
USCA1 Opinion

	




          January 5, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1571                                     UNITED STATES,                                      Appellee,                                          v.                                  THOMAS E. BEHENNA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Thomas E. Behenna on brief pro se.            _________________            Donald  K. Stern, United  States Attorney,  and Paul  G. Levenson,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                                         -2-                      Per Curiam.   This is an  appeal from the  district                      __________            court's judgment  denying the  motion of appellant  Thomas E.            Behenna to withdraw his guilty  plea.  Behenna pleaded guilty            to a  three-count information charging him  with making false            statements to Dime Savings Bank of New York ("Dime New York")            in violation of 18 U.S.C.   1014.                                     I.BACKGROUND                                     _ __________                      In  1987,  Charles McCormick,  a client  of Behenna            (who is an attorney), told Behenna about a chance to purchase            condominium  units at two condominium developments, Hawthorne            Village  in North  Attleboro and  Queens Court  in Plainview,            Massachusetts.   Behenna was informed that  these units could            be  purchased  with  almost  no  money  down.    Further, the            developer of Hawthorne Village, David Burns, told Behenna and            other  purchasers that  Burns  would give  them a  10 percent            second mortgage and a 10 percent "discount."                      Arrangements  were made  to have  Dime New  York, a            federally insured  bank, provide  the  financing through  its            "Impact"  loan program.   Under  this program,  purchasers of            residential  real  estate making  cash  down  payments of  20            percent of the purchase price received loan approval prior to            the  receipt  of  documents  verifying  financial  and  other            information contained  in their loan applications.   Dime New            York's wholly owned subsidiary,  Dime Real Estate Services of            Massachusetts  ("Dime  Mass."),  processed  the  Impact  loan                                         -2-                                         -2-            applications  in  Massachusetts;  Eric  Peach was  the  sales            representative who handled the loans in question.                      Behenna   and   the   other   purchasers   of   the            condominiums were  informed that instead of  cash, they could            use  the  10  percent  discount and  the  10  percent  second            mortgage as  the down  payment.  Nonetheless,  Behenna's loan            applications stated that cash down payments had been made and            his purchase and sale ("P  & S") agreements also  erroneously            reflected  the presence  of  20 percent  cash down  payments.            According  to Behenna, Peach was  aware of the  true terms of            the financing  and  told him  (Behenna)  that Dime  New  York            approved of  this type  of financing.   In  addition, Behenna            prepared  addenda to the P & S agreements which revealed that            the second  mortgages and the  discounts were the  sources of            the  down payments.    Behenna gave  the agreements  with the            addenda to Peach.                      After  the  loan  applications  were  approved, the            closings took place at the office of Dime's closing attorney,            Alan  Segal.    At  this  time,  Behenna  signed  Fannie  Mae            affidavits and HUD-1 settlement statements indicating that he            had made 20  percent cash  down payments.1   The HUD-1  forms            stated that  there was  no secondary financing  in connection            with  the purchases  and, in  the same  vein, the  Fannie Mae                                            ____________________            1.  These forms required a loan applicant to attest  that the            statements  contained in the forms were true and accurate and            warned that making false statements was a crime.                                         -3-                                         -3-            affidavits failed  to disclose  the second mortgages  and the            discounts.   Finally, Behenna  was aware, at  this time, that            the addenda were no longer attached to the P & S agreements.                      Eventually,  the  Federal  Bureau of  Investigation            conducted an investigation into  Dime New York's  allegations            of  fraud  in connection  with these  loans.   At  this time,            Behenna met with government personnel.  According to Behenna,            he was  told that  Dime New  York had  never authorized a  no            money  down loan program, that  it was unaware  of the second            mortgages and that it  did not have in its  files the addenda            to Behenna's P & S agreements.  After Behenna learned that he            was about to be indicted on charges of bank fraud, conspiracy            and making  false statements to a federally  insured bank, he            decided  to plead guilty.  In return for his cooperation with            the government, the government agreed to limit the charges to            the making of false statements.  During these discussions and            in  the subsequent  district  court proceedings,  Behenna was            represented by counsel.                      At his change of  plea hearing, Behenna stated that            he knew when he signed the Fannie Mae affidavits and the HUD-            1   settlement   statements   that   they   contained   false            information.   Pursuant  to the plea  agreement and  prior to            sentencing,  Behenna   testified   as  a   witness  for   the            prosecution in  the trial of Segal,  Dime's closing attorney,            and Robert  Kline,  an  attorney for  the  developer  of  the                                         -4-                                         -4-            condominiums  at Hawthorne Village.  At the end of trial, the            court  granted  Segal's  and  Kline's  motions  for  directed            verdicts.      One and a half months later, Behenna filed the            motion to withdraw his guilty plea.                      Behenna's   main  argument   was  that   his  false            statements were  not material  because the  Segal-Kline trial            evidence  showed that  the  bank management  connived in  the            scheme.  The district court invited briefs on the standard of            materiality under  the  statute.   Ultimately,  the  district            court  said  that  materiality  should  be  evaluated  on  an            objective basis and  the court denied the motion  to withdraw            the plea.  This appeal followed.                                      II.THE LAW                                      __ _______                      A.  Fed. R. Crim. P. 32(d) Standards                          ________________________________                      Before sentencing, a defendant may move to withdraw            his or her  guilty plea upon  a showing of  a "fair and  just            reason."   Fed.  R.  Crim. P.  32(d);  see United  States  v.                                                   ___ ______________            Parrilla-Tirado,  22 F.3d  368, 371  (1st Cir.  1994); United            _______________                                        ______            States  v.  Kobrosky,  711 F.2d  449,  454  (1st Cir.  1983).            ______      ________            Although the  standard in  this situation is  a liberal  one,            "[a]  defendant possesses  no  absolute right  to withdraw  a            guilty plea. . . ."  Kobrosky, 711 F.2d at 454; United States                                 ________                   _____________            v.  Ramos, 810 F.2d 308, 311  (1st Cir. 1987).  "[T]his court                _____            will not  set aside the  district court's  findings unless  a                                         -5-                                         -5-            defendant   unequivocally  shows  an  abuse  of  discretion."            Ramos, 810 F.2d at 311.  The factors we consider include:            _____                           (1)  the  plausibility  of  the                           reasons prompting the requested                           change of plea; (2)  the timing                           of the  defendant's motion; (3)                           the  existence or  nonexistence                           of  an assertion  of innocence;                           and (4) whether, when viewed in                           light        of        emergent                           circumstances,  the defendant's                           plea   appropriately   may   be                           characterized  as  involuntary,                           in     derogation     of    the                           requirements imposed by Fed. R.                           Crim.   P.  11,   or  otherwise                           legally suspect. . . .            Parrilla-Tirado, 22  F.3d  at  371  (footnote  and  citations            _______________            omitted).                      B.  Section 1014                          ____________                      Section  1014  prohibits  persons  from  "knowingly            make[ing] any false statement or report . . . for the purpose            of influencing in any way the action of . . . any institution            the accounts  of  which are  insured by  the Federal  Deposit            Insurance  Corporation . .  . upon any  application . .  . or            loan . .  . ."   To  convict a  defendant under    1014,  the            government must prove that                            (i)   the  defendant   made  or                           caused  to  be  made   a  false                           statement or report  to a  bank                           upon an application, commitment                           or  loan,  and  that the  false                           statement concerned a  material                           fact;  (ii) that  the defendant                           acted knowingly; (iii) that the                           false  statement or  report was                           made   for   the   purpose   of                                         -6-                                         -6-                           influencing  in   any  way  the                           bank's action on the  loan; and                           (iv)  that the  false statement                           or  report was  made to  a bank                           whose   deposits    were   then                           [federally] insured. . . .            United  States v.  Concemi,  957  F.2d  942,  951  (1st  Cir.            ______________     _______            1992).2   "A statement concerns  a material fact  when it has            the `capacity to influence' the lending institution."  United                                                                   ______            States v. Braverman,  522 F.2d 218, 223  (7th Cir.) (citation            ______    _________            omitted), cert.  denied, 423  U.S.  985 (1975).   See  United                      _____________                           ___  ______            States  v.  Haddock, 956  F.2d  1534,  1550 (10th  Cir.)  (an            ______      _______            omission in a personal financial statement is material  if it            "had the  capacity to influence the  bank's decision"), cert.                                                                    _____            denied, 113 S. Ct. 88 (1992).            ______                      Further,  materiality "is  not  merely directed  to            false statements which are  actually used in the  decision to                                        _____________            make a loan."   United States v. Goberman, 458  F.2d 226, 229                            _____________    ________            (3d  Cir. 1972) (emphasis added).  That is, the government is            not required  to show  that the lending  institution actually            relied on  the defendant's statements in  making its decision                                            ____________________            2.  We  reject,  out of  hand,  Behenna's  argument that  his            statements were not  made to  a federally insured  bank.   In            United  States  v. Brandon,  17  F.3d 409  (1st  Cir.), cert.            ______________     _______                              _____            denied, 115 S. Ct. 80, 81  (1994), we held, in the context of            ______            bank  fraud, that the government  "does not have  to show the            alleged  scheme  was  directed  solely  toward  a  particular                                            ______            institution;  it  is   sufficient  to  show  that   defendant            knowingly  executed   a  fraudulent  scheme  that  exposed  a            federally insured bank to a risk of loss."  Here, there is no            dispute  that the loans in question were assigned to Dime New            York.                                         -7-                                         -7-            to approve  a loan.    Id.   See Haddock,  956  F.2d at  1550                                   ___   ___ _______            (actual  reliance  need  not  be shown  to  meet  materiality            requirement); United States v. Wilcox, 919 F.2d 109, 112 (9th                          _____________    ______            Cir.  1990) ("no  actual influencing need  be demonstrated");            United  States  v. Norberg,  612 F.2d  1,  4 (1st  Cir. 1979)            ______________     _______            ("[i]t  is not the result  of the transaction  upon which the            statute focuses, but the purpose").  As the court in Goberman                                                                 ________            put it:                           Requiring proof  of reliance on                           the  statement  by the  lending                           institution  would  wreak havoc                           with    enforcement   of    the                           provision.       A   successful                           prosecution  for  the violation                           would  depend   on  the  wholly                           fortuitous  factor   of  actual                                                    ______                           reliance  and  not at  all upon                           ________                           the intent of the guilty party.                           The  obvious  result  would  be                           that  not all  statements which                           could   potentially  harm   the                           United States  would be subject                           to prosecution, undermining the                           legitimate   purpose   Congress                           sought to achieve.            Goberman, 458 F.2d at 229.            ________                                   III. DISCUSSION                                    ____ __________                      Behenna's primary  argument is that he  is innocent            of  violating    1014.    Specifically,  he claims  that  the            evidence  at  the trial  of Segal  and  Kline and  reports of            statements  given to  the FBI  by various  employees of  Dime            Mass. establish  that the bank,  in fact, had  authorized the            "no money down" payment  loan program.  He also  asserts that                                         -8-                                         -8-            this evidence shows that  he had made full disclosure  to the            bank  of  the  true  terms  of  his  financing  arrangements.            Behenna  argues that  he should  be allowed  to withdraw  his            guilty  plea because  the government misrepresented  the true            facts to him prior to his decision to plead guilty.                      In a case strikingly similar to this one, the Court            of  Appeals  for the  Fifth  Circuit  rejected a  defendant's            argument that his false statements did not  have the capacity            to  influence  the  lending  institution  because the  entire                                                                   ______            institution was  aware of defendant's scheme.   United States                                                            _____________            v. Johnson,  585 F.2d 119, 124  (5th Cir. 1978).   The court,               _______            assuming the  truth of  defendant's assertion concerning  the            extent  of the  lending  institution's  knowledge, held  that            "[t]he  focus of  the offense  is on  the defendant's  intent            rather than on the victim."  Id.  The court went on:                                         ___                           The phrase "for the  purpose of                           influencing in any way" defines                                       __________                           the    intent    required    to                           accompany a false statement and                           defines it broadly.   It  draws                           under  its  purview not  only a                           defendant   who   intends    to                           defraud  an  unwitting  insured                           institution    but    also    a                           defendant   who   intends    to                           cooperate with  the institution                           in a scheme requiring him, with                           the institution's knowledge, to                           make  false statements  for the                           furtherance of the scheme.  The                           savings and loan's awareness of                           the fraud is not  relevant, for                           its     existence    is     not                           inconsistent with the intent to                           influence which a violator of                                           -9-                                         -9-                           1014 must possess.   Thus, this                           collection  of   facts  labeled                           "complicity"  is not  a defense                           to  a  charged violation  of 18                           U.S.C.   1014.            Id.  See  also United States  v. Bush, 599  F.2d 72, 75  (5th            ___  ___  ____ _____________     ____            Cir.  1979) ("[T]he  words `for  the purpose  of influencing'            define the  quality  of  the  required intent,  they  do  not            immunize a party  in duplicity with a bank officer."); United                                                                   ______            States  v.  Kennedy,  564  F.2d 1329,  1340  (9th  Cir. 1977)            ______      _______            (defendant was not immunized from criminal  liability "merely            because the bank officer  was a party to the  scheme"), cert.                                                                    _____            denied,  435 U.S. 944 (1978); United States v. Niro, 338 F.2d            ______                        _____________    ____            439,  440 (2d  Cir.  1964) (the  court  described as  a  "non                                                                      ___            sequitur"  the argument  that  defendant's  false  statements            ________            could not have influenced the lender because the president of            the  lending  institution had  suggested  the  scheme).   Cf.                                                                      ___            Concemi, 957 F.2d at 944-45 (one of the defendants was a loan            _______            originator for the bank); Norberg,  612 F.2d at 2  (defendant                                      _______            was  the attorney  for and  a director  of the  bank); United                                                                   ______            States  v.  Sheehy,  541  F.2d  123,   124  (1st  Cir.  1976)            ______      ______            (defendant  was a  member of  the bank's  executive committee            which was responsible for approving loans).                      In  deciding  whether  to  allow   a  defendant  to            withdraw a guilty  plea, a court ordinarily  will "not decide            the merits of a proffered defense by resolving factual issues            that are more properly  decided at trial."  United  States v.                                                        ______________                                         -10-                                         -10-            Allard,  926 F.2d 1237, 1242 (1st Cir. 1991).  "However, when            ______            the defendant's  factual allegations,  even if true,  fail to            establish a cognizable defense, they  do not provide a reason            for permitting  withdrawal of a plea."   Id.  See also Ramos,                                                     ___  ___ ____ _____            810  F.2d  at  312  (Rule  32  motion  may  be  denied  if  a            defendant'sfactualcontentionsdonot createarecognizeddefense).                      Based on  the caselaw,  it is plain  that Behenna's            claim  of innocence must  fail.   Simply, the  assertion that            Dime New  York acquiesced in  the use of  secondary financing            and had full knowledge that borrowers often did not make cash            down payments in connection with the Impact loan program does            not  provide  a  defense  to   the  charge  of  making  false            statements under   1014.  See Johnson, 585 F.2d at  124.  The                                      ___ _______            relevant   determination  for   criminal  liability   is  not            dependent on whether the  lender relied, or even participated            in,   the  fraud;  rather,  the   offense  is  based  on  the            defendant's  "intent  to  influence  an  action,  and nothing            more."  Wilcox, 919 F.2d at 112.                    ______                      Further,  it  is  clear, notwithstanding  Behenna's            claim  to  the  contrary,  that he  possessed  the  requisite            intent.  In Wilcox, defendant submitted to a savings and loan                        ______            association phony vouchers stating that work on a real estate            development   had  been  completed.     These  vouchers  were            necessary to  obtain the  loan proceeds.   Defendant asserted            that   the  false   vouchers  were  submitted   according  to                                         -11-                                         -11-            instructions  from  the lender,  that  the  officials of  the            association never indicated that their advice  concerning the            vouchers  would lead  to  illegal conduct,  that  he had  not            intended to mislead the association and that although he knew            that  the   information  in  the  vouchers   was  false,  the            association was aware of the true circumstances.                       The court held:                            Here,  the  submission  of  the                           false vouchers  was designed to                           influence  the disbursement  of                           funds by the savings  and loan.                           The filing of the documents was                           a prerequisite to the financial                           institution's  payments of  the                           defendant's  claims.   In fact,                           under the procedures adopted by                           [the association], the payments                           could not have been made unless                           the  defendant  made the  false                           representations at issue.  That                           defendant    may    have   been                           encouraged  in this  scheme, or                           even  joined in  it, by  one or                           more bank officials affords him                           no defense at all.            Id.            ___                      As in Wilcox, the evidence shows that Dime New York                            ______            would not  have made an  Impact loan in  the absence of  a 20            percent deposit made up  of the borrower's own funds.   Thus,            Behenna's  false statements concerning the down payments were            necessary  prerequisites  to  obtaining the  proceeds  of the            loans and the statements were made  precisely for the purpose            of  influencing  Dime  New   York  in  making  its  decisions            regarding the loans.                                         -12-                                         -12-                      Finally,  one  of the  most significant  factors in            deciding whether a  defendant has  met his or  her burden  of            establishing  a  "fair and  just  reason"  for withdrawing  a            guilty  plea is  whether the plea  is knowing  and voluntary.            Allard, 926  F.2d at 1243; Kobrosky, 711 F.2d at 455.  In the            ______                     ________            change of plea hearing, the district court judge explained to            Behenna what rights he  was giving up by pleading  guilty and            what  the maximum  penalties were;  he next  ascertained that            Behenna had discussed these  matters with his attorney.   The            government laid out the  evidence it would present  at trial.            Asked  why he was pleading guilty, Behenna responded that the            HUD-1  statements  and  the Fannie  Mae  affidavits contained            false statements and that he knew this when he signed them.                      Nothing in the record of the change of plea hearing            indicates   that   Behenna  "was   anything  other   than  an            intelligent defendant who fully  understood what he was doing            and was competent voluntarily to enter [a] guilty plea."  See                                                                      ___            Kobrosky, 711 F.2d at  455; Ramos, 810 F.2d at  314 (district            ________                    _____            court's compliance with Fed. R. Crim.  P. 11 "weighs heavily"            against  a defendant).   In  this  situation, "[w]e  will not            permit   a  defendant   to   turn  his   back   on  his   own            representations to the court merely because it would suit his            convenience  to do so."  United States v. Pellerito, 878 F.2d                                     _____________    _________            1535,  1539  (1st Cir.  1989).   The  plea having  been given            knowingly and  voluntarily, we  cannot say that  the district                                         -13-                                         -13-            court judge abused his discretion by denying Behenna's motion            to withdraw his guilty plea.                      Given  our conclusions,  we reject  Behenna's claim            that there was  no factual basis  for his guilty  plea.   See                                                                      ___            United  States v.  Webb, 433  F.2d 400,  403 (1st  Cir. 1970)            ______________     ____            (where court  questioned defendant about the  elements of the            crime and  had the  prosecution present  the evidence it  had            gathered, there existed a factual basis for  the plea), cert.                                                                    _____            denied, 401  U.S.  958 (1971).    We also  find no  merit  in            ______            Behenna's  assertion that the government withheld exculpatory            evidence in  violation  of Brady  v.  Maryland, 373  U.S.  83                                       _____      ________            (1963).   Plainly, the information in the FBI reports was not            exculpatory.                      The judgment of the district court is affirmed.                                                               ________                                         -14-                                         -14-
