UNITED STATES of America, Plaintiff-Appellee, v. Joseph v. NASH, Defendant-Appellant

76 F.3d 282 96 Cal. Daily Op. Serv. 823 , 96 Daily Journal D.A.R. 1329 UNITED STATES of America, Plaintiff-Appellee, v. Joseph V. NASH, Defendant-Appellant. Nos. 91-50760, 92-50310, 92-50374 and 93-50694. United States Court of Appeals, Ninth Circuit. Submitted * June 6, 1994. Withdrawn from Submission Dec. 21, 1994. Resubmitted Aug. 17, 1995. Filed Aug. 24, 1995. Opinion Withdrawn Jan. 3, 1996. Decided Feb. 6, 1996. Dorothy Shubin, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee. Joseph V. Nash, Pro per, North Las Vegas, Nevada, for defendant-appellant. Appeal from the United States District Court for the Central District of California. Before: FLETCHER, CANBY, and HALL, Circuit Judges. PER CURIAM: 1 Joseph V. Nash was charged in a fifteen-count superseding indictment with fraudulently obtaining over $5 million in loans from three different banks. He was eventually convicted of ten counts of submitting false documents to a lending institution insured by the Federal Deposit Insurance Corporation (FDIC) in violation of 18 U.S.C. § 1014 , and five counts of bank fraud in violation of 18 U.S.C. § 1344 . Nash now appeals his convictions. We…

Joseph V. Nash was charged in a fifteen-count superseding indictment with fraudulently obtaining over $5 million in loans from three different banks. He was eventually convicted of ten counts of submitting false documents to a lending institution insured by the Federal Deposit Insurance Corporation (FDIC) in violation of 18 U.S.C. § 1014 , and five counts of bank fraud in violation of 18 U.S.C. § 1344 . Nash now appeals his convictions. We reverse.

I. FACTS AND PROCEEDINGS BELOW

Nash was charged in a fifteen-count superseding indictment. Counts 1 through 4 charged Nash with submitting false tax returns to Liberty National Bank in violation of 18 U.S.C. § 1014 . Nash’s partnership, Nash & Company, applied to Liberty National for a $250,000 line of credit and a $250,000 loan, each of which Nash offered to guarantee personally. As part of the application process, Nash submitted his personal income tax returns for 1985 and 1986. The indictment alleged that these returns “greatly overstated [Nash’s] income for [those] year[s]” and that, relying in part on the contents of these documents, Liberty National granted Nash & Company the loan and the line of credit. Nash also submitted…

Judge, concurring in part and dissenting in part:

Although I concur with the majority as to the reversal of Nash’s § 1014 convictions, I write separately because I am not convinced that the jury instructions which invalidated Nash’s § 1014 convictions also tainted his § 1344 convictions.

The majority reasons that the jury abdicated its duty to decide the materiality element of § 1344 because the jury might have wrongly believed that Instruction 40, which admittedly required the jury to find certain statements material as a matter of law, also applied to the § 1344 counts. I do not believe the jury would be so easily confused.

Instruction 40 states: “False statements of income and assets are material for purposes of these instructions.” Jury Instruction 40 (emphasis added). While the majority finds fault with the words “these instructions,” I think it is essential to examine first the instructions to which the jury might think to apply Instruction 40. Instruction 38 clearly listed “materiality” as an element of 18 U.S.C. § 1014 , see Jury Instruction 38, so a reasonable juror would apply Instruction 40 to § 1014 counts. However, Instruction 27, which set forth the elements of §…