UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene ALLEN, Defendant-Appellant

88 F.3d 765 96 Cal. Daily Op. Serv. 5009 , 96 Daily Journal D.A.R. 8048 UNITED STATES of America, Plaintiff-Appellee, v. Edward Eugene ALLEN, Defendant-Appellant. No. 94-30393. United States Court of Appeals, Ninth Circuit. Argued Sept. 15, 1995. Submission Deferred Sept. 15, 1995. Submitted Oct. 2, 1995. Decided July 3, 1996. John E. Storkel, Storkel & Grefenson, Salem, OR, for defendant-appellant. Sean B. Hoar, Assistant United States Attorney, Eugene, OR, for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. CR-93-60055-1-MRH. Before: SCHROEDER, REINHARDT, and FERNANDEZ, Circuit Judges. SCHROEDER, Circuit Judge: 1 Edward Allen appeals his conviction and sentence, following a jury trial, on thirty-five counts of making false statements in loan applications to two federally insured financial institutions, in violation of 18 U.S.C. § 1014 . On appeal in a counseled brief and a pro se supplemental brief, he raises nineteen issues, of which three are decided in this opinion. 1 In this opinion we first consider Allen's challenges to his conviction on jurisdictional grounds. He…

Edward Allen appeals his conviction and sentence, following a jury trial, on thirty-five counts of making false statements in loan applications to two federally insured financial institutions, in violation of 18 U.S.C. § 1014 . On appeal in a counseled brief and a pro se supplemental brief, he raises nineteen issues, of which three are decided in this opinion. 1 In this opinion we first consider Allen’s challenges to his conviction on jurisdictional grounds. He contends that the government failed to prove that the two financial institutions, the Western Bank of Oregon (‘Western Bank”) and the Southern Oregon Federal Credit Union (“Southern Credit Union”), were federally insured at the time of the' alleged criminal conduct. We then turn to his challenge to his sentence. He contends that the district court incorrectly calculated the losses resulting from his fraudulent conduct, and erroneously considered allegedly uneounseled convictions in its determination of his criminal history category. We vacate the convictions on two eounts because the *768 government’s proof failed to establish the insured status of the credit union, but affirm the remaining counts. We conclude that there is…

concurring in part, dissenting in part:

The government charged Allen with making false statements in loan applications to federally insured financial institutions, in violation of 18 U.S.C. § 1014 . Proof of federal insurance, therefore, not only was essential to “the establishment of federal jurisdiction,” *773 United States v. Schultz, 17 F.3d 723, 725 (5th Cir.1994), but it also constituted an essential element of the offense, see United States v. Bellucci, 995 F.2d 157, 160 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2719 , 129 L.Ed.2d 844 (1994). Having failed to point to any evidence establishing the essential element of federal insurance during the trial or at oral argument, the government was afforded a final opportunity to identify that evidence in a supplemental brief that this court requested. As far as I am concerned, our solicitude proved of no assistance to the government because, after considering its supplemental briefing, I still believe that the government failed to carry its burden with respect to an element of the offense not only as to the two counts involving the Southern Federal Credit Union, as the majority concludes, but also as to the thirty-three…