United States v. Todd Horob , 407 F. App'x 228 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30445
Plaintiff - Appellee, D.C. No. 1:08-cr-00093-RFC-1
v.
MEMORANDUM *
TODD KENNETH HOROB,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted November 3, 2010
Portland, Oregon
Before: ALDISERT, W. FLETCHER, and FISHER, Circuit Judges.**
Todd Kenneth Horob appeals from his conviction on seven counts of fraud-
related crimes. For the reasons that follow, we affirm Horob’s conviction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ruggero J. Aldisert, Senior Circuit Judge for the Third
Circuit, sitting by designation.
18 U.S.C. § 1344, but we reverse his convictions under 18 U.S.C. § 1014 and 18
U.S.C. § 1028A(a)(1). We remand for resentencing in light of those reversals.1
I.
Horob’s opening brief challenged his convictions under Counts I, II, IV, V
and VII and the district court’s application of the Sentencing Guidelines. He also
claimed ineffective assistance of counsel. The government’s brief conceded that
Horob’s conviction under Count VII for aggravated identity theft in furtherance of
bankruptcy fraud, in violation of § 1028A(a)(1), was plain error because no such
crime exists. We agree, and therefore reverse and remand for resentencing
accordingly. Horob conceded at oral argument that his convictions under Counts
IV and V, as well as his corresponding sentence, were proper. We agree, and thus
affirm his convictions under those counts. He also conceded that his ineffective
assistance of counsel claim is not yet ripe for review. We agree, and will not reach
the question. As a result of these concessions, we must resolve only whether
1
The district court had jurisdiction under 18 U.S.C. § 3231. See United
States v. Ratigan, 351 F.3d 957, 963 (9th Cir. 2003) (holding that defects in the
government’s evidence regarding a bank’s FDIC status go to the merits of the case,
not to subject-matter jurisdiction). We have jurisdiction under 28 U.S.C. § 1291.
We review for plain error Horob’s convictions under § 1014 and § 1344 because
Horob did not move for a directed verdict. See United States v. Cruz, 554 F.3d
840, 844-845 (9th Cir. 2009).
2
Horob’s convictions under § 1014 and § 1344 were plain error. We consider them
in turn.
A.
Horob was convicted for making false statements to a federally insured
bank, Wells Fargo, in violation of 18 U.S.C. § 1014. An element of the offense
requires that the bank be “insured by the Federal Deposit Insurance Corporation”
during the crime. § 1014; see also United States v. Ware, 416 F.3d 1118, 1121 (9th
Cir. 2005). To prove during Horob’s 2009 trial that Wells Fargo was FDIC insured
when he made false statements to it in 2006, the government offered no evidence
beyond calling Wells Fargo employee Gerald Lundgren, who attested that the bank
“is” federally insured. (E.R. 64.)
Lundgren’s 2009 present-tense statement was not sufficient evidence for the
jury to find beyond a reasonable doubt that Wells Fargo was FDIC insured when
Horob misled it in 2006. See United States v. Ali, 266 F.3d 1242, 1244 (9th Cir.
2001) (holding that present-tense trial testimony, years after the alleged offense,
cannot establish that a bank was insured during the offense). Although the “totality
of the trial evidence” may sometimes permit a jury to infer, based upon present-
tense testimony in conjunction with other evidence, that a bank was federally
3
insured, e.g., Ware, 416 F.3d at 1122-23, this is not such a case. We therefore
reverse Horob’s conviction under § 1014.
B.
Horob was also convicted of defrauding a federally insured bank, Dakota
West, in violation of § 1344. To prove at Horob’s 2009 trial that Dakota West was
federally insured when Horob defrauded it in April 2005, the government called
Dakota West CEO Denton Zubke, who testified that the bank “is” federally
insured. (E.R. 345.) The government also offered into evidence a receipt generated
by Dakota West on March 31, 2005. In small print near the top of the receipt were
the words: “Your Savings Federally Insured,” “NCUA,” and “National Credit
Union Association, a U.S. Government Agency.”
This exhibit makes this case a direct factual analogue to United States v.
Allen, 88 F.3d 765, 769 (9th Cir. 1996), in which we held that trial exhibits dating
to the time of the offense and stating “Member FDIC” were enough to establish
that a bank was federally insured during the offense. In this case, the statement,
“Your Savings Federally Insured,” appeared on the government’s exhibit, the date
on which closely matched the timing of the alleged fraud. As in Allen, this
evidence sufficed to support the jury’s verdict. We therefore affirm Horob’s
conviction under § 1344.
4
We REVERSE Horob’s convictions under Count I and Count VII of his
indictment, and we REMAND for resentencing accordingly. We AFFIRM
Horob’s remaining convictions.
5