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United States v. Priest

filed: June 16, 1992.

UNITED STATES OF AMERICA PLAINTIFF-APPELLEE,
v.
JOHN PRIEST DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of California. D.C. No. CR 90-20023 WAI. William A. Ingram, District Judge, Presiding.

Before: Tang, Pregerson, and Boochever, Circuit Judges.

MEMORANDUM

John H. Priest appeals his jury conviction for making false statements to federally insured banks in connection with loan applications in violation of 18 U.S.C. §§ 2 and 1014, and scheming to defraud a bank in violation of 18 U.S.C. § 1344. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Discussion

On six occasions between 1984 and 1986, Priest submitted false copies of income tax returns in support of applications for loans and extensions of loans at three federally insured banks. The returns submitted to the banks reflected incomes that were significantly higher than the returns filed with the Internal Revenue Service ("IRS"). On appeal, Priest argues (1) that the evidence was insufficient to convict him, (2) that the district Judge erred in denying his motion to suppress his tax returns, and (3) that he was prevented from testifying on his own behalf by his attorney and by the district Judge.

I.

Priest challenges the sufficiency of the evidence on two grounds. First, he argues that the government failed to prove that the banks were federally insured at the time of the offenses. This argument is without merit. The government presented testimony from bank officials of each bank that the banks were federally insured. This is sufficient. "The rule, as stated in this circuit and elsewhere, is that the uncontradicted testimony of a ranking official of the institution is sufficient to establish that the institution is federally insured." United States v. Phillips, 606 F.2d 884, 887 (9th Cir. 1979), cert. denied, 444 U.S. 1024 (1980).

Priest also argues that although the tax returns submitted to the banks indicated a substantially higher income than the returns submitted to the IRS, the government failed to prove that the returns submitted to the banks reflected an inaccurate picture of his financial status at that time. This claim betrays a flawed understanding of 18 U.S.C. §§ 1014 and 1344. The "false statement or report" and the "false or fraudulent pretenses or representations" exist because Priest asserted that the documents he submitted to the banks were true and accurate copies of his IRS tax returns, not -- as Priest claims here -- because the returns did not accurately reflect his actual financial status. Thus, there is no error in the government's failure to adduce evidence as to Priest's financial condition.

II.

Next, Priest asserts that the trial court erred in not suppressing his tax returns because the returns were not procured in accord with the procedures established by 26 U.S.C. § 6103(i)(1)(B). We reject this argument. Suppression is not an appropriate remedy for violation of 26 U.S.C. § 6103. "No court has held that a section 6103 violation warrants dismissal or suppression." United States v. Michaelian, 803 F.2d 1042, 1049 (9th Cir. 1986); United States v. Claiborne, 765 F.2d 784, 793 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986). Accordingly, the trial court did not abuse its discretion by denying Priest's motion to suppress.

III.

Priest's final contention is that his fifth amendment right to testify on his own behalf was violated by the conduct of his own attorney and by that of the district Judge. He argues that the district Judge erred by denying his motion to reopen the case to allow him to testify.

Although a criminal defendant's right to testify is a personal and fundamental right, guaranteed by the Fifth, Sixth and Fourteenth Amendments, Rock v. Arkansas, 483 U.S. 44, 51-56 (1987), the right is also subject to reasonable regulation by the states, see e.g., United States v. Hearst, 563 F.2d 1331, 1340 (9th Cir. 1977) (holding that the right to testify carries with it the obligation to submit to cross-examination), cert. denied, 435 U.S. 1000 (1978). The issue before us is whether the district court abused its discretion in denying Priest's motion. See United States v. Kelm, 827 F.2d 1319, 1323 (9th Cir. 1987). Based upon our review of this case, we conclude that the district court did not abuse its discretion in denying Priest's motion.

In determining whether to grant a motion to reopen, the district court considers the sufficiency of the reasons for the defendant's failure to offer evidence at the proper time, id., and the potential value of the evidence, ...


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