Hogoboom v. United States ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD JON HOGOBOOM,
Petitioner-Appellant,
v. No. 96-1262
(D.C. No. 96-N-494)
UNITED STATES OF AMERICA, (D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Donald Jon Hogoboom appeals from the district court’s denial of his
petition for a writ of error coram nobis, through which he seeks vacation of two
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
convictions for improper banking practices. Hogoboom contends this court’s
reversal of the convictions of two other individuals involved in his fraudulent
schemes mandates the vacation of his convictions as well. Reviewing the district
court’s denial of the writ de novo, see Estate of McKinney ex rel. McKinney v.
United States, 71 F.3d 779, 781 (9th Cir. 1995), we agree with the district court
that Hogoboom’s argument for relief is a non sequitur and affirm.
Hogoboom was a director of two Colorado banks. In 1991, he pleaded
guilty to one count of violating 18 U.S.C. § 1005 and one count of violating
18 U.S.C. § 656. The essence of his § 1005 violation was that he issued a
$500,000 letter of credit that was not properly authorized by the bank and was not
recorded in the bank’s records. His § 656 violation was based on his causing a
$110,000 loan to be issued to a straw borrower--the nominal borrower who
applies for a loan, but neither receives nor intends to repay the proceeds, which
go to a third party--and then directing $66,500 of this loan to his personal
account. He has served his sentence, which included two years’ imprisonment
followed by three years’ probation.
Hogoboom's filing of this petition was prompted by our reversal of the
convictions of two straw borrowers who were involved in another of Hogoboom’s
improper letter-of-credit schemes. See United States v. Rothhammer, 64 F.3d 554(10th Cir. 1995). The Rothhammer defendants had been convicted under
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18 U.S.C. § 1014, which requires proof that “the defendant knowingly made a
false statement to a bank, which was false as to a material fact, for the purpose of
influencing the bank’s action.” 64 F.3d at 557. We held that the defendants did
not make false statements by signing promissory notes to obtain loans and falsely
promising to repay the loans, because the promise to repay merely created a legal
liability that “did not amount to a factual assertion and thus cannot be construed
as a false statement.” Id. at 557-58.
Hogoboom contends our interpretation of § 1014 in Rothhammer requires
vacation of his convictions because both cases “involved the same overall scheme
or transaction: the use of straw borrowers.” Appellant’s Br. at 10. He analogizes
his situation to cases in which courts have granted collateral relief vacating
convictions because of subsequent Supreme Court decisions changing the
elements of the crimes underlying the convictions. See, e.g., United States v.
Shelton, 848 F.2d 1485 (10th Cir. 1988) (en banc). However, even though both
his case and Rothhammer may have involved straw borrowers--and that may be
stretching the facts of this case 1--that has no bearing on whether Hogoboom’s
convictions remain valid because Rothhammer did not redefine the elements of
his crimes. A conviction under § 656 requires the government to prove the
1
In the letter-of-credit scheme for which he was convicted under § 1005,
Hogoboom would have tried to cover his tracks through use of straw borrowers
“[i]f necessary,” but apparently it was not necessary. Appellant’s Br. at 4.
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defendant is an officer, director or employee of a federally connected bank and
that he or she willfully misapplied bank funds with intent to defraud the bank.
See § 656; United States v. Evans, 42 F.3d 586, 589 (10th Cir. 1994). A § 1005
conviction requires proof that the defendant made a false entry in the bank’s
records with intent to defraud the bank or public officers or, if the defendant is a
bank officer, director or employee, issued a credit of the bank without
authorization. See § 1005; Evans, 42 F.3d at 592; United States v. Chaney,
964 F.2d 437, 448-49 (5th Cir. 1992). Thus, neither of Hogoboom’s convictions
hinged on his making a false statement in general, or more importantly for
Rothhammer to be relevant, a false promise to pay in a promissory note. Because
we conclude that Rothhammer did not affect the elements of the crimes of which
he was convicted, we also reject his contention that his guilty pleas were not
knowing and voluntary.
This court has previously granted Hogoboom’s motion for an extension of
time to file a reply brief; his alternative motion to strike the government’s answer
brief and appendix is therefore DENIED as moot. The judgment of the district
court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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