UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4449

JOHN H. PAYNE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CR-96-53-B)

Argued: March 6, 1998

Decided: June 24, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Thomas Dillard, RITCHIE, FELS & DILLARD,
P.C., Knoxville, Tennessee, for Appellant. Steven Randall Ramseyer,
Assistant United States Attorney, Abingdon, Virginia, for Appellee.
ON BRIEF: Ruth T. Ellis, RITCHIE, FELS & DILLARD, P.C.,
Knoxville, Tennessee, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Abingdon, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Defendant John H. Payne, Jr., was convicted in the Western Dis-
trict of Virginia of perjury under 18 U.S.C. § 1623(c) for knowingly
making, under oath, "two or more declarations, which [we]re incon-
sistent to the degree that one of them is necessarily false," and which
were material to the proceedings in which they were made. Id. The
jury found that Payne "made irreconcilably contradictory declara-
tions," id., when he testified in one proceeding, in essence, that he had
loaned his friend, Henry Stanley Hayes, $60,000 and that Hayes had
repaid $56,000 of that loan, and then testified in a subsequent pro-
ceeding that, although the money for the $60,000 loan literally sat on
the table, Hayes could not produce the requested collateral and there-
fore Payne never gave him any of the money. When questioned by an
FBI officer about these contradictions in his testimony, Payne was
unable to explain them. J.A. at 45.

Nevertheless, Payne challenges the sufficiency of the evidence for
his conviction by arguing to this court -- as he argued to the jury --
that his statements were not irreconcilably contradictory because there
were actually two separate loan transactions of around $60,000, one
of which was consummated and one of which was not, and that he
was talking about a different transaction in the first court proceeding
than in the second. There is no suggestion in Payne's testimony at
either proceeding, however, that Payne had made (or offered to make)
two $60,000 loans to Hayes. In fact, Payne not only failed to mention
the existence of two such loans at any of the critical junctures in his
testimony at which he would naturally have offered that information,
he also implied that no other $60,000 loan existed. Thus, a rational
jury could certainly have found, as the jury in this case did, that Payne
was talking about the same transaction in both court proceedings, and

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that his statements about that transaction were irreconcilably contra-
dictory. The judgment below is therefore affirmed.*

On October 20, 1994, Payne testified in the Western District of
Virginia at the sentencing hearing of his "old friend," Hayes, J.A. at
34-35, who had been convicted of fraudulently offering to sell gov-
ernment vehicles that he did not own. J.A. at 43. Payne's testimony
was apparently offered for the purpose of explaining where the pro-
ceeds of Hayes' fraudulent scheme had gone. When asked whether he
had loaned Hayes any money, Payne testified that he had, and when
asked how much he had loaned Hayes, Payne testified that he had
"loaned [Hayes] six notes, ten thousand dollars each." J.A. at 288.
Payne was also asked whether "Mr. Hayes pa[id him] back sixty thou-
sand dollars," and Payne testified that "[Hayes] paid it all back except
four thousand." J.A. at 290. Specifically, Payne testified that Hayes
paid him back -- mostly with cashier's checks-- in "December and
January, December of '93, January of '94, and the last payment was
made probably late March. He paid six thousand dollars on this last
note." Id. On cross-examination, Payne confirmed that Hayes had
paid him back $56,000 in 1994. J.A. at 293.
_________________________________________________________________
*Contrary to defendant's assertion, the prosecutor adequately identi-
fied which statements were inconsistent in his opening statement. J.A. at
26-32. Additionally, the indictment adequately alleged the offense with
which defendant was charged. Defendant has challenged the sufficiency
of his indictment because, while the indictment charged that he had made
inconsistent statements in the identified proceedings "concerning loans to
Henry Stanley Hayes and payments from Henry Stanley Hayes," J.A. at
7-8, it did not specifically identify which statements in those proceedings
were inconsistent. Payne first challenged his indictment post-trial, and
thus the indictment is liberally construed and "every intendment is . . .
indulged in support of [its] sufficiency," Finn v. United States, 256 F.2d
304, 307 (4th Cir. 1958) (holding that "[i]ndictments and informations
are construed more liberally after verdict than before" because after trial
it is "too late" for the government to cure any defect "by a simple amend-
ment"). Because the indictment gave fair notice to Payne of the charges
against him and would enable him "to plead double jeopardy in defense
of future prosecutions of the same offense," United States v. Sutton, 961
F.2d 476, 479 (4th Cir. 1992), the indictment is clearly sufficient. More-
over, the indictment adequately established venue in the Western District
of Virginia, and venue there was proper because one of the inconsistent
statements was made in a sentencing hearing in that district.

                    3
One of the victims of Hayes' fraudulent scheme then instituted
involuntary bankruptcy proceedings against Hayes in the Eastern Dis-
trict of Tennessee. Seeking to recover as much of Hayes' money as
possible to permit equitable distribution to Hayes' many creditors
(most of whom were victims of his scam), the bankruptcy trustee filed
an adversary proceeding against Payne -- based on Payne's testi-
mony at the sentencing hearing -- to recover as voidable preferences
those payments that Payne had testified Hayes made to him during
1994. J.A. at 49-50. Thus, if Payne testified in the bankruptcy pro-
ceedings that Hayes had repaid him more than $50,000 of a $60,000
loan, he risked being forced to disgorge that money to the bankruptcy
estate and recovering only a small percentage of that money in the
equitable distribution.

At his August 11, 1995, bankruptcy deposition in the Eastern Dis-
trict of Tennessee, Payne was asked specifically about the $60,000
loan to Hayes:

          Q[uestion]: One of the things Mr. Hayes has testified to is
          -- he has told us he executed six, ten thousand dollar notes
          with you, is that correct?

          A[nswer]: Probably.

          Q[uestion]: He was unable to tell the time frame, but the
          way he was describing it, it was in the latter part of the nine-
          ties, most recent time, is that correct?

          A[nswer]: Probably, yeah.

J.A. at 229. When asked how the notes arose, Payne testified that
"[t]hey was two or three timing frames there and I can't -- I'll have
to get that telephone thing, because he was trying to build a fire log,
like you burn in a fireplace." J.A. at 231. He also explained that "these
borrowings" "were going to purchase an extrusion machine for the
fire log which packs it, squirts it out . . . . And that's what the loan
money came up about on that." J.A. at 232. Payne further testified
that a "UCC-1" on the extrusion machine was to serve as collateral
for the loan. J.A. at 232-33.

                    4
Payne was then asked "[D]id you ever actually loan him sixty thou-
sand dollars?" J.A. at 233. Payne replied, "Well, the money sat on the
table, but he didn't get it until he got the machine." J.A. at 233. The
questioner then attempted to clarify Payne's response, and Payne con-
firmed that Hayes had never actually received any of the $60,000:

          Q[uestion]: So let's go back now. When you say the
          money sat on the table, did you physically have sixty thou-
          sand dollars in cash, check or anything on the table for him
          to see?

          A[nswer]: Yeah.

          Q[uestion]: You actually had it?

          A[nswer]: Yeah.

          Q[uestion]: Did he get it?

          A[nswer]: No, he wouldn't produce the machine. I told
          him without a UCC-1 filed, we'd just quit right there. And
          when we quit was about the time he brought that first cash-
          ier's check in on me. And that is when he got the notes
          back.

          Q[uestion]: So he never -- did he sign the notes?

          A[nswer]: He signed the notes.

          Q[uestion]: But he never really got the money from it, is
          that right?

          A[nswer]: Right.

J.A. at 233-34. Upon further questioning, Payne confirmed yet again
that, although Hayes had signed the six, ten thousand dollars notes,
Hayes never got the money and Payne gave the money back to his
own children. J.A. at 235.

                    5
In a telling exchange, Payne was then asked, "So when Mr. Hayes
says that all but five thousand dollars of that sixty thousand dollars
was repaid, he's mistaken. None was really repaid, because none was
really loaned, is that right?" J.A. at 236 (emphasis added). Rather than
explaining that Hayes was not in fact mistaken, but was simply talk-
ing about a different $60,000 transaction, Payne replied, "Basically."
Id. The questioner then pinned Payne down on that response:

          Q[uestion]: What is wrong about that statement?

          A[nswer]: Well, nothing. The other money come from me;
          it didn't come out of the kids' money.

          Q[uestion]: Was there some other money in addition to the
          sixty?

          A[nswer]: I had loaned him four thousand dollars.

          Q[uestion]: He still owes you for that, is my understand-
          ing?

          A[nswer]: Yes.

Id.

Thus, when asked whether there was other money -- in addition
to the $60,000 that sat on the table -- Payne testified only about the
separate $4,000 transaction, and did not mention a separate $60,000
loan. Moreover, Payne specifically confirmed that the only money
that he had loaned Hayes was that four thousand dollars, various
small amounts for poker and gambling debts that Hayes would
request late at night from Payne -- who worked nights near the club
where Hayes gambled -- J.A. at 228, and some invoices on goods
Payne sold to Hayes that Hayes did not pay up front:

          Q[uestion]: So as I understand your testimony, the only
          real monies you gave to him, in terms of a loan was the four
          thousand dollars and various borrowings for his poker debts
          or gambling debts?

                    6
          A[nswer]: Yeah, and then I was -- there is one of those
          invoices in there he didn't pay up front.

J.A. at 237. Payne did not so much as suggest the existence of any
separate $60,000 loan.

And, again, when Payne was asked why Hayes would have testi-
fied in his sentencing hearing that Payne had loaned Hayes $60,000
dollars (and that Hayes had paid $55,000 back to Payne) while Payne
was testifying in the bankruptcy proceeding that the $60,000 was
never actually loaned, Payne did not explain that he and Hayes were
talking about two different $60,000 transactions. Instead, Payne sug-
gested that the reason Hayes had said that he paid $55,000 back to
Payne on a $60,000 loan was so that Hayes would not have to explain
where the proceeds from his scam had gone:

          Q[uestion]: Why would he say -- can you think of any
          reason why he would say he borrowed sixty thousand from
          you and paid all of it back but fifty-five thousand?

          A[nswer]: Sure.

          Q[uestion]: Why?

          A[nswer]: Because of all those invoices. He's bought all
          of that stuff, and he used them to pay for that.

          Q[uestion]: You think that is why he thinks he's borrowed
          sixty thousand from you?

          A[nswer]: No, the reason it is is he don't want to have to
          explain where all that went.

J.A. at 238.

A jury could certainly find from the foregoing testimony that Payne
was discussing only one $60,000 transaction at the sentencing hearing
and during the bankruptcy proceedings, and that Payne made irrecon-
cilably contradictory statements about that transaction. Thus, we
affirm the judgment below.

AFFIRMED

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