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United States v. Grant

United States Court of Appeals, Fifth Circuit

March 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
JULIE GRANT, also known as Juliana Jacobs Grant, also known as Juliana Okwue Jacobs Grant, also known as Julianna Okwuenu, Defendant-Appellant

         Appeal from the United States District Court for the Northern District of Texas

          Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge:

         Defendant-Appellant Julie Grant was charged with four counts of making false statements under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. § 152(3). She moved to dismiss Counts Two and Four of the indictment for failure to state an offense. The district court denied the motion. At trial, the jury found Defendant guilty on Counts Two through Four. In determining Defendant's sentence, the district court calculated Defendant's guideline range using the perjury guideline, U.S.S.G. § 2J1.3. Defendant timely appealed, challenging (a) the district court's failure to dismiss Counts Two and Four; (b) the sufficiency of the evidence on Counts Two and Four; and (c) the district court's decision to use the perjury guideline, instead of the fraud guideline, to calculate Defendant's sentence. We AFFIRM.

         I.

         After filing five bankruptcy petitions between 2008 and 2011, Defendant was indicted on October 8, 2014, and charged with four counts of bankruptcy fraud under 18 U.S.C. § 152(3). Defendant moved to dismiss the indictment. The Government then filed a superseding indictment that, relevantly here, was identical to the original indictment.

         Count One of the superseding indictment alleges that in her December 2009 bankruptcy filing, Defendant knowingly and fraudulently failed to disclose her prior October 2008 and March 2009 bankruptcy filings. Count Two alleges that in the same filing, Defendant knowingly and fraudulently disclosed only her social security number ending in 5571 (the "5571 number") when Defendant knew that she had also used another social security number ending in 3167 (the "3167 number"). Count Three alleges that in her August 2011 bankruptcy filing, Defendant knowingly and fraudulently failed to disclose her prior October 2008 and March 2009 bankruptcy filings. Finally, Count Four alleges that in the same filing, Defendant knowingly and fraudulently disclosed only the 5571 number when Defendant knew that she had also used the 3167 number.

         The district court treated Defendant's motion to dismiss the indictment as one to dismiss the superseding indictment. Regarding Counts Two and Four, Defendant asserted that both Counts rested upon an erroneous statement of federal law because they alleged that Form B-21 (an official bankruptcy form that requires disclosure of the debtor's social security numbers) required the disclosure of every social security number "ever used" by the debtor. She argued that Form B-21 does not require a debtor to disclose every social security number that the debtor has ever used, instead arguing that she needed to disclose only the social security numbers that she "has." She contended that the offense required an affirmative false statement and asserted that her statement listing only one social security number was not false. The district court denied the motion. Before trial, the district court reexamined Defendant's motion to dismiss Counts Two and Four. The court denied the motion, stating that the case would proceed with "the indictment as is."

         At trial, the Government presented extensive evidence that Defendant had the 3167 number from 1996 until at least 2008. In April 2008, Defendant applied for a new social security number and, in July 2008, she was issued the 5571 number. In a bankruptcy petition filed in December 2009, Defendant listed only the 5571 number on her Form B-21 filed in the bankruptcy proceeding. In August 2011, she filed another Form B-21 in a new bankruptcy proceeding and listed only the 5571 number. In both instances, the Forms B-21 required the debtor to list her social security number. Both Forms B-21 further directed the debtor to "state all" social security numbers if the debtor "has" more than one. Defendant declared both Forms B-21 true under penalty of perjury. Defendant presented no evidence and moved for a judgment of acquittal on all counts. The district court denied the motion. The jury found Defendant guilty of Counts Two through Four. She was found not guilty on Count One.

         Defendant's presentence report determined that her total offense level was 14, applying U.S.S.G. § 2J1.3 (perjury). With an offense level of 14 and a Category I criminal history score, Defendant faced a guidelines range of 15 to 21 months. Defendant objected to the use of the perjury guideline, arguing that her offense was a fraud offense and therefore, that the offense level should be calculated under U.S.S.G. § 2B1.1 (theft, embezzlement, receipt of stolen property, property destruction, and offenses involving fraud or deceit) (relevant here "fraud"). The district court found that perjury was the correct guideline and accordingly sentenced Defendant to three concurrent terms of 15 months of imprisonment, followed by a total of one year of supervised release. Defendant timely appealed.

         II.

         A.

         Defendant argues that "Counts two and four of the superseding indictment are legally deficient because they rest on an erroneous statement of federal law." Specifically, she argues that "Form B-21 does not require disclosure of any number previously 'used.' It merely requires disclosure of the number the debtor currently 'has.'" Defendant therefore reasons that the superseding indictment does not allege a false statement because it states that Form B-21 required that she "truthfully state all social security numbers ever used" by her when the Form did not actually require such disclosure.

         This court reviews a preserved challenge to the sufficiency of an indictment de novo. United States v. Hoover, ...


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