                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0823n.06

                                           No. 11-5838

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED

UNITED STATES OF AMERICA,                             )                          Aug 01, 2012
                                                      )                    LEONARD GREEN, Clerk
       Plaintiff-Appellee,                            )
                                                      )       On Appeal from the United States
v.                                                    )       District Court for the Western
                                                      )       District of Kentucky
CURTIS GORDON,                                        )
                                                      )
       Defendant-Appellant.                           )



BEFORE:        BATCHELDER, Chief Circuit Judge, GRIFFIN, Circuit Judge, and COHN,
               Senior District Judge.*
                                      1
AVERN COHN, Senior District Judge.

                                          I. Introduction

       This is a criminal case involving tax and bank fraud. Defendant-Appellant Curtis Gordon,

Jr. (“Gordon”) was tried and convicted by jury of eight (8) criminal counts: Counts I, II, and III,

filing false personal tax returns in 2003, 2004, and 2005 in violation of 26 U.S.C. § 7206(1); Counts

IV, VII, and VIII, failing to file tax returns for 2006, 2007, and 2008 in violation of 26 U.S.C. §

7203; Count V, violation of 18 U.S.C. § 1001 for falsifying an Internal Revenue Service (IRS)

lien-subordination certificate during the closing of a mortgage loan; and Count VI, violation of 18

U.S.C. § 1344, executing a scheme to defraud U.S. Bank National Association (“USBank”) in



       *The Honorable Avern Cohn, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.
procuring a loan. The district court sentenced Gordon to a custodial term of thirty-nine (39) months.

          Gordon asks this Court to reverse his convictions on Counts V and VI and to order a new trial

on the remaining counts. For the reasons that follow, Gordon’s conviction is AFFIRMED on all

counts.

                                           II. Background

          Gordon worked as a police officer for the city of Shively, Kentucky. Additionally, Gordon

owned a business called Commonwealth Security Inc.1 (“Commonwealth”), which employed guards

and off-duty police officers. Gordon first came to the attention of the IRS in 2003 for failing to

withhold taxes from Commonwealth employees’ pay. The IRS filed a tax lien against Gordon for

$31,832.97.

          For 2003 and 2004, the only income Gordon reported on his personal income tax returns was

from his position as a police officer: $23,880 in 2003 and $16,094 in 2004. Gordon did not report

any income from Commonwealth from 1997-2007. In 2007, Gordon filed a “corrected return” for

2005 that showed $32,294 in wages from the police department and $97,285 in income from

Commonwealth.

          Gordon lived on Stone Wynde Dr. (“Stone Dr.”) in a house valued at approximately

$280,000. In 2004, Gordon and his wife moved to a house on Beachland Beach Road (“Beach Rd.”),

located on the Ohio River. Gordon rented the property for $7,250 per month. The value of the house

at the time was $1,500,000. Around the same time, Gordon transferred ownership of the Stone Dr.



          1
        The record indicates that the name of the company changed several times; for the sake of
simplicity, it will be referred to as Commonwealth.

                                                   2
house to a family member, Jerry Williams. Payments on the mortgage, however, came out of

Commonwealth’s accounts. Gordon wanted to purchase the Beach Rd. house and employed a real

estate agent to assist with securing financing for the purchase. In the summer of 2005, Gordon

entered a preliminary agreement with USBank for financing of $1,200,000. To verify his income,

USBank requested Gordon’s personal tax returns, tax returns of the security business, and statements

showing cash on hand/liquid assets.

       In response to USBank’s request, Gordon produced a personal tax return for 2002 that

showed a gross income of $205,789, including a W-2 from Commonwealth Security showing

earnings of $136,000. Gordon provided the 2002 corporate tax return for Commonwealth that

showed gross earnings of $1,256,000. Next, Gordon submitted a 2003 personal income tax return

claiming $175,131 in income and a corporate return showing income of $1,476,000. Finally, Gordon

submitted tax returns to USBank for 2004 that showed a personal income of $196,094 and corporate

income of $1,656,000. The facts stated above are summarized in graphic form as follows:

                   Income                  Personal Income                Corporate Earnings
                Reported to IRS           Reported to USBank              Reported to USBank

   2002                                         $205,789                       $1,256,000

   2003              $23,880                    $175,131                       $1,476,000

   2004              $16,094                    $196,094                       $1,656,250




                                                 3
For verification of his present income and assets, Gordon produced pay stubs reflecting a weekly

salary from Commonwealth of $5,292 and bank statements with balances of $43,500 and $179,485.

The actual balances of the bank accounts were $100 and $56.86.

       During the loan processing, Gordon’s outstanding IRS lien came to the attention of USBank.

USBank asked Gordon to request the IRS to certify that its lien would be subordinate to USBank’s

mortgage. When a lender funds a “purchase money” mortgage, however, a federal tax lien is

automatically subordinate. Nevertheless, USBank insisted, and Gordon contacted the IRS to secure

such a certification. The application for lien subordination required a description of the property,

a copy of the lien, a list of encumbrances, and an estimate of the property’s fair-market value.

Additionally, the form required Gordon to certify under the penalty of perjury that the information

included was accurate and complete to the best of his knowledge.

       Gordon’s application to the IRS indicated that he sought refinancing on the Stone Dr. house,

not that he was attempting to purchase the Beach Rd. house. Gordon sent the IRS documents

purporting to be a lease/purchase agreement for the Stone Dr. house with Gordon listed as the buyer.

After reviewing the documents, the IRS told Gordon that it did not appear subordination was

necessary, and if it was, there was not sufficient documentation to process the request. The IRS

asked Gordon to provide a copy of the lease/purchase agreement, the balance due under the

agreement, an appraisal of the property, the county valuation of the property, a title report, the

amount of the mortgage, and an estimated settlement statement as to how the proceeds of the loan

would be distributed.




                                                 4
       Gordon submitted the required documentation. The IRS approved the subordination to a

mortgage for $266,000 on the Stone Dr. house. Accordingly, the IRS sent Gordon a “copy” of the

669-D form (lien subordination). The original certificate issued only after the IRS received

confirmation of the final settlement and the new mortgage. In the interim, Gordon altered the copy

to appear as if the IRS issued an approval of subordination for the Beach Dr. house for a purchase

price of $1,500,000. Gordon transmitted the altered document to the closing attorney. After the

closing, the attorney submitted the documents to the IRS, and the documents were routed to the same

agent who approved the lien subordination application. Ordinarily, after verification of closing, the

IRS would issue the certification of lien subordination, but the agent recognized the inconsistency

between the 669-D form she approved and the 699-D form Gordon submitted at closing.

Accordingly, the IRS opened an investigation. The IRS issued a summons for the records Gordon

submitted to USBank during his application for the loan. A review of income tax returns from

previous years revealed the inconsistency between the tax returns Gordon submitted to USBank and

those submitted to the IRS.

       Gordon proceeded to file amended returns for 2002, 2003, 2004, and an untimely return for

2005. The amended returns reflected income earned from Commonwealth using a “cost of living”

analysis, presumably because Commonwealth’s records were in disarray. By summer 2006, the

criminal investigative unit for the IRS took over the investigation. Simultaneously, Gordon was the

subject of an investigation by the Louisville Metro Police Department related to Commonwealth’s

billing of security services to the Louisville Metro Housing Authority (“LMHA”). Louisville police




                                                 5
executed search warrants for Gordon’s house and business. The police seized documents, records,

and computers.

       In 2007, Gordon sold Commonwealth to an employee, Jeffrey Manning, who changed the

name to United Protection. Gordon remained involved in operations, however, and the company

paid his personal expenses in 2007 and 2008. Nevertheless, Gordon did not file tax returns for 2006,

2007, 2008, or 2009. Gordon says he was unable to access his financial records because his bank

refused to release information to him. Thus, he argued to the jury, that he could not file returns.

                                         III. Jurisdiction

       The district court exercised jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction

under 28 U.S.C.§ 1291.

                                      IV. Issues on Appeal

Gordon raises nine (9) issues on appeal as follows:

       (1) Whether the district court erred in denying Gordon’s motion to suppress evidence without

       holding a Franks hearing.

       (2) Whether Gordon’s statements to the IRS while applying for a loan subordination

       certificate were material within the meaning of 18 U.S.C. § 1001.

       (3) Whether there was legally sufficient evidence to sustain a conviction of bank fraud under

       18 U.S.C. § 1344.

       (4) Whether the district court erred by excluding an affidavit of Gordon’s late accountant,

       Thomas Benecke (“Benecke”).




                                                 6
       (5) Whether the district court should have contemporaneously admonished the jury regarding

       the purpose of 404(b) evidence.

       (6) Whether the district court erred by excluding certain defense witnesses.

       (7) Whether the district court erred in refusing to grant an evidentiary hearing or new trial

       based on prosecutorial misconduct.

       (8) Whether the district court erred by declining to investigate/grant a new trial based on

       juror misconduct.

       (9) Whether the district court erred in denying Gordon additional time to prepare for

       sentencing.

       The nine issues fall into five (5) categories: failure to suppress evidence, evidentiary errors,

sufficiency of the evidence, motion for a new trial, and lack of opportunity to prepare for sentencing.

Each category will be separately discussed below.

                                      V. Standard of Review

       On motions to suppress evidence, the Court reviews findings of fact for clear error and

questions of law de novo. United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007). The Court

reviews evidentiary errors for abuse of discretion. Trepel v. Roadway Express, Inc., 194 F.3d 708,

716 (6th Cir. 1999). The Court reviews challenges to sufficiency of the evidence de novo. United

States v. Owens, 426 F.3d 800, 808 (6th Cir. 2005). The Court reviews a denial of a motion for a

new trial for abuse of discretion. United States v. Barlow, 693 F.2d 954, 966 (6th Cir. 1982). This

Court reviews issues not preserved for appeal for plain error. FED. R. CRIM. P. 52(b).

                                          VI. Discussion


                                                   7
                             A. Motion to Suppress/Franks Hearing

        Gordon argues the district court erred by denying his motion to suppress evidence without

holding a Franks2 hearing. At trial, the Government introduced evidence seized by the Louisville

police in the execution of a search warrant for Gordon’s house and business in 2006 after

investigating Commonwealth’s billing practices. The seized financial records, documents, and hard

drives were later released to the IRS. Under Commonwealth’s agreement with the LMHA, off-duty

police officers working as security guards commanded a higher rate than civilian security guards.

Louisville police suspected that Gordon improperly billed the LMHA for hours worked by civilians

at the higher rate.

        Gordon asserts that the officer who applied for the warrant made a knowingly false statement

in the warrant’s affidavit.3       Specifically, the officer referenced the “contract” between

Commonwealth and the LMHA when no such written instrument existed. This argument is without

merit. The standard of review for the sufficiency of an affidavit “is whether the magistrate had a

substantial basis for finding that the affidavit established probable cause to believe that the evidence

would be found at the place cited.” United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991).

The district court issued a comprehensive memorandum and order detailing its reasons for denying

Gordon’s motion. We agree with those reasons.



        2
         A Franks hearing refers to Franks v. Delaware, 438 U.S. 154 (1978), which established the
right to challenge the veracity of statements in a warrant’s affidavit.
        3
         In the district court, Gordon argued the warrant was defective for lack of particularity and
the officers impermissibly exceeded the proper scope of the search. On appeal, Gordon limits his
argument to the district court’s denial of a Franks hearing.

                                                   8
       First, the affidavit describes information gathered from interviews with multiple

Commonwealth employees who reported first-hand knowledge of forgery and fraud. The officer

related the steps he took to investigate and verify the allegations. Probable cause did not turn on the

existence of a written contract. Whether Gordon and the LMHA memorialized their agreement in

writing is irrelevant. Moreover, the only place the words “contract” or “contractual” appear in the

search warrant or affidavit is in the list of items to be seized. Accordingly, the magistrate had more

than a substantial basis for finding probable cause. Gordon’s argument lacked merit in the district

court, as it does now.

                                      B. Evidentiary Errors

       Gordon argues that the cumulative effect of the errors made by the district court warrant a

new trial. As stated above, we review a district court’s evidentiary rulings for abuse of discretion.

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 140 (1997). Abuse of discretion occurs when the trial court

made an error of law or a clearly erroneous finding of fact, and we will find that such error exists

regarding an evidentiary decision “only where we are left with a definite and firm conviction that the

district court committed a clear error of judgment.” Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 676

(6th Cir. 2011) (internal quotations marks, alteration, and citation omitted).

                                 1. Affidavit of Thomas Benecke

       During trial, Gordon moved to admit an affidavit from his deceased accountant, Thomas

Benecke (“Benecke”). The district court excluded the affidavit as hearsay. In the affidavit, Benecke

explained that he prepared Gordon’s personal income tax returns for 2002, 2003, and 2004. Income

from the security business was not included because, according to the affidavit, Benecke planned to


                                                  9
amend the returns after he “determined the answers to several accounting questions.” Gordon

contends Benecke signed the affidavit in the presence of two witnesses, one of whom was a notary

public. The Government, however, counters that Gordon never produced a dated or notarized copy

of the affidavit.

        Gordon argues that the exclusion of the affidavit prejudiced his defense because it spoke

directly to his “willfulness” in violating the tax laws. Gordon argues that the affidavit was

admissible under the residual exception to the hearsay rule, FED. R. EVID. 807, because the affidavit

bore circumstantial guarantees of reliability. Gordon asserts the affidavit is reliable because Benecke

executed the sworn statement before two witnesses, the statement was against Benecke’s civil

interests, and Benecke was in poor health and knew his death was imminent. Finally, Gordon argues

that because the district court admitted letters from Benecke to Gordon it was an error to exclude the

affidavit.

        In opposition, the Government argues that the affidavit lacked significant indicia of reliability

because Gordon never produced a notarized copy. Further, Benecke died fifteen (15) months after

he gave the statement, a time period that does not suggest he believed his death was imminent such

that would create a circumstantial guarantee of trustworthiness similar to a “dying declaration.”

Lastly, the Government says that Benecke gave a statement to a federal agent completely inconsistent

with that affidavit.

        The residual exception to the rule against hearsay, FED. R. EVID. 807, provides that hearsay

evidence is admissible when:




                                                   10
       (1) the statement has equivalent circumstantial guarantees of trustworthiness [as the

       exceptions listed in FED. R. EVID. 803 & 804];

       (2) it is offered as evidence of a material fact;

       (3) it is more probative on the point for which it is offered than any other evidence that the

       proponent can obtain through reasonable efforts; and

       (4) admitting it will best serve the purposes of these rules and the interests of justice.

       The district court did not abuse its discretion by refusing to admit the affidavit into evidence.

Gordon’s assertion that the affidavit contained circumstantial guarantees of trustworthiness has no

merit. First, Gordon failed to produce at trial a dated and notarized copy of the affidavit. Second,

Benecke’s knowledge of his impending death does not provide a circumstantial guarantee of

trustworthiness, similar to a dying declaration. Although Benecke had serious health problems, the

affidavit was not written on his deathbed. Benecke’s statement was not made in the face of

imminent death, nor did it relate to the cause or circumstances of his demise. FED. R. EVID.

804(a)(1)-(5).

       Further, Gordon’s whole argument regarding the letters is patently misleading. Gordon

correctly notes that the district court admitted several personal letters by Benecke into evidence,

which the United States was able to us with devastating effect against Gordon’s case. He then

disingenuously argues that, if unsworn personal letters by Benecke could be used against his defense,

the district court should certainly have allowed in a sworn, notarized, Benecke affidavit to support

the defense. But this argument is completely mendacious; it was Gordon-not the United States-who

introduced Benecke’s letters. Indeed, the letters were devastating only because the United States


                                                  11
made the strategic decision not to oppose their introduction-and instead had Benecke’s widow testify

that Benecke’s signature at the end of each letter was a forgery and that one of the letterheads put

Benecke in an office that he did not open until a year after the date of the letter.

        Moreover, documents created in anticipation of litigation are presumptively less trustworthy

than ordinary business records. Palmer v. Hoffman, 318 U.S. 109, 111 (1943). As such, Benecke’s

affidavit does not meet the criteria listed in FED. R. EVID. 807. Thus, the district court did not

abuse its discretion by denying admission of the affidavit into evidence.

                                       2. Uncharged Conduct

        At trial, the Government offered evidence that Gordon failed to file accurate tax returns in

years beyond the scope of the criminal charges. The district court admitted this evidence under FED.

R. EVID. 404(b). Gordon argues that the district court made two errors: (1) that the district court

erred by failing to weigh the prejudicial effect against the probative value of the evidence; and (2)

that the district court should have given the jury a contemporaneous limiting instruction. The

standard of review in this Circuit for Rule 404(b) evidence is currently unclear, as some recent

reported cases analyze 404(b) evidence one way while others do so a conflicting way. See United

States v. Clay, 667 F.3d 689, 703 (6th Cir. 2012) (Kethledge, J., dissenting) (explaining the conflict

in Sixth Circuit authority). But the conflict is irrelevant here because both approaches review the

balancing-test element for abuse of discretion, id., and the conflict does not address whether a district

court must give a contemporaneous instruction when admitting 404(b) evidence. Indeed, it has been

clear for decades that the timing of a Rule 404(b) jury instruction is “within the trial judge’s

discretion,” see United States v. Chance, 306 F.3d 356, 388 (6th Cir. 2002) (relying on United States


                                                   12
v. Dabish, 708 F.2d 240, 243 (6th Cir. 1983)), meaning our review is confined to determining

whether the district court abused that discretion.

       The Government asserts several reasons why Gordon’s arguments fail. First, the Government

says that the evidence of false tax returns uncharged by the Government was not 404(b) evidence

because it was a part of a continuing and connected pattern of illegal activity. Second, Gordon failed

to request a balancing test from the judge and therefore waived the issue. Finally, the Government

asserts that the district court’s admonition during its final instructions adequately complied with

FED. R. EVID. 105.

       Gordon argues his previous false returns did not qualify as one of the exceptions outlined in

FED. R. EVID. 404(b). “Under this rule, evidence of criminal character or propensity is excluded

because the jury might convict the defendant for the conduct proving propensity rather than for the

offense for which he is on trial.” United States v. Acosta-Cazares, 878 F.2d 945, 948 (6th Cir. 1998)

(internal citation omitted), abrogated on other grounds as recognized by Rattigan v. United States,

151 F.3d 551 (6th Cir. 1998). However, 404(b) permits evidence of prior crimes or wrongs to prove

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident. Gordon’s defense at trial was that he did not know he was required to report income from

Commonwealth and/or he erroneously relied on the advice of his accountant. This defense put

Gordon’s knowledge and intent squarely at issue.




                                                 13
        The Government offered evidence that Gordon under-reported his income in the years

preceding 2003 and did so against the advice of an accountant.4 Evidence that an accountant told

him he must report Commonwealth income contradicted his defense of mistake. Further, that

Gordon previously under-reported his income undermined his contention that he relied on Benecke’s

representations and/or Benecke committed malpractice. The Government introduced 404(b)

evidence to counter Gordon’s defense of mistake and lack of knowledge.

        Before admitting 404(b) evidence, the district court must weigh the probative value of the

evidence against its potential prejudicial effect. United States v. Huddleston, 811 F.2d 974, 976 (6th

Cir. 1987), aff’d, 485 U.S. 681 (1988). Gordon contends that the district court failed to perform the

balancing step on the record, and that failure to do so qualifies as reversible error. Failing to perform

the balancing step on the record, however, will only constitute error when the defendant requests

such an on-the-record finding. Acosta-Cazares, 878 F.2d at 950. Additionally, this Court will not

disturb the district court’s ruling if the record indicates that the evidence was properly admissible.

Id. at 950-51.

        The record amply supports the district court’s ruling. Gordon’s defense rested on the theory

of mistake, inadvertence, lack of willful conduct, and reliance on a tax professional. Evidence that

undermined this defense was more probative than prejudicial. This Court’s case law supports that

conclusion. In United States v. Popenas, 780 F.2d 545, 548 (6th Cir. 1985), this Court held that



        4
          The 1999 tax return prepared by Joseph Williams, a tax professional and bookkeeper who
worked for Gordon, included income from Commonwealth; however, Gordon filed a return limited
to his income from the Shively Police Department. Williams also cautioned Gordon that paying
personal expenses out of company accounts was improper.

                                                   14
admission of previous tax returns under 404(b) was proper to show a pattern of under-reporting from

which the jury might properly infer willfulness, despite the potential of prejudice. Thus, the district

court did not abuse its discretion by admitting the 404(b) evidence.5

       Next, Gordon asserts the district court erred when it refused to give a contemporaneous

admonition to the jury on the purpose and limits of 404(b) evidence in conformance with FED. R.

EVID. 105. Rule 105 provides that when the court admits evidence for a limited purpose it must,

on timely request, “restrict the evidence to its proper scope and instruct the jury accordingly.” The

district court issued an admonishment to the jury during its final instructions, but declined Gordon’s

request for a contemporaneous admonishment. This Circuit has specifically rejected a temporal

requirement of a limiting instruction. United States v. Fraser, 448 F.3d 833, 839 n.4 (6th Cir. 2006);

see also United States v. Miller, 115 F.3d 361, 366 (6th Cir.1997). As such, the district court did

not err in waiting to admonish the jury until its final instructions.

                                   3. Agent Stansfield/Hearsay

       Gordon argued at trial and during the hearing on the motion for new trial that the district

court improperly admitted hearsay by Agent Stansfield and failed to admonish the jury. The

controversy surrounds the labels on several boxes of documents. Several of the boxes were marked

“LMPD” or “search warrant” which Gordon believed indicated they were products of the 2006

search and seizure executed by the LMPD. Gordon argues the boxes account for two significant

errors. First, the Government withheld the documents during discovery. Second, the records would


       5
         Moreover, Gordon failed to preserve this issue for appeal when he did not ask the district
court to perform an on-the-record balancing test. See United States v. Cowart, 90 F.3d 154, 157 (6th
Cir. 1996).

                                                  15
have allowed him to refute the Government’s statement during closing arguments that Gordon had

not paid taxes in a decade and to accurately calculate his tax liability for purposes of sentencing.

Gordon argues that this evidence was central to his defense and the admission of hearsay merits a

new trial.

       Stansfield testified that he wrote “LMPD” or “search warrant” on the boxes in error.

Stansfield explained that his predecessor, Agent Mynatt, passed some of the documents related to

the case on to him and he (Stansfieincorrectly assumed the documents were a product of the search

warrant. Stansfield testified that he received only a small number of documents from the Louisville

Metropolitan Police Department and the documents incorrectly labeled “LMPD” were actually

produced by Gordon pursuant to a subpoena for Commonwealth records.

       Gordon characterizes Stanfield’s statement about getting documents from Mynatt as

impermissible hearsay. Stansfield, however, never testified as to what Mynatt said. Stansfield’s

testimony was his first-hand account.6 There was nothing improper about Stansfield’s testimony

related to the boxes.

                                      4. Excluded Witnesses

                                        a. IRS Employees

       Gordon attempted to call four (4) IRS employees from whom he sought to elicit testimony

as to what representations to the IRS, or lack thereof, would be material. The district court excluded

the witnesses and/or restricted their testimony on two grounds: First, that Gordon failed to comply


       6
        Stansfield said that Mynatt procured some of the documents from a subpoena to LMHA.
While this statement was not based on personal knowledge, Gordon did not object on this ground,
and in any event, the record demonstrates that this was invited error.

                                                 16
with the disclosure requirements of FED. R. CRIM. P. 16(b)(1)(c);7 second, that it was the role of

the jury to apply the law to the facts and decide whether the statements were material. We review

a district court’s evidentiary rulings for abuse of discretion. Gen. Elec. Co., 522 U.S. at 141. The

testimony elicited from the IRS witnesses would have fallen into two categories, both properly

excluded. To the extent that Gordon essentially sought to introduce legal conclusions about

materiality in the guise of expert testimony, that testimony was properly excluded. “Generally, an

expert may not state his or her opinion as to legal standards nor may he or she state legal conclusions

drawn by applying the law to the facts.” Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1328 (10th

Cir. 1998). “Expert testimony on the law is excluded because the trial judge does not need the

judgment of witnesses.”8 United States v. Zipkin, 729 F.2d 384, 387 (6th Cir. 1984).

       Second, to the extent that Gordon sought to elicit testimony as to whether the IRS would have

issued a lien subordination certificate for Beach Rd., that testimony is not probative of whether

Gordon’s statements were material.9 Thus, the district court did not abuse its discretion in excluding

the IRS witnesses. We do not reach the district court’s other ground for excluding the evidence.

                                        b. Handwriting Expert


         7
           Gordon argues for the first time in his reply brief that even if he did not comply with FED.
R. CRIM. P. 16(b)(1)(c), the district court should have allowed the testimony. He cites to Ferensic
v. Birkett, 501 F.3d 469 (6th Cir. 2007) for the proposition that exclusion of a witness based only on
failure to comply with discovery requirements can violate a defendant’s right to present a complete
defense. We do not take up this argument. See United States v. Crozier, 259 F.3d 503, 517 (6th Cir.
2001).


       8
           Gordon did not attempt to qualify the IRS employees as experts.
       9
           See VI.C.1., infra, for an analysis on the legal definition of materiality.

                                                    17
       During his case-in-chief, Gordon introduced letters purportedly written by his deceased

accountant, Thomas Benecke (“Benecke”). Gordon offered the letters to support his contention that

he relied on Benecke’s advice to his detriment. The Government did not object to the admission of

the letters. Instead, the Government called Benecke’s widow, Anna Benecke, as a rebuttal witness.

Anna Benecke testified that several of the signatures on the letters did not belong to her husband.

Moreover, at least one of the letters listed Benecke’s business address incorrectly. During 2004,

Benecke moved offices; however, a letter dated March 8, 2003 bore the address of his new office

more than one year before he moved. The same letter stated that Benecke was unable to complete

Gordon’s accounting because of a hospital stay and illness. Anna Benecke denied that her husband

had a hospital stay during this period.

       A lay witness may testify as to the authenticity of handwriting “based on a familiarity with

it that was not acquired for the current litigation.” FED. R. EVID. 901(b)(2). Gordon sought to rebut

Anna Benecke’s rebuttal testimony with the opinion of a handwriting expert. Gordon made this

request at trial and in his motion for new trial. The Government was prepared to call a handwriting

expert to support Anna Benecke’s testimony that the signatures did not belong to her late husband.

Gordon did not have a handwriting expert on hand nor were the documents evaluated prior to trial

by such an expert. The district court did not allow either expert to testify. Gordon securing expert

review of the documents would have significantly delayed the trial. Further, Gordon submitted the

letters, not the Government. More importantly, Gordon agreed not to call an expert if the

Government agreed not to call its expert but to simply rely on Anna’s testimony.




                                                 18
       At the hearing on Gordon’s motion for new trial, Gordon attempted to introduce testimony

from a police officer who he represented to the district court was a handwriting expert. Analysis

from a handwriting expert did not constitute newly discovered evidence; it was an attempt to

relitigate an issued decided against him at trial. The district court did not err in handling Gordon’s

handwriting expert request.

                                 C. Sufficiency of the Evidence

       At the close of the Government’s proofs Gordon moved the district court for a judgment of

acquittal as to Counts V and VI. The district court denied the motion. On appeal, Gordon argues

that the Government failed to advance sufficient evidence to sustain a conviction for material

misstatement or bank fraud. “The relevant question in determining the sufficiency of the evidence

to support a guilty verdict is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Clark, 928 F.2d 733, 736 (6th Cir. 1991) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)) (internal marks omitted).

                                    1. Material Misstatement

       A violation of 18 U.S.C. § 1001 is comprised of five elements: (1) the defendant made a

statement; (2) the statement is false or fraudulent; (3) the statement is material; (4) the defendant

made the statement knowingly and willfully; and (5) the statement pertained to an activity within the

jurisdiction of a federal agency. United States v. Lutz, 154 F.3d 581, 587 (6th Cir. 1998) (citing

United States v. Steele, 933 F.2d 1313, 1318-19 (6th Cir. 1991)). Gordon argues that his statement

to the IRS in the lien subordination process could not have been material because an IRS lien is


                                                 19
always subordinate to a purchase money mortgage. Implicit in Gordon’s argument is that the IRS

was unharmed.

       A statement is material for purposes of § 1001 if it has the natural tendency to influence or

is capable of influencing the federal agency. United States v. Gaudin, 515 U.S. 506, 509 (1995).

It is not necessary to show that the statement actually influenced an agency, but only that it had the

capacity to do so. United States v. Blandford, 33 F.3d 685, 705 (6th Cir. 1994). Whether the IRS

would have issued the subordination does not determine materiality. Moreover, a showing of

materiality is a “low bar” for the Government to meet. United States v. White, 270 F.3d 356, 365

(6th Cir. 2001). “A false statement can be material even if ultimately the conclusion of the tribunal

would have been the same.” United States v. DeZarn, 157 F.3d 1042, 1051 (6th Cir. 1998); see also

United States v. Moss, 69 F.App’x. 724, 730 (6th Cir. 2003). For example, in United States v.

Markham, 537 F.2d 187 (5th Cir. 1976), the Fifth Circuit affirmed a conviction under 18 U.S.C. §

1001 where the defendant falsely listed the name of the inventor on a patent application. The

approval by the patent office would not have turned on who was the inventor; nevertheless, the court

affirmed the conviction.10

       Gordon pursued two objectives through his communications with the IRS. Gordon’s primary

aim was to satisfy USBank’s request for a certificate of lien subordination. His second goal was to

complete the process without alerting the IRS that he intended to purchase a house worth

$1,500,000. To accomplish the latter, Gordon represented to the IRS that he intended to purchase


       10
         Markham was charged under 18 U.S.C. § 1001(a)(1), concealing a material fact, as opposed
to the more common charge under § 1001(a)(2). However, the court explained that Markham both
concealed material facts and misstated material facts.

                                                 20
the Stone Dr. house. Viewing the facts in the light most favorable to the prosecution, a rational trier

of fact could have determined beyond a reasonable doubt that lying about which house he planned

to buy and how much he intended to pay for it were material misrepresentations. The district court

did not err by denying Gordon’s motion for acquittal on the §1001 charge.

                                           2. Bank Fraud

       Next, Gordon argues that no rational trier of fact could have found him guilty beyond a

reasonable doubt of bank fraud. Gordon’s assertion relies on the idea that submitting fake

documents to USBank was not fraudulent because the fake tax returns more accurately stated his

income than the false tax returns he filed with the IRS. Essentially, Gordon argues that he never

exposed the bank to a risk of loss.

       To convict a defendant of defrauding a financial institution under 18 U.S.C. § 1344(1), the

Government must prove that (1) the defendant knowingly executed or attempted to execute a scheme

or artifice to defraud a financial institution; (2) the defendant had the intent to defraud a financial

institution; and (3) the bank involved was federally insured. United States v. Waldroop, 431 F.3d

736, 741 (10th Cir. 2005). Gordon need not have exposed or potentially exposed the bank to a risk

of loss to be convicted. United States v. Hoglund, 178 F.3d 410, 413 (6th Cir. 1999). Consistent

with the common law definition of “fraud,” § 1344(1) requires “a misrepresentation or concealment

of material fact.” Neder v. United States, 527 U.S. 1, 22 (1999).

       The term “scheme to defraud” is not capable of precise definition. Fraud instead is measured

in a particular case by determining whether the scheme demonstrated a departure “from fundamental

honesty, moral uprightness, or fair play and candid dealings in the general life of the community.”


                                                  21
Spencer v. United States, 142 F.3d 436, 1998 WL 165142, at *4 (6th Cir. 1998) (unpublished

opinion) (quoting United States v. Ragosta, 970 F.2d 1085, 1090 (10th Cir. 1992)). Gordon’s

dealings with the USBank lacked honesty and candor.

       Gordon’s argument that he did not expose the bank to risk fails for several reasons. First,

the bank statements Gordon submitted demonstrating cash on hand dramatically overstated his

holdings. This is inconsistent with Gordon’s argument that the information he submitted to USBank

was accurate. Second, the Supreme Court held in Neder, 527 U.S. at 23-25, that a conviction under

the bank fraud statute does not require proof of reliance or damages. In the same vein, this Circuit

holds that exposing the bank to risk of loss or potential loss is merely one way to prove intent to

defraud. Hoglund, 178 F.3d at 413. The Hoglund panel sustained a bank fraud conviction under 18

U.S.C. § 1344 where the defendant settled his clients’ cases without their permission and then signed

and deposited the checks into his personal account. The defendant argued that he could not have

defrauded the bank because the bank did not lose money through the transactions. The panel

disagreed. Similarly, in United States v. Reaume, 338 F.3d 577 (6th Cir. 2003), the defendant

opened several checking accounts with small initial deposits and used the checks for purchases at

large retailers. He then returned the item in exchange for cash. The defendant argued that he

intended to defraud retailers but not the bank and therefore could not be guilty of bank fraud. The

Reamue panel disagreed and affirmed his conviction.




                                                 22
       Gordon’s argument that he would have qualified for a loan is irrelevant, and, considering the

testimony of a USBank representative at trial, likely incorrect.11 Gordon’s contention that the lien

subordination was meaningless also fails. USBank insisted Gordon secure it prior to closing the

loan. Moreover, the false lien subordination certificate was but one of several misrepresentations

made to USBank. Gordon represented to the bank that he had a significant amount of cash on hand,

$43,500 in one account and $179,485 in another. The actual balances of the accounts were $100 and

$56.86. Additionally, through his fake tax returns, Gordon represented to USBank that he acted

honestly in his financial dealings by filing and paying taxes. This was not true. The district court

did not err by denying Gordon’s motion for acquittal on the bank fraud charge.

                                     D. Motion for New Trial

       Approximately seven (7) months after his conviction, Gordon filed a motion for a new trial

that raised several issues. The motion is timely only if relief is based upon new evidence that (1) was

discovered only after trial; (2) could not have been discovered earlier with due diligence; (3) is

material and not merely cumulative or impeaching; and (4) would likely produce an acquittal if the

case were retried. United States v. Barlow, 693 F.2d 954, 966 (6th Cir. 1982); see FED. R. CRIM.

P. 33(b). The timeliness requirement must be strictly enforced if invoked by the government. See

Eberhart v. United States, 546 U.S. 12, 17 (2005) (per curiam).

       The district court conducted a hearing where it heard testimony and arguments on the

exclusion of witness, prosecutorial misconduct, and jury misconduct. Unconvinced, the district court


       11
         Tim Maloney, former senior vice-president and regional manager for USBank’s Private
Client Group, testified if he knew the documents presented in the loan application process were false
he would “absolutely not” have approved the loan.

                                                  23
denied Gordon’s motion for new trial. Gordon says the district court erred by excluding witnesses

and thereby precluding Gordon’s ability to present a full defense. It is not clear that any of the

evidence presented at the hearing on Gordon’s motion for new trial included any new evidence.

Rather, it seems Gordon’s purpose in calling the witnesses was to retry the case against him. This

Court reviews decisions denying a defendant a new trial based on newly discovered evidence for

abuse of discretion. United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006).

                                 1. Excluded Defense Witnesses

                                          a. Clay Culotta

       At the hearing, Gordon argued that the court should have allowed testimony from Gordon’s

former attorney, Clay Culotta, who Gordon says would have testified that Gordon could not access

his bank accounts for purposes of filing taxes because Fifth Third Bank refused to release any

information from Gordon’s bank accounts pursuant to a hold placed by the IRS. This testimony was

offered to rebut the Government’s contention that Gordon was capable of determining his tax

liability. Gordon did not call Culotta as a witness at the trial. Accordingly, there is no decision of

the district court to review and, thus, no abuse of discretion.

                                          b. Joe Schaeffer

       Joe Schaeffer, an IRS agent, was involved in the 2003 audit of Commonwealth that

culminated in the lien against Gordon. At the trial, Gordon sought to elicit testimony from Schaeffer

that Commonwealth paid payroll taxes. The district court ruled that Schaeffer’s testimony regarding

the validity of the lien was irrelevant. At the hearing on Gordon’s new trial motion, Gordon

suggested that Schaeffer’s testimony would have served to reduce his sentence and to rebut the


                                                  24
assertion during the Government’s closing argument that Gordon had not paid taxes in a decade.

The district court did not abuse its discretion in determining that Schaeffer’s testimony was

irrelevant.

                                    2. Prosecutor Misconduct

        Next, Gordon argues that the prosecution engaged in witness intimidation that caused several

of his witnesses to refuse to testify. Gordon’s assertion of prosecutor misconduct centers on a

statement made by a prosecutor and overheard by Helen Long, a former Commonwealth employee.

Long testified on Gordon’s behalf at trial. During cross-examination, the Government asked if she

and Gordon had an affair. Long denied a relationship with Gordon. On her way out of the

courtroom as she passed by the prosecutor’s table, Long states she overheard an assistant United

States attorney say to a colleague, “who is going to handle her perjury case?” Gordon argues this

statement amounts to witness intimidation. Gordon first raised the issue of witness intimidation in

his supplemental motion for new trial.

        Gordon attached two affidavits to his supplemental motion for new trial relating to alleged

prosecutor misconduct. The first affidavit is from Jeffrey Manning, the subsequent owner of

Commonwealth. Manning asserted the statement overheard by Long intimidated him such that he

refused to testify for fear of exposure to criminal prosecution. In the second affidavit, Jerry

Williams, the family member to whom Gordon transferred the Stone Dr. House in 2004, asserts he

similarly refused to testify out of fear of prosecution, after he learned of the comment overheard by

Long.




                                                 25
        In a written memorandum and order denying Gordon’s motion for new trial, the district court

explained that “government conduct which amounts to substantial interference with a witness’s free

and unhampered determination to testify will violate due process.” Citing United States v. Foster,

128 F.3d 949, 953 (6th Cir. 1997). The district court, however, concluded that the remark relayed

to Manning and Williams second-hand did not amount to substantial interference. Warning a

witness of the consequences of perjury does not amount to interference with the right to testify.

United States v. Pierce, 62 F.3d 818, 832 (6th Cir. 1995).

        Finally, the affidavits do not amount to newly discovered evidence, as the witnesses refused

to testify during the trial and Gordon would have known of their reasons for refusing through the

exercise of due diligence. As the government rightly points out, Gordon’s request for a new trial on

the basis of witness intimidation was untimely.



                                       3. Juror Misconduct

        At the hearing on Gordon’s motion for new trial Gordon produced an affidavit from his

friend and former employee, David Keen (“Keen”). The affidavit said that Keen’s estranged wife,

Billi Jo Keen, spoke to one of the jurors during the trial. Billi Jo Keen worked for Commonwealth

and testified against Gordon at trial. Keen said that Billi Jo Keen reported to him that she recognized

one of the jurors as Keen’s brother’s girlfriend’s cousin. According to Keen, Billi Jo Keen said she

and the juror laughed about Gordon crying in court. When and where this alleged contact took place

is not clear.




                                                  26
        A trial court confronted with an allegation of improper contact with a juror during trial

“should determine the circumstances, the impact thereof upon the juror, and whether or not it was

prejudicial, in a hearing with all interested parties permitted to participate.” Remmer v. United

States, 347 U.S. 227, 230 (1954). A defendant can obtain a new trial based on a juror’s concealment

of information during voir dire or if he can show actual bias. United States v. Solorio, 337 F.3d 580,

595-96 (6th Cir. 2003) (citing Zerka v. Green, 49 F.3d 1181 (6th Cir. 1995)).

        The district court heard testimony from Keen about his estranged wife’s exchange with a

juror during trial. The district court expressed doubt as to Keen’s credibility based on his testimony

at trial. Given Keen’s friendship to Gordon, his estrangement from his wife, and his previous

testimony, the district court did not abuse its discretion in concluding that the juror did not conceal

information during voir dire and that Gordon did not present credible evidence of actual bias.

Further, Gordon could have called Billi Jo Keen and the juror to testify. FED. R. EVID. 606(b)(1)

generally prohibits a juror from testifying regarding his participation in the trial. FED. R. EVID.

606(b)( 2)(B), however, allows a juror to testify as to whether an improper outside influence was

brought to bear on any juror. United States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997). Gordon

failed to present evidence of actual juror bias or any testimony that the district court found credible.

Thus, this argument has no merit.

                                            E. Sentencing

        Lastly, Gordon argues that the district court abused its discretion by refusing to grant Gordon

more time to prepare for sentencing. Gordon asserts that he did not have time to review the

Government’s calculations of tax loss and that it incorrectly included business expenses as income.


                                                  27
The jury returned a guilty verdict October 22, 2010. The district court sentenced him seven months

later. Gordon asked for additional time to prepare; the district court determined that additional

preparation would be futile. To affect his sentencing guidelines, Gordon would have to convince

the court that the Government’s tax loss was less than $400,000. The Government calculated

Gordon’s tax liability at more than $500,000. The district court noted that even if it credited all of

the calculations Gordon asked for, his tax liability would still exceed $400,000. Gordon did not

offer a calculation to the district court that would have put his tax liability below $400,000.

Similarly, on appeal, Gordon does not state what his sentence is or the sentence he was seeking. He

fails to provide any timely or credible explanation of how or why the district court should have

arrived at a figure less than $400,000 or what information was unavailable at sentencing that more

time would have allowed him to produce. The district court did not abuse its discretion in denying

Gordon’s request for additional time to prepare for sentencing.



                                         VII. Conclusion

       For these reasons, we affirm the judgment of the district court.




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