.S. financial system. There are links to readings about "The Military Industrial Complex," "An 'Economic 9/11' in the Works," Native American prophecy relating to the New World Order conspiracy, "Our Dishonest Monetary System," and to "The Creature from Jekyll Island" -- this last one focuses on the Federal Reserve and is referenced by many Dorean-affiliated Web sites.
The Freedom and Trust site offers a window into how The Dorean Group and its affiliates attract consumers --and their money -- to their program. The group's affiliates promote philosophies that question the motives and validity of the U.S. financial system, and they encourage consumers to distrust and challenge this system.
"We are focusing on the topic of challenging spurious lending as well as fiduciary practices and the resulting erroneous mortgage debt with good reason," the Freedom and Trust Web site states. The site asks consumers to challenge the mortgage process -- "This is but one way that we are saying that we are not going to sit idle and take it, we are declaring that we want our money, our property, our country, our lives, our God given rights and pursuit of happiness back."
Another site which LeCompte said is Dorean-affiliated, www.freemyloan.com, includes a video purporting to show "the occult pagan rituals of the global elite" and other information that claims to be "irrefutable evidence that there is a giant conspiracy of deception being perpetrated upon 'U.S. Citizens.' "
Still another site affiliated with The Dorean Group, www.ccrsolution.com, questions the foundations of the lending process: "Where was the loan? There wasn't one. But you really do have to admit, it's brilliant. Listen, we're not the first people to 'discover' this was going on. But we have figured out some things that no one else has!"
And other Web sites similarly promote The Dorean Group's process while questioning the integrity of the nation's financial system.
Dorean promoters have admitted there are some flaws in the process. Heineman acknowledges that some clients may have ended up in a foreclosure process, and he said his group would continue to pursue litigation on their behalf.
"The foreclosure, if any, happens as a result of the bank ignoring on our presentment and moving forward, which is further evidence of a broken banking system. Any properties that have been foreclosed upon will be litigated later." Asked whether The Dorean Group has successfully fought any foreclosure cases in court, Heineman said, "We're still working." One Web site, puredebt.com, has promoted the Dorean-affiliated program as a foreclosure alternative.
Heineman said that "mortgage elimination" is really a misnomer because The Dorean Group questions the very existence of a mortgage loan. "We challenge the mortgage validity. We're not eliminating the mortgage -- we don't believe there was a valid contract to begin with." He added, "Essentially, what we have is a broken system and we'd like to see them fix it with some honesty." Even so, Web sites affiliated with The Dorean Group promote a mortgage-elimination process, and one affiliated Web site even carries the address: http://www.mortgageelimination.org/.
Meanwhile, real estate industry experts say they have yet to see a successful mortgage-elimination process that can hold up in court.
Dwight Bickel, a lawyer for LandAmerica Financial Group, said he is familiar with the Capital Creation Resource Web site, which is affiliated with The Dorean Group.
"I have researched many similar companies who suggest reasons why a mortgage can be eliminated without payment," he said. "I have found no companies that have any type of procedure or forms that are considered by the courts, lawyers, banks and title insurance companies to be effective to eliminate the lien of the mortgage without payment in full."
He added, "Most, if not all national title insurance underwriters have distributed educational bulletins alerting that the mortgage-elimination companies are recording (mortgage-discharge) documents, and concluding that the (documents) are deemed to be invalid since not signed by the lender in connection with a payoff."
In many cases these documents are associated with such terms as "reconveyance" or "discharge" or "release," he said.
John T. Reed, who maintains a Web site that rates real estate investment gurus, said The Dorean Group process "sounds like the guys who say income tax is unconstitutional. It's ridiculous, but our laws are so complex that ignorant laymen figure maybe it's true. Also, 'the law is a ass' sometimes, which enables people to believe maybe this works."
He added, "I do not share the amazement of some that people fall for (mortgage-elimination programs) because I have become a reluctant expert in get-rich-quick scams. The basic principle is that people will believe an obvious lie if it is attractive enough."
A lawyer representing Heineman, Johnson and several family trusts challenged the validity of the lending process with several lawsuits that were filed in late 2004 in U.S. District Court in Sacramento, Calif. One lawsuit, reviewed by Judge William Alsup, contends that there is no enforceable debt "when a lender funds a loan through wire transfers instead of cash," though the judge dismissed the complaint. The lawyer who filed the complaint was fined for bringing a suit that was found to violate a court rule that requires complaints to be "simple, concise and direct."
The complaint alleged that "no loan of money occurred" between a homeowner and lender because "a loan of legal tender did not occur" and while "the bank has the legal right to create money out of thin air, it does not have the right to conceal this and misrepresent to the 'borrower' that it is lending legal tender." The complaint also argues that the homeowner "did not owe" a debt because the lender "did not make a loan of lawful United States money."
Alsup ruled that the complaint was "largely unintelligible" and contains allegations that "are disjointed, vague and incomprehensible."
Barry Hovis, a lawyer who represented World Savings Bank in lawsuits filed by Heineman and Johnson, said the lawsuits seemed "really just painfully ridiculous." He added, "Clearly they're doing a disservice not only to the financial institutions but to the borrowers that they solicited."
Heineman said he blamed the complaint's failure on Thomas Spielbauer, his lawyer in the case. Spielbauer did not return phone calls and e-mails seeking comment.
Sharon Horstkamp, corporate counsel for Mortgage Electronic Registration Systems, a technology company established by the mortgage banking industry, said the California litigation is not an isolated occurrence. She has identified additional litigation involving Heineman and Johnson as trustees for homes that have been set up in a family trust, and most of these homes were involved in a foreclosure process.
In November, Horstkamp started to notice a pattern in the lawsuits, which questioned the validity of the lending process. "A rash of lawsuits were being filed. I realized this might become a bigger issue," she said.
Similar lawsuits have appeared in Washington, North Carolina, South Carolina and Georgia, according to Horstkamp, and there may be others.
LaRae Quy, a special agent with the FBI's San Francisco office, said mortgage-elimination schemes that ask for up-front money and make big promises can be categorized the same as Nigerian scams, which use mass e-mail campaigns to convince consumers to spend money in exchange for a share of far larger rewards. Quy said consumers should contact the Better Business Bureau or their local police department or other trusted sources before entering into a program that seems too good to be true.
ok, so wahts on tap fo today???
waht is it with these long interminable posts whom i am shure noone reads....
somenone gettin reddy to cash in all those call optons on the SP 500 index???
===========================
HEDGE FUND PLUMMETS!
ABSOLUTE CAPITAL MANAGEMENT STOCK LOSES SEVENTY PERCENT (70%) OF VALUE IN ONE DAY!
$3.5 BILLION HEDGE FUND TRADED ON LONDON STOCK EXCHANGE!
This is unheard of! No company plunges in value like this; and someone with lots of money in the USA, knew about this in advance when they sold options on Billions of dollars worth of stocks two weeks ago that I reported on this web site!
With multi-billion dollar hedge funds able to collapse in value in one day, watch out for more financial disasters hitting stock markets without warning as this week proceeds. The reason I say that is because the Options mentioned earlier, sold two weeks ago, require stocks to fall thirty to fifity percent before September 21 in order for the person who sold those options to profit.
"...the Options mentioned earlier, sold two weeks ago, require stocks to fall thirty to fifity percent before September 21 in order for the person who sold those options to profit."
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stox fall 50%, its "hasta la vista baby"
it will be like, "bro, can YOU spare a dime?"
not good....
make sho yo got at least 2-3 weeks of can goods in you cupboard.
Stocks in general have been doing well the last couple of days due to the Federal Reserve's interest rate cuts. The guy or firm that purchased "put options" & shelled out almost a billion dollars is going to eat rocks for breakfast. His options will expire worthless by the 21st of September. Maybe he should have bought his put options farther out into the future.
Can you smell it, the lies, the hypocrisy, the out and out out bullshit, it certainly is here.
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