Appeal from the United States District Court for the Western District of Washington. D.C. Nos. CR-90-55-Z. Thomas S. Zilly, District Judge, Presiding.
Before: Wright and Alarcon, Circuit Judges, and Fong,*fn* District Judge.
From December 1985 until mid-1989, the appellants participated in a scheme to defraud homeowners of their properties by effecting a transfer of ownership to their own companies and agreeing to assume responsibility for all past due and future mortgage payments. After obtaining the properties, the appellants failed to make the necessary payments, resulting in the foreclosure of the properties. Substantial losses were suffered by the original owners and subsequent purchasers. A jury convicted the appellants of conspiracy, mail fraud, and equity skimming. They appeal.
The appellants challenge three of the court's supplemental jury instructions. They argue that the court's response to the jury's first question was plain error because it lessened the government's burden of proof to a negligence standard by permitting the jury to convict them for conduct they should have known was illegal. See United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.), cert. denied, 493 U.S. 969 (1989) (when appellants fail to object, we review for plain error).
Here, the court's initial instruction to the jury covered the mens rea requirement for each substantive charge. The supplemental instruction says that specific intent means knowing conduct committed "purposely" and with "intent to violate the law." We fail to see how the jury could interpret the instruction as permitting a finding of guilty based on negligence.
The appellants argue that the court's responses to jury questions two and three introduced the Pinkerton conspiracy theory, a basis for criminal liability not addressed in their closing statements.
They contend incorrectly that the Pinkerton theory was not invoked until after deliberations had begun. Instruction 16*fn2 explained to the jury the principles of Pinkerton liability. The court's response to the jury question did not alter or amplify Instruction 16's explanation of the theory.
The appellants also argue that the court erred in failing to caution the jury that their deliberations must not be based on hypothetical facts.
The court's initial instruction explained the proper basis for a verdict. Its response did not imply that the jury could rely on hypothetical facts to convict the appellants and informed the jury of the law by which they were to make their determinations.
The appellants argue that the court erred when it did not require the government to show that they formally assumed the loans on the fraudulently acquired properties.
Each appellant was convicted of equity skimming under 12 U.S.C. § 1709-2. In 1988, Congress amended the statute to exclude explicitly any requirement that a defendant formally assume the underlying mortgage to be held responsible under the statute. The appellants argue that their actions were not criminal because prior to the amendment, the law required them to "assume the mortgage" for criminal penalties to attach.
Statutory amendments do not show that Congress intended to change the law. Callejas v. McMahon, 750 F.2d 729, 731 (9th Cir. 1984). Amendments may merely clarify what was initially intended. United States v. ...