Opposition Brief — Mulderig v. United States

No. 97-805

In the Supreme Court of the Giuted States

OCTOBER TERM, 1997

WILLIAM MULDERIG, PETITIONER

en

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

THOMAS M. GANNON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1, Whether petitioner was entitled to dismissal of

the indictment based on his claim of preindictment

delay.

2. Whether the statute of limitations barred peti-

tioner’s conspiracy and false statement convictions.

3. Whether the evidence supported petitioner’s

false statement conviction.

(I)

TABLE OF CONTENTS

Page

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I Siar icacianait os cancnantn ennneessciadiecshondtoanataun eae 1

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PIE | scibcniesnihndhneepddnctabeninebiniins\thesigitincnsneneineerices 8

SNIINNIIIT iiss sinscinbatenbidasavapanapielcnpesecenebindemmecemnsesees 24

TABLE OF AUTHORITIES

Cases:

Arizona v. Youngblood, 488 U.S. 51 (1988) ............ 10

Biddinger v. Commissioner of Police, 245 US.

BANE RE EE cchbninliihbicdaephehidacieeeniamabiisiahhatasessenneoee nes 16

Brady v. Maryland, 373 U.S. 88 (1968) ................ 7

Bridges v. United States, 346 U.S. 209 (1958) ....... 20

Bronston v. United States, 409 U.S. 352 (1973) .... 21, 22

Carlisle v. United States, 517 U.S. 416 (1996) ....... 20

Howell v. Barker, 904 F.2d 889 (4th Cir.), cert.

denied, 498 U.S. 1016 (1990) ..............sccccssssssssesssess 11, 12

Jones v. Angelone, 94 F.3d 900 (4th Cir. 1996) ..... 11

United States v. Acevedo-Ramos, 961 F.2d 305

(1st Cir.), cert. denied, 506 U.S. 905 (1992) ........... 16, 17

United States v. Arditti, 955 F.2d 331 (5th Cir.),

cert. denied, 506 U.S. 998 (1992) ................ccceeeceees 15

United States v. Arky, 938 F.2d 579 (5th Cir.

1991), cert. denied, 503 U.S. 908 (1992) ................. 16

United States v. Armstrong, 116 S. Ct. 1480

IE eiaiadlatlii reek allies teats idedladlaebvainaenposecesenearncoese 15

United States v. Automated Medical Laboratories,

Inc., TIO F.2d 399 (4th Cir. 1985) ...........cccccccecceees 13

United States v. Barakett, 994 F.2d 1107 (5th Cir.

1993), cert. denied, 510 U.S. 1049 (1994) ............... 16

United States v. Bracy, 67 F.3d 1421 (9th Cir.

PEE cit hob iilkcins Sinkalolebiiesdisadihbeabtthiasebipectpreasinngeense 10, 13

(iT)

Cases—Continued: Page

United States v. Brown, 959 F.2d 63 (6th Cir.

ROD ci slscdicsacatstchscancinisheiecccminietapisueancbacobaannasbeckais 10

United States v. Canoy, 38 F.3d 893 (7th Cir

POI acicvcck sscndin vecdnnnhesssctubsciauiappaaineoasdagenscasasiainiassons 11, 18

United States v. Clark, 546 F.2d 1130 (5th Cir

OTE Sasi SRSA aisha 22

United States v. Cook, 84 U.S. (17 Wall.) 168

CUBTE) sc cnssinnesédicictencccakssesseuestiasbi ooescaaieusabeiicessoseties 16

United States v. Cooper, 956 F.2d 960 (10th Cir

TODD cndeccnscnacicsninainiadgniedlctedellicatdacamcdbchademdietebeses 17, 18

United States v. Crooks, 766 F.2d 7 (1st Cir.),

cert. denied, 474 U.S. 996 (1985) .........0...-scssseeeeeees 10

United States v. Crouch, 84 F.3d 1497 (och Cir.

1996), cert. denied, 117 S. Ct. 736 (1997) ............... 4,9

United States v. DeTar, 832 F.2d 1110 (9th Cir.

ROT) vig. cac cpabcdecceda uecvcspecsaceinecckatiatntag ebeveinecsenwtoases 17

United States v. Elliott, 849 F.2d 554 (11th Cir

FIO sckscssncossccdcionsinsincscisssetninalbadachtniensiniaaiineicagnecte 20

United States v. Engstrom, 965 F.2d 836 (10th

COP, IEE onsconcioncconah sscootcesoetepnissdaieseacisastemetibiinaserete 10

United States v. Gallup, 812 F.2d 1271 (10th Cir

POTD occshicsiccanninsvgensecavhesennabiaeaddadssiseanialeiaaasiciscesss 17

United States v. Gouveia, 467 U.S. 180 (1984) ....... 10

United States v. Grady, 544 F.2d 598 (2d Cir.

QTD sriavccsccctccnicctunibiereendghin CaaMeE tceasenaintaeemctss« 20

United States v. Hayes, 40 F.3d 362 (11th Cir.

1994), cert. denied, 516 U.S. 812 (1995) ................. 9

United States v. Hoo, 825 F.2d 667 (2d Cir. 1987),

cert. denied, 484 U.S. 1085 (1988) ...............cseeeeees 10

United States v. Ismaili, 828 F.2d 153 (8d Cir.

1987), cert. denied, 485 U.S. 935 (1988) ................. 10

United States v. Johnson, 872 F.2d 612 (5th Cir.

SQGD) ccivnincascausascaicnsekuts asadiadinnt dedi ceontensneiavesess 15

United States v. Karlin, 785 F.2d 90 (3d Cir.

1986), cert. denied, 480 U.S. 907 (1987) ............0000 16, 17

V

Cases—Continued: Page

United States v. Killian, 639 F.2d 206 (5th Cir.),

cert. denied, 451 U.S. 1021 (1981) ...............css0e0000 6

United States v. Lighte, 782 F.2d 367 (2d Cir.

SN ssipnieisannbicatthaaihcibeishnmssiamciseaninkibctepoecevcess 23

United States v. Lovasco, 481 U.S. 783 (1977) ..... 8-9, 13

United States v. Marion, 404 U.S. 307 (1971) ..... a )

United States v. Mayberry, 913 F.2d 719 (9th

Cie TO) ada cer ee sentence Bibs dancer 23

United States v. Meeker, 701 F.2d 685 (7th Cir.),

cert. denied, 464 U.S. 826 (1983) .............c.cccceeeseees 16-17

United States v. Mmahat, 106 F.3d 89 (5th Cir.),

cert. denied, 118 S. Ct. 186 (1997) ..................000000- 2

United States v. MMR Corp., 954 F.2d 1040

i Ses BRERA TEND SCALE NR TARA CEE SR aE 14

United States v. Muniz, 1 F.3d 1018 (10th Cir.

LOD Gols vbeckes acibcsasssdeenchadeusseresbbsisbeasbabeddissectccsecetee 14

United States v. Percio, 870 F.2d 1090 (6th Cir.

LOD Watabiicnicicccaccicccdhcéenacndsnideniasbaccbishisshoxesdickteace 17, 19

United States v. Reeves, 892 F.2d 1223 (5th Cir.

NOD icc dssdativnicbsjavaderdisscesicdntbtneckastbdadbsteredhicsccaic 14

United States v. Ross, 123 F.3d 1181 (9th Cir.

1997), cert. denied, 118 S. Ct. 733 (1998) ............... 15

United States v. Savage, 863 F.2d 595 (8th Cir.

1988), cert. denied, 490 U.S. 1082 (1989) ............... 10

United States v. Schmick, 904 F.2d 936 (5th Cir.

1990), cert. denied, 498 U.S. 1067 (1991) ............... 20

United States v. Sowa, 34 F.3d 447 (7th Cir. 1994),

cert. denied, 513 U.S. 1117 (1995) ...............ececeeeees 11

United States v. Stephens, 779 F.2d 232 (5th Cir.

ID Sikrscnatsicecasssasssbecbadcesebscckadtsisdibecctdecsidecesesckecees 22

United States v. Stierwalt, 16 F.3d 282 (8th Cir.

PED sicdnkesncacRiclvaccsdsigsalpbéctimaivssdheabmcdblakelababetoncetoas 9-10

United States v. Surface, 624 F.2d 23 (5th Cir.

NOD) sssasseciskicitiseccssdstscedseccdsietistesicitsiichees ct iteccs: 15

Cases—Continued: Page

United States v. Valentine, 783 F.2d 1413 (9th

CRP IBD .crcccccccicccnncckcicbabdedditebhaatcbccvedipubansdibiitide 10

United States v. Valone, 834 F.2d 1334 (7th Cir.

GOGH) sincisiscesdincarsicnsesisistiseicinasinticdeaiainlaniciaiaiaatte tail lidatiiiaawigs 14

United States v. Walsh, 700 F.2d 846 (2d Cir.),

cert. denied, 464 U.S. 825 (1983) ..........csccscseseesseees 16

United States v. Wells, 117 S. Ct. 921 (1997) ......... 21

United States v. Williams, 684 F.2d 296 (4th Cir.

1982), cert. denied, 459 U.S. 1110 (1983) ............... 16, 17

Waters v. United States, 328 F.2d 739 (1964) ....... 17

Wisniewski v. United States, 353 U.S. 901 (1957) . 16

Statutes and rules:

Financial Institutions Reform, Recovery, and

Enforcement Act of 1989, Pub. L. No. 101-73,

REDS INS SEA ORO OO USER 19

Tit. II:

§ 205, 103 Stat. 194-195 (18 U.S.C. 1014) ........ 19

Tit. IX:

§ 961(g)(1), 103 Stat. 500 (18 U.S.C. 1008)

GUAEIOED esiricividitisieiodeeetitesenteibsiaadsees 19

§ OB 1Ca), 208 Bi BOD naa icisisivccssnspedovntoesysce 19

§ 961(1)(1), 108 Stat. 501 (18 U.S.C. 3293) ...... 19

Violent Crime and Law Enforcement Act of 1994

Pub. L. No. 103-322, Tit. XX XIII, § 330002(e), 19

108 Beat. BIO 0. sirssovsvocvysvesvilisicccsscvansiredvecssiscisisesss

18> UGA BEE iieisciitiescebncesditwssiinccscutdntnnnsidietiiines 2

1B UBT. vciapccisicecesdstinisbintbabicinsinbseaseensctaestianae 2

1S Uy A ii sihsicdetescictincconctcsevceapetcgoemiubtiabatiins 2

BD i i sbbiaccbicks ckewivtin cacensninciatuedaebecens 2, 20, 21, 22

1B Fait iid ads cnicchincsctionsdccpabiveuniaciiuniechas 5

Fed. R. Crim. P.:

BONN SIE okth i cndiniciininitbtnconbinnedonntdecksbontiabeiiiiains 15

TE isisdctvbicediinsncccdicecsvikccstatsubauinerlintbesaaaes 20

-

VII

Miscellaneous: Page

Model Penal Code (Tent. Draft No. 6, 1957) ............ 23

1 Charles Alan Wright, Federal Practice and Pro-

cedure (2d ed. 1982 & 1993 Supp.) ........ccccsssescseseres 17

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-805

WILLIAM MULDERIG, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 5a-

35a) is reported at 120 F.3d 534. The opinions of the

district court that are included in the appendix to the

petition (Pet. App. la-4a, 37a-48a, 49a-50a) are un-

reported.

JURISDICTION

The judgment of the court of appeals was entered on

August 15, 1997. A petition for rehearing was denied

on September 12, 1997. The petition for a writ of cer-

tiorari was filed on November 12, 1997. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Louisiana, peti-

tioner was convicted of conspiring, in violation of 18

U.S.C. 371, to misapply bank funds in violation of 18

U.S.C. 657, to make false entries in bank records in

violation of 18 U.S.C. 1006, and to make false state-

ments to influence a federal agency in violation of 18

U.S.C. 1008 (Count 1); making a false statement to a

financial institution, in violation of 18 U.S.C. 1008

(Count 2); and aiding and abetting the misapplication

of bank funds, in violation of 18 U.S.C. 657 (Count 8).'

The district court sentenced him to concurrent terms

of 54 months’ imprisonment on Counts 1 and 3 and to

five years’ probation on Count 2, and ordered him to

1 The jury also found petitioner guilty on three additional

counts of aiding and abetting the misapplication of bank funds.

The district court granted his motion for judgments of acquit-

tal on those counts. On the government’s cross-appeal, the

court of appeals affirmed that ruling. Pet. App. 6a, 33a-35a. In

addition, co-defendants John and Joseph Mmahat were con-

victed of multiple conspiracy misapplication of bank funds, and

false statement offenses. Joseph Mmahat died during the

pendency of his appeal. The court of appeals affirmed John

Mmahat’s convictions and affirmed Joseph Mmahat’s convic-

tions to the extent they supported the restitution order against

him, and this Court denied review. United States v. Mmahat,

106 F.3d 89, 98 (5th Cir.), cert. denied, 118 S. Ct. 136, 118 S. Ct.

200 (1997).

Before trial, co-defendant David Lichtenstein pleaded guilty

to a single misapplication count (Count 9). He testified for the

government at petitioner’s trial pursuant to a plea agreement.

Michael Farley and William Walter testified for the govern-

ment pursuant to plea agreements in other cases. Marie

Sciortino testified for the government under a grant of immu-

nity. Gov’t C.A. Br. 2-3 n.1.

3

pay restitution in the amount of $1,032,000. The court

of appeals affirmed. Pet. App. 5a-35a.

1. John and Joseph Mmahat were brothers and

chairman and president, respectively, of Gulf Federal

Savings Bank, a federally insured financial institu-

tion located in Metairie, Louisiana. A 1983 federal

audit revealed that Gulf Federal was essentially

insolvent and that some of its commercial loans were

unlikely to be repaid. Pet. App. 6a. To reduce the

apparent amount of delinquent loans, the Mmahats

made two sham loans to shell corporations owned by

petitioner, an attorney and entrepreneur. See ibid.

The first sham loan stemmed from a transaction

involving CPA Associates (CPA), an investment

partnership that had acquired, through a Gulf Federal

loan, a set of townhomes known as Cypress Park. By

late 1984, CPA was delinquent on its loan. Instead of

foreclosing, the Mmahats arranged for Cypress Park

to be purchased by K & K Financial Services (K & K),

which was owned by petitioner, for $2,069,000. Pet.

App. 6a. On December 28, 1984, Gulf Federal loaned K

& K $2,169,000 to finance the transaction. Most of the

money was used to pay off the CPA loan; petitioner

received $100,000 in loan proceeds after the CPA loan

payoff. Petitioner later submitted to Gulf Federal a

financial statement for K & K to complete the neces-

sary loan documentation. The statement, however,

did not reflect loans of $1.4 million that another bank

had made to K & K to finance various other enter-

prises of petitioner. Pet. App. 6a-7a; Gov’t C.A. Br. 8-

9.

The second loan was similar, and was closed on the

same day, December 28, 1984. Gulf Federal had fi-

nanced the purchase by Ronald Frank of the Nel

Place apartment complex, but Frank became unable to

4

make his payments. Gulf Federal persuaded peti-

tioner to buy Nel Place and replace the failing loan

with one to Dermul Management (Dermul), one of

petitioner’s companies. Frank sold Nel Place to

Dermul for $1,632,730, and Gulf Federal loaned

that amount to Dermul along with an additional

$971,312.75, which was secured by petitioner’s

promise to furnish Gulf with a valid deed of trust for

property he owned in Goshen, New York. Neither

sham loan was repaid, and Gulf Federal went into

receivership in November 1986. Pet. App. 7a; Gov’t

C.A. Br. 8-10.

2. a. Petitioner and the Mmahats were indicted on

December 16, 1993. Before trial, petitioner moved to

dismiss the indictment on grounds of excessive pre-

indictment delay. After an evidentiary hearing, the

district court ruled that petitioner had suffered

prejudice from preindictment delay. Following an in

camera review of prosecution files, however, the

court denied petitioner’s motion, finding that the

government had not intentionally delayed the indict-

ment to obtain a tactical advantage. After the jury

returned its verdict, petitioner renewed his claim of

intentional delay, which included a request for an

evidentiary hearing and disclosure of the govern-

ment’s investigative files. The district court denied

the motion. Pet. App. 7a; Gov’t C.A. Br. 26-28.

Subsequently, relying on United States v. Crouch,

84 F.3d 1497 (5th Cir. 1996) (en banc), cert. denied, 117

S. Ct. 736 (1997), petitioner moved again for an eviden-

tiary hearing and discovery on the delay issue. 1 6th

Supp. R. 25-194. The district court denied the motion.

Pet. App. 49a-50a. It observed (id. at 50a) that the

limited record in Crouch was “not an issue in this

case,” because the court had “preserved an extensive

5

record on this issue and fully investigated claims of

bad faith by the government.” After recapping the

contents of the record and its own prior analysis of

the issue, the court reiterated its finding that “the

government’s reasons for the delay, extensive docu-

mentary evidence, interlocutory appeals to the Fifth

Circuit, the lack of investigative personnel, and the

need to properly investigate a complex case did not

rise to the level of intentional delay.” Ibid.

b. On May 24, 1995, approximately 110 days after

the district court ruled on Mulderig’s initial post-

trial motion, see 11 R. 2702-2723, petitioner claimed

for the first time that his conspiracy and false state-

ment convictions were barred on statute of limita-

tions grounds. He argued that Congress’s 1994 repeal

of the ten-year statute of limitations applicable to his

false statement offense reinstated the general five-

year statute of limitations applicable to federal

crimes (18 U.S.C. 3282), and that his 1993 indictment

—filed more than five years after commission of the

1985 false statement offense—was therefore time-

barred. He further argued that, because (in his view)

one of the objects of the conspiracy charged in Count

1, i.e., the false statement offense charged in Count 2,

was legally insufficient, his Count 1 conviction could

not stand. See 1 Supp. R. 125-132; Gov’t C.A. Br. 46.

Without reaching the question whether petitioner

had waived his statute of limitations claim, see 2 2d

Supp. R. 409 n.1, the district court rejected it on its

merits. Id. at 407-409. The court held (id. at 408) that

the cases relied on by Mulderig had no application to a

situation where a statute of limitations was reduced

between indictment and trial. The court explained

(td. at 409) that it is sufficient that an indictment is

filed within the applicable statute of limitations; the

6

validity of that indictment is not impaired by a post-

indictment reduction in the length of the statutory

period. See also Gov’t C.A. Br. 46-47.

c. In a post-trial motion for judgment of acquittal,

petitioner argued that the evidence was insufficient

to support his conviction on Count 2 for knowingly

submitting a false K & K financial statement to Gulf

Federal. In particular, he argued that the statement

was not false because it was intended as a “snapshot

in time.” Finding that the jury had reasonably re-

jected that argument, the district court denied the

motion. See 11 R. 2711-2712.

3. The court of appeals affirmed. Pet. App. 5a-35a.

With respect to petitioner’s claim of entitlement to

discovery and an evidentiary hearing on the issue of

preindictment delay, the court noted (id. at 10a) that

in Crouch it had “neither stated nor implied that a

defendant who has suffered actual and substantial

prejudice as a result of the Government’s preindict-

ment delay is automatically entitled to an evidentiary

hearing.” The court also observed that “an in camera

inspection by a district judge is a reasonable pro-

cedure and is protective of the defendant’s rights.”

Ibid. (quoting United States v. Killian, 639 F.2d 206,

210 (5th Cir.), cert. denied, 451 U.S. 1021 (1981)).

Noting that the district court had conducted an in

camera, ex parte review of the government’s docu-

ments and found meritless the petitioner’s claim that

the government had intentionally delayed his indict-

ment to gain a tactical advantage, the court stated

that it had itself reviewed the sealed documents filed

by the district court and had concluded that the

district court had not abused its discretion in denying

petitioner’s motion. Pet. App. 10a-11a.

7

The court of appeals also rejected (Pet. App. 11a)

petitioner’s claim that the statute of limitations

barred his convictions on Counts 1 and 2. Noting that

such a defense is waived if not asserted at trial and

that petitioner had not asserted his claim until almost

110 days after his trial had concluded, the court con-

cluded (ibid.) that petitioner had waived the defense.’ :

Finally, the court of appeals rejected (Pet. App. 30a) |

petitioner’s contention that the evidence did not

support his false statement conviction because the

July 1984 K & K financial statement was literally

true. Characterizing petitioner’s argument as “beside

the point,” the court pointed out that it was “undis- :

puted” that as of February 1985 K & K had $1.4 mil- :

lion in outstanding loans that did not appear on the

statement and that should have been, but were not,

brought to Gulf Federal’s attention. Jbid. The court

held (ibid.) that the jury could reasonably have con-

cluded that petitioner’s after-the-fact submission of

an incomplete financial statement was intended to

convince federal regulators that the K & K loan was

properly documented and that K & K itself was

financially sound.®

2 In fact, the claim was not asserted until more than six

months after trial. See p. 19, infra.

3 The court of appeals also rejected petitioner’s arguments

that the government had violated his rights under Brady v.

Maryland, 373 U.S. 83 (1963), see Pet. App. 1la-13a; that he

had been denied a fair trial by the denial of his motion for sev-

erance, by prosecutorial misconduct, and by an evidentiary

ruling, see id. at 13a-14a; that the district court had erred by

declining to exercise jurisdiction over his third post-trial mo-

tion for a judgment of acquittal and by denying his related mo-

tion for a new trial on the basis of newly discovered evidence,

see id. at 16a-24a; and that the evidence was insufficient to sup-

port his convictions, see id. at 24a-33a. The court also declined

8

ARGUMENT

1. Petitioner contends (Pet. 11-20) that the court

of appeals erred in ruling that, in order to establish a

violation of due process by reason of excessive pre-

indictment delay, a defendant must show not only that

he suffered actual and substantial prejudice from the

delay, but also that the government intentionally

caused the delay in order to gain a tactical advantage

over the defendant, and that the courts of appeals are

in conflict over the standard for determining claims of

preindictment delay. Although petitioner is correct

in his assertion of a conflict, that conflict is not prop-

erly presented on the facts of this case. Moreover,

under either of the competing legal standards applied

in the courts of appeals, petitioner would not be en-

titled to relief. Accordingly, further review is un-

warranted.‘

a. The principal protection against preindictment

delay is afforded by the applicable statute of limita-

tions. Nevertheless, the Due Process Clause “has a

limited role to play in protecting against oppressive

delay” in the filing of an indictment. See, e.g., United

(id. at 8a-9a) to issue a writ of mandamus that petitioner had

sought in a related proceeding. In addition, the court affirmed

(id. at 33a-35a) the district court’s ruling that the evidence did

not support petitioner’s convictions on Counts 5, 7, and 8 of the

indictment.

4 Petitioner states (Pet. 7-8) that the prosecutors in this case

committed misconduct when -they failed to direct his attention

to certain specific documents that were among the voluminous

documents produced during discovery, and that the prosecu-

tors also failed to produce certain documents that he asserts

were material and exculpatory. Those claims were rejected by

the court of appeals, see Pet. App. 1lla-13a, 23a, and petitioner

has not sought review of those rulings in this Court.

9

States v. Lovasco, 431 U.S. 783, 789 (1977). That

limited protection, the Court ruled in Lovasco (id. at

789-790), is available only when the defendant has

suffered actual prejudice from the delay, and the

government’s reasons for the delay are not adequate

to justify not going forward with a trial, in light of

“fundamental conceptions of justice.” Jd. at 790-791

(citations and internal quotation marks omitted). The

Court held that, while delay would not be justified

where the government sought “to gain tactical advan-

tage over the accused,” id. at 795 (quoting United

States v. Marion, 404 U.S. 307, 324 (1971)), delay in

order to conduct or complete the investigation does

not deprive a defendant of due process, ibid.

Investigative delay remains justifiable even when

sufficient evidence exists to seek an indictment and

even when the continued investigation focuses not on

the defendant himself but on other participants in

related criminal activity. See Lovasco, 431 U.S. at

791-796. Such “investigative delay is fundamentally

unlike delay undertaken by the Government solely ‘to

gain tactical advantage over the accused.’” Id. at 795.

The lower courts have adopted different approaches

in applying the Lovasco standard. As the court below

held in Crouch, 84 F.3d at 1514, most of the courts of

appeals have ruled that relief is available only if the

defendant is actually prejudiced and the government

intended to delay the indictment in order to obtain a

tactical advantage over the defendant or for some

other bad faith purpose. See, e.g., United States v.

Hayes, 40 F.3d 362, 365 (11th Cir. 1994), cert. denied,

516 U.S. 812 (1995); United States v. Stierwalt, 16

10

F.3d 282, 285 (8th Cir. 1994);° United States v.

Engstrom, 965 F.2d 836, 839 (10th Cir. 1992); United

States v. Brown, 959 F.2d 638, 66 (6th Cir. 1992);

United States v. Ismaili, 828 F.2d 153, 167 (d Cir.

1987), cert. denied, 485 U.S. 985 (1988); United States

v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987), cert. denied,

484 U.S. 1035 (1988); United States v. Crooks, 766 F.2d

7, 11 (1st Cir.) (Breyer, J.), cert. denied, 474 U.S. 996

(1985). That reading of Lovasco is consistent with

this Court’s description of the due process violation

in cases of preindictment delay as resting on actual

prejudice and deliberate delay for the purpose of

obtaining a tactical advantage. See Arizona v.

Youngblood, 488 U.S. 51, 57 (1988); United States v.

Gouveia, 467 U.S. 180, 192 (1984); United States v.

Marion, 404 U.S. at 324.

Three circuits apply a “balancing” test in assess-

ing a due process challenge for preindictment delay.

The Ninth Circuit has held that if the defendant

shows prejudice, the court must then balance the

length of the delay against the government’s reasons

for the delay. See, e.g., United States v. Bracy, 67

F.3d 1421, 1427 (9th Cir. 1995); United States v. Val-

entine, 783 F.2d 1413, 1416 (9th Cir. 1986). The Sev-

5 In an earlier case, which petitioner cites (Pet. 13), the

Eighth Circuit appeared to endorse a balancing test weighing

the reasons for the delay against the actual prejudice to the de-

fendant, once the defendant had demonstrated actual preju-

dice. United States v. Savage, 863 F.2d 595, 598 (1988), cert.

denied, 490 U.S. 1082 (1989). The Eighth Circuit does not

appear to have recognized the intracircuit tension between its

implicit acceptance of the majority approach in Stierwalt and

its seeming endorsement of the minority view in Savage. In

neither case, however, did the court dismiss the indictment, as

the defendants had sought.

11

enth Circuit has held that once the defendant shows

prejudice, the burden shifts to the government to ex-

plain the reasons for the delay, and that the court bal-

ances the prejudice against those reasons. See, ¢.9.,

United States v. Canoy, 38 F.3d 898, 902 (7th Cir.

1994);° United States v. Sowa, 34 F.3d 447, 451 (7th

Cir. 1994), cert. denied, 5138 U.S. 1117 (1995). The

Fourth Circuit has held that if the defendant shows

actual prejudice from the delay, the court must bal-

ance the defendant’s prejudice against the govern-

ment’s justification for the delay to determine

whether the delay violated fundamental conceptions of

justice or the community’s sense of fair play and de-

cency. Howell v. Barker, 904 F.2d 889, 895 (4th Cir.),

cert. denied, 498 U.S. 1016 (1990).’

§ Petitioner cites (Pet. 13) Canoy, 38 F.3d at 901-902, for the

proposition that “[w]here * * * the prejudice is extreme, no

showing of bad faith or negligence is required.” Later Seventh

Circuit cases make clear that this is not the law. See e.9.,

United States v. Pardue, No. 97-1730, 1998 WL 25694 (7th Cir.

Jan. 26, 1998), at *8. Nor can Canoy itself be read to stand for

that proposition. Instead, it merely describes the differing

standards for determining claims of preindictment delay, ap-

plies the minority standard, and concludes that the defendant

failed to show actual and substantial prejudice. 38 F.3d at 901-

902. In addition, it notes that even if the defendant had shown

such prejudice, his claim would fail because there was “no

evidence indicating that the government had delayed the

indictment in bad faith in order to gain a tactical advantage.”

Id. at 903. There is no such evidence in the present case

either.

7 In Jones v. Angelone, 94 F.8d 900 (4th Cir. 1996), the

Fourth Circuit questioned whether a balancing test is the

proper standard under Lovasco. The court noted that most of

the courts of appeals do not use a balancing test, and that a bal-

ancing test appeared to be inconsistent with this Court’s formu-

lation of the Lovasco standard in Gouveia, Youngblood, and

12

The conflict in the circuits on this issue is not

properly presented in this case. Even assuming that

petitioner experienced some prejudice from delay,’ he

still is not entitled to relief. The government’s rea-

sons for the delay must be considered, and they do not

provide any support for petitioner’s claim of a viola-

tion of due process. The government’s delayed action

did not reflect a purpose to obtain a tactical advantage

over petitioner or stem from any other “bad faith”

reason. On the contrary, as the district court found

(Pet. App. 50a), those reasons, i.e., “extensive docu-

mentary evidence, interlocutory appeals to the Fifth

Circuit, the lack of investigative personnel, and the

need to properly investigate a complex case did not

rise to the level of intentional delay.” That finding

defeats petitioner’s claim that he was entitled to have

his indictment dismissed for preindictment delay.’

Marion. The court recognized, however, that only the en banc

court could overrule Howell. Id. at 904-905. The court ruled

that under the Howell balancing test, the defendant was not

entitled to relief. Jd. at 909.

8 The district court’s finding of “prejudice” was based on

the fact that some additional testimony and some additional

documents were lost; it does not appear to have been based on a

determination that the lost testimony or documents would in

fact have been exculpatory. See Pet. App. 46a-47a. Such loss

of evidence that could not be shown to have been exculpatory

would be insufficient in any event to show the sort of prejudice

that could support a claim of prejudicial preindictment delay in

violation of the Due Process Clause.

® The district court’s factual findings, left undisturbed by

the court of appeals, are sufficient to refute petitioner’s sugges-

tion (see Pet. 18) that the government decided to seek peti-

tioner’s indictment because it learned that the death of a wit-

ness and the loss of files had deprived petitioner of exculpatory

evidence. Those findings likewise refute petitioner’s sugges-

13

Given the findings in this case, the difference be-

tween the two-pronged rule adopted by most of the

courts of appeals and the balancing test used in three

circuits would not have had any effect on the outcome.

When the defendant fails to show that the government

delayed the indictment to obtain a tactical advantage

or for some other bad faith reason, or the record

affirmatively shows (as in this case) that the govern-

ment did not delay the proceedings to obtain a tactical

advantage over the accused, the courts that apply the

balancing test have to date uniformly denied relief.

See, e.g., Bracy, 67 F.3d at 1427 n.3 (defendants would

not prevail even if they showed actual prejudice,

because “the district court’s determination that the

government had legitimate reasons for the delay is

not clearly erroneous”); Canoy, 38 F.3d at 901-902

(noting that “there is no evidence that the govern-

ment delayed the indictment in bad faith in order to

gain a tactical advantage” and stating that therefore

“even if [defendant] had shown actual and substantial

prejudice from the delay, we would not find a violation

of due process”); see also United States v. Automated

Medical Laboratories, Inc., 770 F.2d 399, 403-404 (4th

Cir. 1985). Accordingly, petitioner’s claim would not

have succeeded even had it arisen in a court following

the minority, balancing approach. Indeed, in light of

the decided cases to date, the circuit conflict appears

to be more theoretical than real. While the issue

might warrant this Court’s review in an appropriate

case, that review should await a case in which it

becomes clear that the different tests would produce

different outcomes.

tion (Pet. 15) that his prosecution violated “fundamental con-

ceptions of justice” (Lovasco, 431 U.S. at 790-791).

M4

b. Contrary to petitioner’s secondary contention

(see Pet. 19-20), the courts below correctly rejected

petitioner’s argument that’ he was entitled to dis-

covery and an evidentiary hearing. A district court is

not compelled to hold an evidentiary hearing on a

claim of intentional preindictment delay. See United

States v. Muniz, 1 F.3d 1018, 1024 (10th Cir.), cert.

denied, 510 U.S. 1002 (1993); cf. United States vi: MMR

Corp., 954 F.2d 1040, 1046 (5th Cir. 1992) (a “thorough

inquiry into the basis for [a] motion [to dismiss for

government misconduct] could be conducted without

an evidentiary hearing”). Instead, the decision to

conduct an evidentiary hearing, and by implication to

order discovery, is committed to the sound discretion

of the trial court. See, e.g., United States v. Valona,

834 F.2d 1334, 1340 (7th Cir. 1987); see also United

States v. Reeves, 892 F.2d 1223, 1226 (5th Cir. 1990)

(discovery rulings reviewed for abuse of discretion).

In the present case, the district court acted within

its discretion in denying petitioner’s motion for dis-

covery and an evidentiary hearing on the reasons for

preindictment delay. As the district court pointed out

(Pet. App. 50a), it conducted a full investigation of

petitioner’s claim and preserved an extensive record

on it. The investigation included an in camera re-

view of pertinent documents from the government’s |

files, four of which were filed under seal, and the

court’s interrogation of the prosecutor about the

reasons for the delay. Ibid; see also 6 R. 1480-1481.

That investigation fully satisfied any requirement of

a “thorough inquiry” (MMR Corp., 954 F.2d at 1046)

into the basis for petitioner’s motion, and convinc-

ingly refutes petitioner’s claim that the court abused

its discretion in denying his request for discovery

and an evidentiary hearing.

15

In essence, petitioner sought by his discovery

motion to embark on a fishing expedition into the

investigative files, which are expressly protected

from discovery by Federal Rule of Criminal Pro-

cedure 16(a)(2). The district court was not obliged to

permit such an expedition. See United States v.

Arditti, 955 F.2d 331, 345 (5th Cir.) (no abuse of

discretion in denying discovery request that borders

on fishing expedition), cert. denied, 506 U.S. 998

(1992); cf. United States v. Armstrong, 116 S. Ct. 1480,

1488 (1996) (high threshold required to obtain dis-

covery from the government on a selective prose-

cution claim); United States v. Johnson, 872 F.2d 612,

620 (5th Cir. 1989) (in camera review of alleged

Brady material proper in response to anonymous

letter; prosecutor not obliged to open files to defen-

dant for fishing expedition).”

” Petitioner concedes (Pet. 19) that the decisions he cites to

support his claim that he was entitled to discovery and an evi-

dentiary hearing had not “specifically address{ed] this issue.”

Those cases stand at most for the proposition that a district

court may permit such discovery or evidentiary hearing in an

appropriate case. They therefore do not conflict with the

ruling of both courts below that this was not such a case. For

example, in United States v. Ross, 123 F.3d 1181, 1186 (9th

Cir. 1997), cert. denied, 118 S. Ct. 783 (1998), the court merely

stated that defendant’s counsel had in fact been permitted to

depose the prosecutor about the reasons for the preindictment

delay; the court did not hold that a defendant claiming

prejudicial preindictment delay was entitled in each case—or in

any particular class of cases—to take such a deposition.

Moreover, the only other two decisions petitioner cites—

Crouch and United States v. Surface, 624 F.2d 23, 25 n.2 (5th

Cir. 1980)—were earlier decisions of the Fifth Circuit. The

court of appeals explained in this case that its decision did not

conflict with its earlier decision in Crouch. See Pet. App. 10a-

lla. Even if there were any disagreement between the

ea

16

2. Petitioner next contends (Pet. 20-23) that the

court of appeals erred in holding that he had waived

his statute of limitations claim, and that the courts of

appeals are in conflict over this issue as well. Peti-

tioner’s contentions lack merit. The court of appeals

correctly held that he had waived his claim that the

statute of limitations barred his prosecution. More-

over, even if petitioner had not waived that claim, he

could not prevail on it. Accordingly, the present case

is not a suitable vehicle for resolving any conflict that

may exist in the courts of appeals over the issue.

It is well settled that the running of the statute of

limitations does not defeat a trial court’s jurisdiction.

Rather, it is an affirmative defense that is waived if

not raised before or during a defendant’s trial. See,

e.g., United States v. Barakett, 994 F.2d 1107, 1110

(5th Cir. 1993), cert. denied, 510 U.S. 1049 (1994);

United States v. Acevedo-Ramos, 961 F.2d 305, 307

(1st Cir.), cert. denied, 506 U.S. 905 (1992); United

States v. Arky, 938 F.2d 579, 582 (5th Cir. 1991), cert.

denied, 503 U.S. 908 (1992); United States v. Karlin,

785 F.2d 90, 92 (8d Cir. 1986), cert. denied, 480 U.S. 907

(1987); United States v. Walsh, 700 F.2d 846, 855 (2d

Cir.), cert. denied, 464 U.S. 825 (1983); United States

v. Williams, 684 F.2d 296, 299-300 (4th Cir. 1982), cert.

denied, 459 U.S. 1110 (1983); see also Biddinger v.

Commissioner of Police, 245 U.S. 128, 185 (1917);

United States v. Cook, 84 U.S. (17 Wall.) 168, 178

(1872). To benefit from a limitations defense, a defen-

dant must affirmatively assert it. United States v.

decision of the court of appeals here and the decisions of the

same court in Crouch and Surface, that disagreement would be

a matter to be resolved by the Fifth Circuit, not this Court.

See Wisniewski v. United States, 353 U.S. 901, 901-902 (1957).

17

Meeker, 701 F.2d 685, 687 (7th Cir.), cert. denied, 464

U.S. 826 (1983); see also 1 Charles Alan Wright, Fed-

eral Practice and Procedure § 198, at 707-708 & n.52

(2d ed. 1982 & 1993 Supp.).

There is no merit to petitioner’s claim (Pet. 22-23)

that a waiver of the statute of limitations must be ex-

press and knowing. See, e.g., United States v. DeTar,

832 F.2d 1110, 1115 (9th Cir. 1987) (request for lesser-

included-offense instruction on allegedly time-barred

charge waives limitations defense); Williams, 684

F.2d at 299-300 (same). The cases that have directly

addressed the issue have held that the defense is

deemed waived if it is not raised at trial. Karlin, 785

F.2d at 92; Meeker, 701 F.2d at 687; cf. Acevedo-

Ramos, 961 F.2d at 308-309. Indeed, there is no

apparent reason why the statute of limitations

defense “alone, of all the defendant’s affirmative de-

fenses, should not be waived if not asserted at trial.”

Arky, 938 F.2d at 582.

Contrary to petitioner’s claim (Pet. 21), the deci-

sion in this case does not create a conflict with the

Tenth Circuit’s decisions in Waters v. United States,

328 F.2d 739 (1964), and United States v. Cooper, 956

F.2d 960 (1992), warranting this Court’s review. The

Tenth Circuit initially concluded in Waters that the

statute of limitations defense could be raised for the

first time on appeal. 328 F.2d at 748. But the Tenth

Circuit subsequently observed in United States v.

Gallup, 812 F.2d 1271, 1280 (1987), that “i]t is well

settled that the statute of limitations is an affirma-

tive defense which is waived unless raised at trial.”

See United States v. Percio, 870 F.2d 1090, 1093 (6th

Cir. 1989) (noting Tenth Circuit’s apparent reevalua-

tion of Waters).

18

The court in Cooper did allow a defendant who had

pleaded guilty to raise a statute of limitations defense

because there had been no express waiver of that

defense. The facts of Cooper, however, are quite dif-

ferent from the facts here. In Cooper, the defendant

pleaded guilty pursuant to a plea agreement reached

before the statute of limitations had run; after enter-

ing the plea, she learned that the information, al-

though timely lodged with the court by the govern-

ment, had not been filed until after the statute of

limitations had expired." The defendant raised the

statute of limitations defense in the district court as

soon as she learned of the facts supporting it, but the

district court held that the defense was waived by her

guilty plea. The court of appeals reversed, stating

that “while we agree with those courts which hold

that a defendant can waive the statute of limitations,”

there was no express waiver in the case before it. 956

F.2d at 962. The court concluded that “(t]he defendant

simply entered a plea to a barred charge” and was

entitled to relief. Jd. at 963.

While we disagree with the Tenth Circuit’s analy-

sis in Cooper, the unusual facts of that case are not

comparable to this case. In Cooper, the court noted

that the defendant (as well as the government) had

been “misled into believing that the information had

been filed timely,” and concluded that in those cir-

cumstances no waiver had occurred. 956 F.2d at 960.

Here, as petitioner concedes (Pet. 20), the asserted

ul “The record indicates that the government presented the

information to the court before the statute expired, but it was

retained by the court’s staff and not actually lodged or dock-

eted until after Mrs. Cooper’s arraignment.” 956 F.2d at 961

n.2.

19

ground for his raising of the defense, the deletion

from 18 U.S.C. 3293 of the reference to 18 U.S.C. 1008,

oceurred before his trial.” But petitioner, although

represented by counsel whose competence he has not

questioned, did not raise the defense until his second

post-trial motion for a judgment of acquittal. The

motion was filed approximately 110 days after the

district court had disposed of his post-trial motion,

and more than six and one-half months after the jury

had returned its verdicts. On the facts of this case,

there is no reason to believe that the Tenth Circuit

would relieve petitioner from his waiver of his statute

of limitations defense.*

Second, even if petitioner had not waived this claim,

no post-trial motion seeking dismissal of the indict-

2 Former 18 U.S.C. 1008 prohibited false statements

made for the purpose of influencing the Federal Savings and

Loan Insurance Corporation (FSLIC). In the Financial Insti-

tutions Reform, Recovery, and Enforcement Act of 1989

(FIRREA), Pub. L. No. 101-73, 108 Stat. 188 (Aug. 9, 1989),

Congress transferred the insurance functions of FSLIC to the

Federal Deposit Insurance Corporation (FDIC), see, e.g., Title

II, $ 205, 103 Stat. 194-195, enacted an amended 18 U.S.C. 1014

that, inter alia, replaced Section 1008, Pub. L. No. 101-73, Title

IX, § 961(h), 103 Stat. 500, repealed Section 1008 as superfluous,

§ 961(g)(1), 103 Stat. 500, and extended to ten years the statute

of limitations for certain financial institution offenses, in-

cluding violations of Section 1008, § 961(1)(1), 108 Stat. 501

(codified at 18 U.S.C. 3293). In 1994, Congress deleted as

obsolete the reference in 18 U.S.C. 3293 to former Section 1008.

Pub. L. No. 103-322, Title XXXIII, § 330002(e), 108 Stat. 2140

(Sept. 13, 1994).

% The other case cited by petitioner (Pet. 21) in support of

his claim of conflict, United States v. Percio, 870 F.2d 1090

(6th Cir. 1989), merely stands for the proposition that when a

defendant explicitly waives a limitations defense, he will be

held to that waiver. See id. at 1092-1094.

20

ment would have been timely unless it was filed

within the time period prescribed by Federal Rule of

Criminal Procedure 29%(c). See Carlisle v. United

States, 517 U.S. 416, 421 (1996). Under the most

generous interpretation of Rule 29(c), the time period

it prescribes ended on February 7, 1995, when the

district court ruled on petitioner’s first post-trial

motion. Petitioner’s second motion was filed on May

24, 1995, more than three months later.

And even if petitioner’s claim was neither waived

nor time-barred, it would still be without merit. It is

settled law that the timely filing of an indictment

tolls the statute of limitations as to the charges made

in that indictment. See United States v. Schmick, 904

F.2d 936, 940-941 (5th Cir. 1990), cert. denied, 498 U.S.

1067 (1991); United States v. Elliott, 849 F.2d 554, 561

(11th Cir. 1988); United States v. Grady, 544 F.2d 598,

601-602 (2d Cir. 1976). For the same reasons, al-

though an indictment is untimely if, at the time it is

filed, the statute of limitations has already expired,

see, e.g., Bridges v. United States, 346 U.S. 209, 224-

226 (1953), the timely filing of an indictment renders

irrelevant any later shortening of the statute of

limitations. Because, as petitioner concedes (Pet. 3,

20), the indictment in this case was timely filed

in December 19938, 1.e., within the ten-year period

specified for financial institution offenses in 18

U.S.C. 3293, the repeal of that ten-year period as to

violations of former 18 U.S.C. 1008 in September 1994

had no effect on petitioner’s prosecution for that false

statement offense. Cf. Schmick, 904 F.2d at 941

(superseding indictment filed after statute of

limitations runs is valid so long as charges not

broadened).

21

3. Finally, petitioner contends (Pet. 24-26) that the

court of appeals erred in holding that a literally true

statement can be the basis for a false statement con-

viction, and that that ruling is inconsistent with

Bronston v. United States, 409 U.S. 352 (1973). These

contentions do not warrant review.

To establish petitioner’s violation of former 18

U.S.C. 1008, the government was required to show

that (1) petitioner submitted or caused to be sub-

mitted to Gulf a false financial statement; (2) the false

statement was material;" (8) petitioner did so know-

ingly and for the purpose of influencing FSLIC’s ac-

tions; and (4) Gulf was insured by FSLIC. Gulf’s

insured status was beyond dispute. See, e.g., GXs 1A-

1C. The evidence further showed that on February

12, 1985, see GX 2D (cover letter), petitioner sub-

mitted to Gulf a July 23, 1984, financial statement for

K & K, GX 2E, that omitted more than $1.4 million in

loans made by Chemical Bank to K & K in October

and November 1994. See 21 R. 155-166, GXs 2F-2J

(detailing loans). A rational jury could have found

that the K & K statement was submitted as a purport-

edly accurate representation of K & K’s financial!

condition in February 1995, that the omission of $1.4

million in liabilities on the statement was material,

and that in light of petitioner’s statement to co-

defendant David Lichtenstein that he knew what bank

examiners needed to see, 26 R. 48, petitioner had sub-

mitted the statement in order to assist the Mmahats

in deceiving the examiners who were working on

4 We assume the element of materiality for present pur-

poses, see Pet. App. 29a, although the better view is that, in the

absence of any textual element of materiality, such proof is not

required. United States v. Wells, 117 S. Ct. 921 (1997).

22

FSLIC’s behalf. The jury was free to reject peti-

tioner’s argument (3 Supp. R. 60-61) that the state-

ment was not intended to show K & K’s financial

position in February 1985, but was rather meant only

as a “snapshot in time” of its position in July 1984.

The jury was likewise free, as the court of appeals

correctly pointed out (Pet. App. 29a-30a), to reject the

argument that petitioner makes here, i.e., that be-

cause the July 23, 1984, K & K financial statement he

submitted to Gulf in February 1985 was literally true

when first prepared, i.e., it accurately represented K

& K’s financial position on July 23, 1984, he did not

violate Section 1008. Contrary to petitioner’s asser-

tions, the false statement charged in Count 2 was

made not in July 1984, when the financial statement

was prepared, but in February 1985, when he provided

it to Gulf as a purportedly accurate portrait of K &

K’s current financial situation. As such, the state-

ment was not literally true. Instead, it omitted, inter

alia, millions of dollars in liabilities that K & K had

assumed in October and November 1994. See 21 R.

155-166, GXs 2F-2J (detailing loans). Accordingly,

the statement did not present an accurate picture

of K & K’s financial situation at the time it was

submitted. See United States v. Stephens, 779 F.2d

232, 237 (5th Cir. 1985) (submission of dated statement

omitting post-statement loans); United States v.

Clark, 546 F.2d 1130, 1134 (5th Cir. 1977) (submission

of form, not content of form, may be false “statement”

alleged in indictment). The court of appeals correctly

found that the evidence was sufficient to support

petitioner’s false statement conviction.

Petitioner’s reliance (Pet. 25) on Bronston v.

United States, 409 U.S. 352, 357-358 (1973), a perjury

prosecution, is misplaced. Bronston itself noted (id.

23

at 358 n.4, quoting Model Penal Code § 208.20, Com-

ment (Tent. Draft No. 6, 1957, at 124)) that in the case

of criminally fraudulent statements, the law goes

“rather far in punishing intentional creation of false

impressions by a selection of literally true repre-

sentations, because the actor himself generally

selects and arranges the representations.” In this

case, petitioner’s submission in February 1985 of a

July 1984 statement that no longer accurately re-

flected K & K’s financial position was at most an

“intentional creation of false impressions by a selec-

tion of literally true representations,” as “select[ed]

and arrange[d]” by petitioner.®

© The other cases relied on by petitioner (see Pet. 25), e.g.,

perjury prosecutions like United States v. Lighte, 782 F.2d 367,

373-374 (2d Cir. 1986) (unresponsive answers to grand jury

questions), or false statement prosecutions like United States v.

Mayberry, 913 F.2d 719, 721-722 (9th Cir. 1990) (bank’s accurate

statement of amount of money in customer’s account at specific

time), are likewise inapposite. They had no occasion to

consider the sufficiency of the evidence supporting a false

statement conviction in the circumstances presented here, i.e.,

the knowing intentional submission of a no longer accurate

financial statement to create the false impression that the K &

K loan was properly documented and that K & K’s financial

state was sounder than it was.

24

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

THOMAS M. GANNON

Attorney

MARCH 1998