                                                    PUBLISH

               IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                 _____________________________________

                              No. 96-8780
                 _____________________________________

                        D. C. Docket No. 3:94-CR-5



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,
     versus



GEORGE CONDON, SAMUEL WILLIAM BRAWNER,

                                                 Defendants-Appellants.


                 ______________________________________

                 Appeals from the United States District Court
                     for the Northern District of Georgia
                 _______________________________________

                             (January 8, 1998)



Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit Judge.
PER CURIAM:


      Defendants-appellants        George


Condon   and   Samuel   William   Brawner


appeal from jury convictions for making


false statements to the Small Business


Administration (“SBA”), in violation of 15


U.S.C. § 645(a), and conspiracy to do the


same. Because none of Defendants’ issues


merits reversal, we affirm.




               Background




                    2
   In 1989 Defendants became involved in


a real estate deal.       Defendant Condon


(“Condon”) agreed to sell land and a building


to Defendant Brawner (“Brawner”), on


which   Brawner    intended   to   operate   a


restaurant.   The two were assisted in the


transaction by Condon’s attorney, Marc


Acree (“Acree”).


   To finance the purchase, Brawner was


relying on a loan -- of which 85% would be


guaranteed by the SBA.     In the process of




                      3
finalizing the involvement of the SBA,


both     Condon        and       Brawner         signed


documents             and       made         certain


representations -- some of which later


turned     out   to   be    false.     The   relevant


statements       included       the   amount     to   be


personally invested by Brawner (a down


payment and working capital); the amount


actually    paid      to   Condon      as    a    down


payment; the manner in which some of


the funds were to be used; and the terms of




                            4
repayment on an additional construction


loan (loaned to Brawner by a third party).


   As   it   turned   out,   Brawner   never


invested his own funds in the restaurant,


but instead borrowed the money necessary


both to acquire and to run the restaurant


-- contrary to the representations made


by Brawner and Condon to the SBA.        The


restaurant suffered financially and was


destroyed by fire soon after it opened.


Brawner was charged with arson, making




                      5
false   statements       to    the   SBA    (and


conspiracy), insurance fraud, and mail


fraud   (related   to   his   transmission      of


documents to the SBA through the mail).


Condon was charged only with making false


statements to the SBA and conspiracy.


   Defendants were tried together.          Both


Defendants were found guilty of making


false   statements      to    the   SBA   and   of


conspiracy to defraud the SBA with these




                        6
statements. They appeal their convictions

                      1
on several grounds.


   Both Defendants challenge the district


court’s jury instructions for failure to




    1
     Brawner argued on appeal that the
district court erred in its determination
of the amount of restitution that should be
paid by Brawner. But, the failure to raise
this issue in the district court makes it an
improper claim in this court.       FDIC v.
Verex Assurance, Inc., 3 F.3d 391, 395 (11th
Cir. 1993) (court will generally not consider
on appeal issues not raised before the
district court). Thus, we do not discuss that
issue.   We also find Brawner’s sufficiency
of the evidence claim to lack merit and do
not address that issue in this opinion.

                          7
include an instruction that materiality


was an element of the offense under 15


U.S.C.   §   645(a).      In   addition,   Condon


challenges the district court’s decision to


give no jury instruction about good faith


reliance on the advice of counsel; and he


challenges the district court’s failure to


sever his trial from Brawner’s.




                       Discussion




                           8
I.   Materiality




     Defendants argue that the failure to


include materiality as an element under


15 U.S.C. § 645(a) requires reversal of their


convictions for making false statements


to the SBA.     Whether materiality is an


element of 15 U.S.C. § 645(a) is a question of


law, which we review de novo.       See United


States v. De Castro, 113 F.3d 176, 178 (11th Cir.


1997).




                       9
   In United States v. Wells, 117 S.Ct. 921


(1997), we believe the Supreme Court has


effectively guided us.       In Wells, the Court


addressed the issue of whether 18 U.S.C. § 1014


-- prohibiting false statements made to


federally    insured    banks     --   included   a


materiality element.         The Court concluded


that materiality was no element under


section 1014.   Id. at 923.


   Section       1014    contains        language


substantially similar to the language in




                        10
the statute underlying this prosecution, 15


U.S.C. § 645(a).   Compare 18 U.S.C. § 1014:


   Whoever knowingly makes 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
   . . . shall be . . . imprisoned not more
   than 30 years . . . . (emphasis added);


with 15 U.S.C. § 645(a):


   Whoever         makes              any   statement
   knowing it to be false, . . . for the
   purpose of influencing in any way
   the action of the [Small Business]
   Administration . . . shall be punished
   . . . by imprisonment for not more
   than two years . . . . (emphasis added).




                                 11
   The language of section 1014 played a big


part in the Supreme Court’s conclusion


that materiality was no element for that


statute:


   Nowhere does [section 1014] say that
   a material fact must be the subject
   of the false statement or so much
   as mention materiality.                  To the
   contrary,     its    terms       cover    ‘any’
   false   statement         that    meets     the
   other requirements in the statute,
   and     the   term    ‘false     statement’
   carries no general suggestion of
   influential significance.


Wells, 117 S.Ct. at 927 (footnote omitted)


(citation omitted) (emphasis added).            “Nor


have respondents come close to showing


                        12
that   at    common         law    the   term    ‘false


statement’ acquired any implication of


materiality that came with it into § 1014.”


Id.    The Court finished by noting that


Congress was fully able to be clear when


materiality was an element of a crime,


because     other    statutory      sections     about


false statements are explicit in their


requirement of materiality. Id. at 928 &


n.11; see also 18 U.S.C. § 1621 (prohibiting


statements          under        oath    about     “any


material     matter     which       [one]   does   not




                            13
believe    to    be     true”);     18   U.S.C.    §   1001


(prohibiting       “knowingly            and      willfully


falsif[ying] . . . a material fact”).


   The same observations made by the


Court in Wells apply to the statute in this


case, 15 U.S.C. § 645(a).         Section 645(a) also


fails     to    mention            materiality         and


expressly prohibits “any” false statements


made to the SBA.


   After       Wells,   we        examined        another


statute for a materiality element. See De




                             14
Castro, 113 F.3d 176 (determining whether


materiality is element of 18 U.S.C. § 1010).


We decided that section 1010 also includes no


materiality             element.            Again,     that


section’s       language         is    similar    to      the

                                        2
language in section 645(a).


 2
  Section 1010 provides that:
     Whoever,           for     the     purpose      of
     obtaining any loan . . . from any
     person . . . with the intent that such
     loan   .   .   .   shall   be    offered   to   or
     accepted       by    the        Department      of
     Housing and Urban Development for
     insurance . . . or for the purpose of
     influencing in any way the action
     of such Department, makes, passes,

                                15
   Because of the similarities among 15


U.S.C. § 645(a) and 18 U.S.C. §§ 1010 and 1040,


and in the light of Wells and De Castro, we


conclude   that    section      645(a)   does   not


include the element of materiality. So, the


district   court’s    instruction         on    the


elements      of   the        offense    was    not


erroneous.




   utters, or publishes any statement,
   knowing the same to be false . . .
   shall be fined . . . or imprisoned . . .,
   or both.
18 U.S.C. § 1010 (emphasis added).

                         16
II.     Advice of Counsel Instruction




      Condon argues that the district court


erred when it failed to instruct the jury


about his claim of good-faith reliance on


the advice of his counsel.            We review a


district court’s refusal to give a requested


jury instruction for abuse of discretion.


United States v. Wescott, 83 F.3d 1354, 1357


(11th   Cir.   1996).   There   was   no   abuse   of




                          17
discretion    in     this   case:    no     such


instruction was required.


     To be entitled to a good-faith reliance


instruction, a defendant must show that (1)


he fully disclosed all material facts to his


attorney; and (2) he relied in good faith


on advice given by his attorney.            See


United States v. Johnson, 730 F.2d 683, 686


(11th Cir. 1984). “[A]n instruction should not


be given if it lacks evidentiary support or


is    based   upon     mere     suspicion    or




                       18
speculation.” United States v. Lindo, 18 F.3d


353, 356 (6th Cir. 1994) (citation omitted).


   Condon    failed   to    introduce   evidence


that he fully disclosed all material facts to


his attorney, Acree, or that he acted in


good faith reliance on the advice of Acree.


At the trial, neither Condon nor Brawner


testified. Thus, the only evidence about the


relationship between the Defendants and


Acree   came   from    the    attorney’s    own


testimony.




                       19
     Condon and Brawner came to Acree


for assistance with the sale of Condon’s


property to Brawner.         Acree had never


before   represented       either   Defendant.


Acree told Defendants that he “did not


handle SBA loans,” had no experience with


the SBA and knew nothing about SBA loans.


It    was   Acree’s   understanding       that


Brawner -- it was Brawner’s SBA loan --


was dealing with the SBA “directly” and


that Acree “was not going to be doing the




                      20
SBA    loan.”             Acree,     however,      agreed      to


represent Condon, as the seller, in the sale


of   the    land:         “preparing        the   documents


necessary         .   .    .   to    be   able    to   sell   the


property,” to draft “a sales contract,” “to


find out who owned the property,” “to find


out the description of the property,” and


the like.


     During this representation of Condon,


Acree       was       told      something         about       the


Defendants’ dealings with the SBA.                            But,




                                    21
Acree testified that he was never told that


Condon received none of the $100,000 down


payment    that   was   required   (the   down


payment was represented to the SBA as


having been paid):


   I believed that Mr. Condon had at
   the time of the . . . closing received
   $50,000 from Samuel Brawner.           I
   also believed that Mr. Brawner had
   gotten $100,000 or thereabouts from
   [a] relative, which had -- part of it
   had remained with Mr. Condon and
   part of it paid back to Mr. Brawner
   [for working capital as required by
   the SBA and the lender].




                     22
      Acree also testified that he -- in the


presence      of   Defendants      --   reviewed   a


letter from Brawner’s lender to Brawner


in which it was written that “Mr. Condon


had    been   paid   $100,000     and   he   was   to


refund    back     $50,000   to   Mr.    Brawner.”


Again, nobody mentioned to Acree that the


$100,000 had not actually been paid.           That


Condon never received a down payment


and, thus, Brawner never invested -- or


put at risk -- his own funds went to the




                        23
heart of the misrepresentations made by


Condon to the SBA.      The record shows that


material    facts      related    to   Condon’s


misrepresentations were not disclosed to


Condon’s attorney.


   Condon has never contended that his


attorney    actually    told     him   that   the


$100,000 misrepresentation was lawful:


Condon says he should be able to rely on


Acree’s silence on the subject.    In addition


to his failing to disclose the pertinent




                       24
facts to Acree, Condon has failed to point


us to evidence in the record which could


support the idea that reliance on Acree’s


silence was reasonable and in good faith.




   Three weak points face us.     First, in


claiming that he relied on the silence of


an expert, Condon must have evidenced


that he could reasonably believe Acree to be


an expert in the area of SBA financing.


This means the record needs to show it was




                    25
reasonable for Condon to view Acree as


such    an     expert,    even    given        Acree’s


uncontroverted           testimony       that       both


Defendants knew that Acree did not do SBA


loans. Second, the record scarcely supports


the    conclusion        that   Acree’s      duty    of


representation of Condon extended to the


SBA     loan    to   Brawner.         And,   Condon’s


reliance would have been on the lawyer’s


silence about a subject which, at best, was


on     the   periphery     of   the    scope   of    his




                          26
representation.         Third, Condon does not


dispute    that    he   was    never      paid   the


necessary $100,000 down payment; yet, he


wishes to claim good faith reliance on


advice (or, more correctly, on the lack of


an advisory warning) that lying about


this simple fact would not be unlawful. We


have      said    before   that    reliance      on


approving        advice    about   such    obvious


dishonesty “would clearly be outside of the


‘good faith’ prong of the expert advice




                          27
defense.”     Johnson, 730 F.2d at 687 n.3.


Considering these points, the record will


not support that Condon’s reliance on the


lawyer’s silence was reasonable and in

              3
good faith.


     3
      Although the district court did not
instruct the jury about good faith reliance
on   the advice of counsel, the court did
include an instruction on good faith in
general: “[G]ood faith is a complete defense
to the charges in the indictment since good
faith on the part of the defendant is
inconsistent with intent to defraud or
willfulness       .   .   .    .”        The    district    court
adequately        addressed               the     concepts     of
willfulness       and         good       faith.    In      closing
argument,             Condon’s             trial     attorney

                                    28
      “Thus, since the record failed to show


adequate     evidentiary           support       for   the


instruction,       the    district       court   did   not


abuse its discretion in refraining from


charging the jury on advice of counsel.”


United States v. Durnin, 632 F.2d 1297, 1301


(5th Cir. 1980) (“[T]here is no evidence in




addressed the possibility that Condon may
have     relied,   in     good    faith,    on    Acree’s
silence. “So, the jury essentially considered
the    defense     of    good    faith    [reliance    on
advice of counsel] and rejected it when it
found [Condon] guilty.”            United States v.
Walker, 26 F.3d 108, 110 (11th Cir. 1994).

                           29
the record that [defendant] either sought


the advice of counsel, personally received


advice after full disclosure, or followed the


advice in good faith.”); see also Lindo, 18 F.3d

          4
at 357.


    4
       Condon argues that he did introduce
sufficient evidence for the instruction. He
points us to Acree’s admission that he
may have failed Condon in his duty to
prevent Condon from engaging in illegal
activity.     But, this conclusory testimony
does    not   support   the   contention   that
Acree was made aware of all material
facts of the transaction so that Condon
could have in good faith relied on Acree’s
failure to spot and then to inform Condon
of the illegality. That Acree now feels badly

                        30
III.    Severance




      Condon claims that his trial should have


been severed from Brawner’s, because of


the disparity in the charges against them:


only Brawner was charged with arson-


related offenses.         Condon chiefly argues



about what happened does not show that he
had    the   duty   --   given   the   scope    of   his
representation -- to do everything possible
to protect Condon from Condon’s own acts
and omissions about the SBA loan. Thus, the
evidence relied upon by Condon does not
demand       an     instruction    on    good    faith
reliance on the advice of counsel.

                           31
that   Brawner’s    defense   to   the   arson


charges -- that other persons had better


motives to have set the fire -- prejudiced


Condon.     We review the district court’s


refusal to sever the Defendants’ trials for


abuse of discretion. United States v. Cross,


928 F.2d 1030, 1037 (11th Cir. 1991) (citation


omitted).


   Condon’s main point is based on the


closing argument by Brawner’s attorney.


The relevant portion of that argument




                     32
stated   that    “there’s     going   to   be   some


money left over from the insurance if the


building burned down to the ground; and


this   money,     I     would   suggest    to     you,


certainly one person it could have gone to


is Mr. Condon.”       This statement came in


the middle of a discussion of several other


persons who could have burned down the


restaurant      and     of   persons   who      had   a


financial       stake    in     the    restaurant.


Brawner’s counsel continued by saying,




                         33
“I’m not suggesting -- we’re not trying to


prove that any particular person burned


that restaurant.      We are just trying to


show you there’s lots of reasonable doubt


that   Mr.    Brawner       did;   and     only   Mr.


Brawner is on trial for that . . . .”


   To be entitled to severance, and to


overcome the presumption that jointly


indicted     defendants     be     tried   together,


Condon       must   show     actual,     compelling


prejudice.    See United States v. Gonzalez,




                       34
940 F.2d 1413, 1428 (11th Cir. 1991); United


States v. Castillo-Valencia, 917 F.2d 494,


498-99 (11th Cir. 1990).        Condon argues that


such prejudice can be found in Brawner’s

                           5
closing      argument.                 But,   limiting



 Condon also argues that he was prejudiced
 5


by the inability to introduce evidence that
he was misled by Brawner about the loans.
But    in    the   light   of    the    overwhelming
evidence against Condon in this case, the
absence of this evidence cannot amount
to    compelling     prejudice.          Much   of   the
evidence Condon claimed was improperly
excluded went to his defense that Brawner
misled      him    about   the    contents      of   the
documents they both signed. Some evidence
to that fact was admitted, but the district

                           35
instructions       were       given      about      the


importance of applying evidence of the


arson charge only to Brawner.                Limiting


instructions of this kind are presumed to


protect against prejudice in joint trials.


Gonzalez, 940 F.2d at 1428.



court excluded testimony that Brawner had
later   told   people   that    he    used   the   loan
money “to take trips, to pay for his wife’s
tuition, [and] to go to Georgia football
games.”        None     of    this    evidence     was
exculpatory      for    Condon,        and    Condon
presented no defense that was mutually
exclusive of Brawner’s.              Thus, severance
was not required.            Cf. Zafiro v. United
States, 113 S.Ct. 933 (1993).

                         36
      The cautionary instructions given by


the    district    court    in   this    regard   were


adequate.      And, the trial was distinctly


separated into two segments: the portion


for the false-statement charges and the


portion against Brawner for arson and


mail fraud.       At several points during the


trial, the court explained that evidence


admitted for the purpose of proving the


arson,    or      other    charges      pending   only


against Brawner, was not to be used in




                           37
the    consideration          of    Condon’s      guilt    or


innocence. For example, before the arson


portion of the trial the court told that jury


that:


            Mr. Sam Brawner is charged in
      this case with arson . . . in addition
      to the conspiracy in making false
      statements         concerning         the   S.B.A.
      loan.
            On the other hand, Mr. George
      Condon        is    charged      only       with
      conspiracy         to   make    and    making
      false statements to the S.B.A., and is
      not charged with any of the arson-
      related charges.
            Now, you have already heard and
      you     are   about      to    hear    further
      evidence       regarding        the     arson-


                              38
related charges.          This evidence is
admitted         solely    against           Mr.
Brawner and is not admitted and
should not be considered by you in
any    respect     with    regard       to   Mr.
Condon.     It is your duty to give
separate            and          personal
consideration to the case of each
individual defendant.
   When      you     do    so,    you    should
analyze what the evidence in the
case   shows     with     respect   to       that
individual defendant, leaving out of
consideration             entirely           any
evidence admitted solely against the
other defendant.
   In     this   case,    the    evidence      of
alleged arson and insurance fraud
should not be considered at all for
any purpose against Mr. Condon.




                     39
At    the    trial’s    end,   the   district      court


further explained the proper use of the


evidence        of      arson        in     its     jury


instructions:


        In certain instances, evidence
     may be admitted only concerning a
     particular      party     or    only   for     a
     particular         purpose       and         not
     generally against all parties or for
     all purposes.
        For    example,        you   have    heard
     substantial evidence regarding a
     fire at the restaurant involved in
     this case and the cause of this fire.
     The government contends that Mr.
     Brawner      is    responsible       for     this
     fire.        Mr.      Brawner          denies
     responsibility.


                          40
            Mr. Condon is not charged with
      responsibility for this fire.         None
      of the evidence received concerning
      the    fire   is   admissible   as   to   Mr.
      Condon and should not be considered
      by you in any respect in deciding
      the charges against Mr. Condon.


      These instructions are good enough; and


the     instructions,            along     with       the


overwhelming evidence against Condon,


demonstrate that no compelling prejudice


was suffered by Condon as a result of the


joint trial.




                            41
               Conclusion




   Because we find no reversible errors


in the trial of either Condon or Brawner,


we affirm their convictions.


   AFFIRMED.




                   42
