Filed: Apr. 14, 2016
Latest Update: Mar. 02, 2020
Summary: Case: 14-20026 Document: 00513464793 Page: 1 Date Filed: 04/14/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-20026 United States Court of Appeals Fifth Circuit FILED UNITED STATES OF AMERICA, April 14, 2016 Lyle W. Cayce Plaintiff - Appellee Clerk v. DARREN DAVID CHAKER, also known as Darren Del Nero, also known as Darrin Shackler, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas Before STEWART, Chief Judge, OWEN and
Summary: Case: 14-20026 Document: 00513464793 Page: 1 Date Filed: 04/14/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-20026 United States Court of Appeals Fifth Circuit FILED UNITED STATES OF AMERICA, April 14, 2016 Lyle W. Cayce Plaintiff - Appellee Clerk v. DARREN DAVID CHAKER, also known as Darren Del Nero, also known as Darrin Shackler, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas Before STEWART, Chief Judge, OWEN and C..
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Case: 14-20026 Document: 00513464793 Page: 1 Date Filed: 04/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20026 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, April 14, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
DARREN DAVID CHAKER, also known as Darren Del Nero, also known as
Darrin Shackler,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before STEWART, Chief Judge, OWEN and COSTA, Circuit Judges.
CARL E. STEWART, Chief Judge:
In an attempt to shield a residential property from foreclosure,
Defendant-Appellant Darren Chaker (“Chaker”) transferred his assets
through two entities and caused three bankruptcies to be filed. At a hearing
in connection with his second bankruptcy, Chaker failed to disclose certain
rental income from the property. After a six-day bench trial, the district court
convicted him on one count of bankruptcy fraud in violation of 18 U.S.C.
§ 157(3). He now appeals that conviction, raising several constructive
amendment arguments and a literal truth defense. Finding no error, we
AFFIRM.
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No. 14-20026
BACKGROUND
Altogether, this case involves two business entities, three bankruptcies,
and several residential properties owned by Chaker. Reduced to its essentials,
however, Chaker’s prosecution turns on a fraudulent misrepresentation that
he made to a bankruptcy court in March 2007. We discuss the relevant facts
from Chaker’s trial “in the light most favorable to the government and defer to
all reasonable inferences drawn by the trial court.” United States v. Tovar, 719
F.3d 376, 388 (5th Cir. 2013) (quotation marks and citation omitted).
A. Factual Background
The story starts in 2004, when Chaker purchased the property at issue—
a home at 11307 Pampass Pass on the outskirts of Houston—and represented
on his loan application that it would be his primary residence. One year later,
and with the help of a Nevada lawyer specializing in business and trust
formation, Chaker began creating entities and shuffling the Pampass Pass
property through those entities. Chaker first formed Platinum Holdings Group
Trust (“Platinum Holdings”) and made himself the primary beneficiary and
primary trustee, holding exclusive access to and control of Platinum Holding’s
income and assets. As trustee of Platinum Holdings, Chaker promptly created
Core Capital, LLC (“Core Capital”). Platinum Holdings was given all voting
rights in Core Capital and was entitled to all of Core Capital’s profits. Chaker
transferred all of his assets, including the Pampass Pass property, to Platinum
Holdings, and then, as trustee of Platinum Holdings, transferred them to Core
Capital. Chaker also executed a general warranty deed for the Pampass Pass
property, conveying it to Core Capital, in September 2005. That deed was
never recorded.
Beginning in September 2005, Chaker rented the Pampass Pass
property to a series of short-term tenants, at times transacting in his own name
and at other times transacting in the name of Core Capital. Chaker’s first
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tenant lease ran from September 2005 to January 2006, and when it ended,
Core Capital sued that tenant in state court for $70,000 in alleged damage to
the property. A second tenant leased the property from January to February
2006. Finally, a third tenant lease ran from January to June 2007.
Meanwhile, Chaker failed to keep up his mortgage obligations on the
Pampass Pass property. When the tax bill for the Pampass Pass property came
due in January 2005, Chaker did not pay it. Instead, he obtained a loan from
a company called Tax Ease, which paid the taxes for Chaker and placed a lien
on the property. Chaker did not inform Saxon Mortgage, the mortgage
servicing company responsible for the Pampass Pass property, of the 2004 tax
delinquency or the Tax Ease lien.
Chaker also failed to pay his 2005 taxes when they came due in January
2006 and stopped making mortgage payments that April. Saxon Mortgage
paid the delinquent 2005 taxes. Saxon Mortgage also paid off the Tax Ease
lien stemming from Chaker’s delinquent 2004 taxes in order to preserve its
superior security interest in the Pampass Pass property. Because Chaker was
in monetary default, i.e., delinquent on his mortgage payment, and non-
monetary default, i.e., encumbering the Pampass Pass property with the
superior Tax Ease lien, Saxon Mortgage initiated foreclosure proceedings on
the Pampass Pass property. Saxon Mortgage set a foreclosure date of
December 5, 2006.
B. Bankruptcy Proceedings
Chaker caused three bankruptcies to be filed, all following the same
strategy—on the same day Saxon Mortgage was set to foreclose on the
Pampass Pass property, Chaker filed a bankruptcy petition and used the
bankruptcy court’s automatic stay to put the foreclosure on ice. Thus, in
connection with Saxon’s first foreclosure date, Chaker filed a Chapter 13
bankruptcy petition on December 5, 2006. Chaker attached Statements of
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Financial Affairs (hereinafter, “Statements”) and Schedules to that filing,
electronically signing under penalty of perjury that he had reviewed the
Statements and Schedules and that they were true and accurate to the best of
his knowledge. In those Statements and Schedules, Chaker claimed the
Pampass Pass property as his homestead, and represented, inter alia, that he
had no interest in any business entities; that he had no unexpired leases; and
that, within the previous ten years, he had not transferred any property to a
self-settled trust of which he was a beneficiary. Chaker did not disclose his
relationship with Platinum Holdings and Core Capital in his Statements or
Schedules.
Chaker’s first bankruptcy invoked an automatic stay, and Saxon
Mortgage could not foreclose on the Pampass Pass property until the stay was
lifted. Ultimately, the stay was lifted in February 2007, when the bankruptcy
court dismissed Chaker’s first bankruptcy.
Saxon Mortgage set a new foreclosure date of March 6, 2007. The same
day, Chaker filed a second Chapter 13 bankruptcy petition, attaching
Statements and Schedules under penalty of perjury that were nearly identical
to those from his first bankruptcy. Chaker’s filing once more invoked an
automatic stay on Saxon Mortgage’s foreclosure. Because this was his second
debtor filing, however, the automatic stay would last only 30 days unless
Chaker could extend it by showing that his second filing was not made in bad
faith. Chaker moved to extend the stay, and the bankruptcy court held a
hearing on March 26, 2007. At that hearing, Chaker testified, inter alia, that
he currently had a tenant in the Pampass Pass home. Critically, the following
exchange occurred:
[Attorney:] Okay. Do you have an actual lease?
[Chaker:] Yes.
...
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[Attorney:] How long has the property been rented?
[Chaker:] Since the first week of January; just after I filed bankruptcy.
...
[Attorney:] Had you ever rented the property out prior to January?
[Chaker:] No.
The bankruptcy court ultimately declined to extend the stay. The court later
dismissed Chaker’s second bankruptcy in July 2007.
Saxon Mortgage set a third foreclosure date of August 7, 2007, and
Chaker again filed for bankruptcy on the day of the scheduled foreclosure. This
time, however, Chaker filed a Chapter 11 petition with Core Capital as the
debtor. Because Core Capital was a new debtor, this resulted in a fresh stay
that was not subject to the 30-day limitation; however, Saxon Mortgage elected
to foreclose as scheduled and to move to retroactively annul the stay. The
bankruptcy court ultimately granted Saxon Mortgage’s motion and dismissed
Core Capital’s bankruptcy petition. At a status conference, the court informed
Chaker that it planned to make a criminal referral to the United States
Attorney’s Office.
C. Criminal Prosecution
In July 2012, a federal grand jury returned a two-count superseding
indictment against Chaker. Count One, on which Chaker was convicted,
alleged bankruptcy fraud in violation of 18 U.S.C. § 157(3). 1 Specifically,
Count One alleged that beginning in approximately March 2007, Chaker
“devised and intended to devise a scheme and artifice to defraud his creditors,
the U.S. Bankruptcy Court, the Bankruptcy Trustee, and the United States
Trustee.” Count One further alleged that Chaker executed this scheme at a
1Count Two alleged that Chaker made a false declaration under penalty of perjury in
his August 2007 bankruptcy proceeding, in violation of 18 U.S.C. § 152(3). The district court
found Chaker not guilty of the false declaration offense, and it is not directly at issue here.
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March 26, 2007, bankruptcy hearing when he “falsely and fraudulently
represented to the Court that the home Pampass Pass was never leased out
prior to January 2007, when he then well knew in truth and in fact that he
had” previously leased the property several times.
Chaker waived his right to a jury trial, and the district court held a six-
day bench trial. At the close of the Government’s case-in-chief, Chaker moved
for a judgment of acquittal, making, inter alia, a constructive amendment
argument. He orally renewed the same motion at the close of his defense, at
which time the court denied it without prejudice.
After taking the matter under advisement, the court delivered its verdict
from the bench and announced factual findings. Finding Chaker guilty on the
bankruptcy fraud offense, the court made the following “summary findings”:
(1) On March 26, 2007, defendant had an equitable or beneficial
interest in the Pampass Pass property which he purchased in
2004;
(2) Defendant knew he had some interest, even if he could not define
it legally, in the property;
(3) Defendant engaged in a scheme to defraud the Bankruptcy Court
and his creditor, Saxon, the entity representing the holder of the
Pampass Pass property mortgage;
(4) Defendant intentionally testified falsely while under oath in
denying that the property had been ‘rented out’ prior to his
personal bankruptcies when asked about the matter by Saxon’s
attorney on March 26, 2007 in his second bankruptcy, . . .
(5) The testimony was material to the strategy of Saxon and the need
for both Saxon and the Bankruptcy Court to have truthful
testimony in order to assess whether the defendant was in good
faith in filing the second bankruptcy and whether Defendant’s
Proposed Plan of Reorganization was feasible.
After acquitting Chaker on a separate offense, the court also made a number
of “specific findings” regarding Chaker’s creation of Platinum Holdings and
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Core Capital and his subsequent transfer of his assets into those entities,
stating that these acts were “all part of the scheme.”
Chaker filed a post-trial motion for acquittal or new trial, arguing, inter
alia, that the court had constructively amended the indictment by basing his
guilt on a scheme to defraud that was different from and broader than the
scheme alleged in the indictment. The court denied the motion and later
sentenced Chaker to fifteen months’ imprisonment. Chaker timely appealed.
DISCUSSION
On appeal, Chaker challenges his bankruptcy fraud conviction, arguing
that the district court constructively amended the indictment in a number of
ways. He also argues that the district court erred in convicting him based on
a false or fraudulent statement that was literally true. We address each issue
in turn.
A.
Chaker’s first three arguments each raise constructive amendment
concerns. Accordingly, we begin with general principles of law that guide our
analysis on all three arguments. The Fifth Amendment “guarantees criminal
defendants a right to be tried solely on allegations in an indictment returned
by the grand jury.” United States v. Thompson, 647 F.3d 180, 183–84 (5th Cir.
2011) (citing Stirone v. United States,
361 U.S. 212, 217 (1960)). From this
guarantee arises the doctrine of constructive amendment, which provides that
“[a]fter an indictment has been returned its charges may not be broadened
through amendment except by the grand jury itself.” United States v. Griffin,
800 F.3d 198, 202 (5th Cir. 2015) (quoting
Stirone, 361 U.S. at 215–16), cert.
denied, No. 15-7579,
2016 WL 763615 (U.S. Feb. 29, 2016). In this circuit, a
constructive amendment occurs when the court “permits the defendant to be
convicted upon a factual basis that effectively modifies an essential element of
the offense charged” or upon “a materially different theory or set of facts than
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that which [the defendant] was charged.” United States v. McMillan, 600 F.3d
434, 451 (5th Cir. 2010) (quoting United States v. Hoover,
467 F.3d 496, 500–
01 (5th Cir. 2006)).
1.
Chaker preserved his first constructive amendment argument by timely
raising it below. We review preserved constructive amendment claims de novo.
United States v. Jara-Favela, 686 F.3d 289, 299 (5th Cir. 2012).
Consistent with his motion for acquittal below, Chaker first argues that
the district court, in its verdict, constructively amended the indictment by
convicting him based on one scheme to defraud—a plan that originated in 2005
when he created Platinum Holdings and Core Capital and began funneling his
assets through those entities—when the grand jury’s indictment alleged a
different and narrower scheme—a plan that originated when Chaker filed his
second bankruptcy in March 2007 and was executed when Chaker made a false
and fraudulent statement at a hearing in connection with that second
bankruptcy. We disagree.
Generally summarizing the elements of the offense, bankruptcy fraud
requires a showing that Chaker devised a scheme or artifice to defraud and
that, for the purpose of executing that scheme, he made a false or fraudulent
representation during a bankruptcy proceeding. See 18 U.S.C. § 157(3). As
mentioned supra, the indictment alleged a particular scheme to defraud and a
particular false or fraudulent representation: in approximately March 2007,
Chaker hatched a plan to stay a foreclosure on the Pampass Pass property by
filing a bankruptcy with false Statements and Schedules, and, on March 26,
2007, he executed that plan by falsely and fraudulently representing to a
bankruptcy court that the Pampass Pass property had not been leased out
before January 2007. In its verdict, the district court made factual findings
attendant to the alleged scheme and the alleged false or fraudulent
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representation, finding that Chaker knew he had some equitable or beneficial
interest in the Pampass Pass property; that he engaged in a scheme to defraud,
inter alia, Saxon Mortgage, the entity servicing his loan on the Pampass Pass
property; and that he executed this scheme on March 26, 2007, by intentionally
failing to disclose to Saxon Mortgage and the bankruptcy court that he had
rented out the Pampass Pass property prior to January 2007. In light of these
findings directly addressing the 2007 scheme charged in the indictment, we
are convinced that the district court did not convict Chaker “upon a factual
basis that effectively modifie[d] an essential element of the offense charged” or
“on a materially different theory or set of facts than that with which [he] was
charged.” Thompson, 647 F.3d at 185 (alterations in original) (quotation
marks and citation omitted). Thus, there was no constructive amendment. See
id.
Chaker argues that, notwithstanding these findings relating to the 2007
scheme charged in the indictment, the district court’s “specific findings” still
resulted in a constructive amendment. Specifically, he points to the court’s
reference to pre-2007 acts—Chaker’s creation of Platinum Holdings and Core
Capital and his subsequent transfer of his assets through those entities—“as
all part of the scheme” and argues that he was convicted of a scheme broader
than that charged in the indictment. Read in context with the rest of the
district court’s verdict and the parties’ trial theories, we are not persuaded that
the court’s specific findings resulted in a constructive amendment.
Important here, the district court pressed the Government to pursue a
single trial theory from beginning to end, i.e., that Chaker’s conviction turned
on whether he testified falsely or fraudulently at the March 2007 hearing in
connection with his second bankruptcy and that any ancillary evidence related
to Platinum Holdings, Core Capital, and Chaker’s property transfers was
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relevant only to show his intent or state of mind at the March 2007 hearing. 2
See Thompson, 647 F.3d at 186 (rejecting a constructive amendment argument
where, among other things, “the government presented a single, consistent
theory of conviction throughout” trial). Also important, Chaker pursued a
single theory in defense of the Government’s case, i.e., that he disclosed his
rental history and his interests in Platinum Holdings and Core Capital to his
attorneys, who were then supposed to include that information in his
bankruptcy Statements and Schedules, such that he had no motive or intent
to hide Pampass Pass’ rental history from Saxon Mortgage or the bankruptcy
court at the March 2007 hearing. 3
The gap between the Government’s theory and Chaker’s defense
presented a difficult question for the district court to resolve: did Chaker
intentionally testify falsely or fraudulently at the March 2007 hearing as part
of a scheme to defraud or was his testimony merely an innocent
misrepresentation? 4 The district court answered this question in its “specific
findings” and explained why Chaker’s March 2007 testimony was
2 At several points during the trial, the district court clarified its understanding of the
Government’s theory as relying on evidence of Platinum Holdings, Core Capital, and
Chaker’s property transfers to show that Chaker intended to lie to the bankruptcy judge and
Saxon Mortgage, not to show a scheme to defraud different from that charged in the
indictment. These curative exchanges between the court and the Government protected
against a constructive amendment of the indictment. Cf. United States v. Gates, 624 F. App’x
893, 897 (5th Cir. 2015) (per curiam) (noting, in the jury trial context, the importance of
“curative measures” to protect against a constructive amendment of the indictment).
3 As Chaker’s counsel stated during opening argument, “Mr. Chaker had filled out papers
for [his attorney], and then relied on [his attorney] to get it right. . . . Mr. Chaker made
mistakes in his testimony, but there was no intent to defraud. And I’m probably going to talk
about a lot of other mistakes that he made, so that the Court can see that this particular
error that the Government is fixating on is not a sign of malice; it’s a sign of incompetence.
Mr. Chaker had no reason to know what the effect of this particular question, and this
particular answer was.”
4 During the Government’s closing argument, the district court recognized this difficulty,
stating, “But I have to find that Mr. Chaker intended to lie in connection with the answer by
Sheppard on this question of prior rentals. And it’s a difficult question, okay?”
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demonstrably false and fraudulent and why he knew this to be so. The court’s
reference to Platinum Holdings, Core Capital, and Chaker’s property transfers
in providing this explanation did not cause a constructive amendment of the
indictment; rather, the court merely rejected Chaker’s defense with reference
to evidence that was probative of his intent and the charged scheme and that
was necessary to complete the story. See United States v. Gates, 624 F. App’x
893, 896–97 (5th Cir. 2015) (rejecting a constructive amendment argument
where the Government’s evidence of a fraudulent misrepresentation different
from that charged in the indictment was “probative of the [defendants’]
scheme”); McMillan, 600 F.3d at 451 (similar); see also
Thompson, 647 F.3d at
185 (rejecting a constructive amendment argument where the Government’s
evidence of an uncharged Hobbs act violation “did not amend or alter the
indictment, but rather ‘explained the allegations of the indictment’” (quoting
United States v. Lisinki,
728 F.2d 887, 893 (7th Cir. 1984)).
Chaker argues that the superseding indictment gave no notice that
Platinum Holdings and Core Capital would be relevant at trial. See Hoover,
467 F.3d at 502 (reversing and remanding based on a constructive amendment
of the indictment, where, inter alia, the defendant “may have reasonably relied
on the indictment and only prepared a [limited] defense”). The record belies
this argument. The indictment itself discussed much of this evidence in its
eleven-paragraph “Introduction.” Moreover, in a pre-trial filing, the
Government notified Chaker that it intended to introduce evidence related to
Platinum Holdings and Core Capital as intrinsic to the charged scheme and as
relevant to his state of mind under Federal Rule of Evidence 404(b). Chaker
cannot now claim surprise as relevant to his constructive amendment
argument, particularly when Chaker, not the Government, called the Nevada
lawyer who had created Platinum Holdings and Core Capital to the witness
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stand and solicited detailed testimony about Chaker’s creation of those
entities.
Nor does Stirone, the seminal constructive amendment case on which
Chaker relies, change the result here. In Stirone, the indictment charged the
defendant with a Hobbs Act violation based on unlawful interference with
interstate shipments of sand. See 361 U.S. at 213–14. At trial, however, the
Government broadened its theory and presented evidence that the defendant
not only disrupted interstate sand shipments, but also interfered with
interstate shipments of steel.
Id. at 214. Adding to the problem, the trial court
instructed the jury that the defendant was guilty if he interfered with either
sand or steel that moved in interstate commerce. See
id. The Supreme Court
“held that the government’s presentation of [the steel] theory—along with
instructions permitting the jury to convict based on it—effected a constructive
amendment of the indictment.”
Thompson, 647 F.3d at 185–86 (citing
Stirone,
361 U.S. at 215). The Court further voiced its concern that “it cannot be said
with certainty that with a new basis for conviction added, [the defendant] was
convicted solely on the charge made in the indictment the grand jury returned.”
Stirone, 361 U.S. at 217.
Stirone is distinguishable on its facts and circumstances. As discussed
supra, the Government did not maintain two different theories at trial—from
start to finish, the Government maintained that Chaker’s guilt was predicated
on the scheme concerning his 2007 bankruptcy proceedings and that evidence
related to Platinum Holdings and Core Capital was relevant only to show his
intent. See
Thompson, 647 F.3d at 186. Moreover, because this was a bench
trial with a lengthy transcript of the district court’s verdict, we are not left to
guess as to which theory a jury relied upon to convict Chaker as was the case
in Stirone.
See 361 U.S. at 217. Our review of the verdict and the allegations
in the indictment indicates that the court convicted Chaker based on the 2007
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scheme charged in the indictment and only considered evidence related to
Platinum Holdings and Core Capital to explain Chaker’s intent and motive at
the March 2007 hearing.
For these reasons, we are convinced that Chaker was convicted based on
the 2007 scheme to defraud alleged in the indictment and not a different or
broader scheme. Accordingly, we reject Chaker’s first constructive amendment
argument.
2.
Chaker’s next constructive amendment argument is raised for the first
time on appeal, and thus our review is for plain error. See United States v.
Stanford, 805 F.3d 557, 566 (5th Cir. 2015) (noting that plain error requires a
showing of clear or obvious error that affects substantial rights and “seriously
affects the fairness integrity, public reputation of judicial proceedings”
(quotation marks, alteration, and citation omitted)). He argues that the
district court constructively amended the indictment by incorrectly
formulating the elements of his bankruptcy fraud conviction. Specifically, he
contends that the court convicted him of bankruptcy fraud based on five
elements from United States v. Spurlin,
664 F.3d 954 (5th Cir. 2011), that
applied to his false declaration offense but not to his bankruptcy fraud offense. 5
Because Chaker’s argument misstates the district court’s verdict, we disagree.
Recall that Count One of the indictment charged bankruptcy fraud in
violation of 18 U.S.C. § 157(3) and that Count Two of the indictment charged
5 Chaker also argues that the district court erred in convicting him of bankruptcy fraud
without requiring a “specific intent” element. Assuming such a finding is required, Chaker
does not explain which aspect of “specific intent” he thinks was lacking in the district court’s
verdict—the district court made ample findings that Chaker “intentionally testified falsely
under oath,” and that he did so after filing a “bankruptcy . . . to prevent the foreclosure” of
his Pampass Pass property so that he could shield his rental and tenant-lawsuit income from
his creditor, Saxon Mortgage.
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making a false declaration under penalty of perjury in violation of 18
U.S.C. § 152(3). To begin its verdict, the district court recited the elements of
the bankruptcy fraud offense by reading the text of § 157(3); without
transitioning, the court then cited Spurlin for the elements of the false
declaration offense. The court’s subsequent discussion of the bankruptcy fraud
offense—in both its “summary findings” and its more detailed “specific
findings”—dispels any notion that the court erroneously applied Spurlin’s five
elements to the bankruptcy fraud offense. In both places, the court articulated
findings that do correspond to Chaker’s bankruptcy fraud conviction, but do
not correspond to his acquittal on the false declaration offense or the Spurlin
elements, namely that Chaker engaged in a scheme or artifice to defraud the
bankruptcy court and his creditor, Saxon Mortgage. We see no plain error.
3.
Chaker’s final constructive amendment argument is also raised for the
first time on appeal such that our review is for plain error. 6 See Stanford, 805
F.3d 557. He argues that the district court’s verdict impermissibly
reformulated the misrepresentation alleged by the grand jury, to wit, that
Chaker “falsely and fraudulently represented to the Court that the home
Pampass Pass was never leased out prior to January 2007.” Again, we
disagree.
Chaker’s appellate brief selectively quotes the indictment, and so we
begin by reproducing the pertinent paragraph:
[D]efendant herein, did devise a scheme and artifice to defraud and
for the purpose of executing and concealing the scheme and
artifice, and attempting to do so, made false and fraudulent
representations . . ., specifically his testimony during a bankruptcy
6Although Chaker moved before trial to dismiss the indictment based on an alleged
discrepancy between the charged misrepresentation and his actual March 2007 testimony,
that motion did not challenge (and, at that point, could not have challenged) any discrepancy
between the indictment and the verdict.
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hearing in which, while under oath, the defendant falsely and
fraudulently represented to the Court that the home Pampass
Pass was never leased out prior to January 2007, when he then
well knew in truth and in fact, that he had previously contracted
with [a realtor,] who secured at least two rental contracts . . . .
The district court made factual findings directly speaking to each allegation in
this paragraph. The court found that Chaker “intentionally testified falsely
while under oath in denying that the property had been ‘rented out’ prior to
his personal bankruptcies” and that the specific false or fraudulent
misrepresentation was Chaker’s answer of “No” to the question, “Had you ever
rented the property out prior to January,” at the March 2007 hearing. The
court further found:
[Chaker’s] statement denying that he previously had rented out
the property was false because he did rent out the property. Mr.
Chaker treated the house as his own to use or to rent. He hired
and dealt with the realtor. There are almost 200 pages of
documents signed by defendant personally demonstrating his
personal involvement in the leasing in 2005 and ‘6 both before and
after the creation of the LLC, Core Capital.
Based on these findings, it is clear that the court found the specific
misrepresentation alleged in the indictment and further found that
misrepresentation to be false or fraudulent for the specific reason alleged in
the indictment. See Hoover, 467 F.3d at 502 (“In accordance with the Supreme
Court’s decision in Stirone v. United States, when the government chooses to
specifically charge the manner in which the defendant’s statement is false, the
government should be required to prove that it is untruthful for that reason.”
(footnote omitted)). Thus, the district court’s formulation of the indictment’s
misrepresentation did not constructively amend the indictment, and there is
no plain error.
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B.
Constructive amendment arguments aside, Chaker argues that the
district court erred in convicting him of bankruptcy fraud based on a statement
that was “literally true.” As he did in his motion for acquittal, Chaker argues
that Core Capital held legal title to the Pampass Pass property and thus his
March 2007 testimony that “he” had never leased the property prior to January
2007 was literally true. This argument fails for multiple reasons, not the least
of which being that Chaker’s prosecution and conviction was for bankruptcy
fraud, not perjury. See, e.g., United States v. Abrams, 568 F.2d 411, 422 (5th
Cir. 1978) (citing Bronston v. United States,
409 U.S. 352 (1973), and noting
that the “federal perjury statute is not violated when a witness gives an
evasive, nonresponsive but literally true answer, even if the answer is
intentionally misleading and arguably false by negative implication” (internal
citation omitted)).
In any event, Chaker thoroughly pressed his legal title argument to the
district court, and the court rejected it with detailed factual findings. Thus,
his argument remains nothing more than a challenge to the sufficiency of the
evidence as to the court’s findings. “When a defendant challenges a bench-trial
conviction on sufficiency-of-the-evidence grounds, we focus on whether the
finding of guilt is supported by substantial evidence, i.e., evidence sufficient to
justify the trial judge, as the trier of fact, in concluding beyond a reasonable
doubt that the defendant is guilty.’” Tovar, 719 F.3d at 388 (citations and
internal quotation marks omitted). In specific terms, the district court found
that Chaker’s equitable or beneficial interest in the Pampass Pass property,
his extensive personal involvement in the rental process, and the context of his
representations in the March 2007 bankruptcy hearing made his literal truth
defense untenable and his “legal title” argument unpersuasive. We affirm
these findings as supported by substantial evidence. See
id.
16
Case: 14-20026 Document: 00513464793 Page: 17 Date Filed: 04/14/2016
No. 14-20026
CONCLUSION
After careful review of the record and Chaker’s arguments, we reject his
constructive amendment arguments and conclude that the district court’s
rejection of his literal truth argument is supported by substantial evidence.
AFFIRMED.
17
