971 F.

2d 481
36 Fed. R. Evid. Serv. 545

UNITED STATES of America, Plaintiff-Appellee,

v.
Leo E. KINGSTON, Jr., Defendant-Appellant.
No. 90-6408.

United States Court of Appeals,

Tenth Circuit.
July 17, 1992.

David W. Lee, Oklahoma City, Okl., for defendant-appellant.

Arlene Joplin, Asst. U.S. Atty. for the Western District of Oklahoma,
Oklahoma City, Okl. (Timothy D. Leonard, U.S. Atty., and Mark A.
Yancey, Asst. U.S. Atty., on the brief), for plaintiff-appellee.
Before McKAY, Chief Judge, SETH, Circuit Judge, and FINESILVER,
Chief District Judge.1
McKAY, Chief Judge.

Appellant Leo E. Kingston, Jr., was named in a fifteen-count indictment on

June 5, 1990, in the Western District of Oklahoma. The indictment charged
defendant with one count of conspiracy to defraud the United States, in
violation of 18 U.S.C. 371; five counts of making false statements and
causing false statements to be made and concealing material facts or causing
material facts to be concealed, in violation of 18 U.S.C. 1001 and 1002;
eight counts of mail fraud and aiding and abetting, in violation of 18 U.S.C.
1341 and 1342; and one count of equity skimming and aiding and abetting, in
violation of 12 U.S.C. 1709-2 and 18 U.S.C. 2. A jury returned guilty
verdicts on all counts.

These convictions stemmed from Appellant's activities in the real estate

business. Appellant was the sole proprietor of Leo E. Kingston Investments,
which purchased and sold real property in the Oklahoma City area. Some of

these properties involved financing guaranteed by the Department of Housing

and Urban Development ("HUD") or the Veteran's Administration ("VA"). The
charges against Appellant concerned his actions in obtaining such financing and
the transfer of those financed properties to another company, E & S
Investments, established by Appellant and his wife. Appellant challenges these
convictions on a number of grounds.
Challenges to Evidentiary Rulings
3

We first address defendant's claims that the district court improperly admitted
and excluded certain evidence. We may reverse the district court's decision to
admit or exclude evidence only if there has been an abuse of discretion. United
States v. Cooper, 733 F.2d 1360, 1366 (10th Cir.), cert. denied, 467 U.S. 1255,
104 S.Ct. 3543, 82 L.Ed.2d 847 (1984).

Appellant claims the district court improperly admitted testimony by loan

default counselors about information contained in telephone records. Appellant
asserts this evidence was inadmissible under Fed.R.Evid. 901(b)(5) and (6)
because he was insufficiently identified as one of the parties to the conversation
described in those records.

The testimony at issue consisted of conversations the counselors had with

Appellant and his wife regarding the default of properties owned by their
company, E & S Investments. Fed.R.Evid. 901(b)(6) requires authentication or
identification of the parties participating in a telephone conversation in order
for the substance of such a conversation to be admissible as evidence. Appellant
asserts that the required authentication was lacking and, thus, admission of the
substance of the telephone conversations constitutes reversible error.

As evidence of authentication, one of the loan counselors testified that in

pursuing a delinquent E & S Investments account, she called the telephone
number given for E & S Investments and left a message on the company's
answering machine. R.Vol. VIII at 227. That message prompted a return call
from a person informing the loan counselor that the proper person to reach
concerning the delinquent account was a Mr. Kingston at the telephone number
405-949-2866. Id. at 228. The loan counselor called that telephone number and
reached a person who identified himself as Mr. Kingston. Id. at 228-29. When
the loan counselor advised Mr. Kingston of the delinquency of the account, Mr.
Kingston responded that he managed the property at issue, but did not have any
ownership responsibilities. Id. at 229. Mr. Kingston then refused to divulge any
more information regarding the property. Id. at 230. Another loan counselor
testified that she spoke with a person reached at that same number who stated

that Mr. Kingston owned the property. Id. at 234. Although the loan counselor
testified that the person she spoke with was Mr. Kingston's wife, the record is
unclear as to what facts led the loan counselor to believe the speaker was Mrs.
Kingston.
7

A split of authority exists among the circuits as to whether self-identification

alone is sufficient to establish the identity of a party to a telephone conversation
where that party is called at a place where he or she could reasonably be
expected to be reached. See, e.g., United States v. Puerta Restrepo, 814 F.2d
1236, 1239 (7th Cir.1987) (self-identification by a speaker alone is not
sufficient authentication); O'Neal v. Morgan, 637 F.2d 846, 850 (2d Cir.1980),
cert. denied, 451 U.S. 972, 101 S.Ct. 2050, 68 L.Ed.2d 351 (1981) (selfidentification sufficient where person is called at a place where he reasonably
could be expected to be). However, where such self-identification is coupled
with additional circumstantial evidence that shows the person answering to be
the person called, sufficient authentication exists. United States v. OrozcoSantillan, 903 F.2d 1262, 1266 (9th Cir.1990); United States v. Pruitt, 702 F.2d
152, 155 (8th Cir.1983).

We conclude the government supplemented the self-identification of Mr.

Kingston with enough circumstantial evidence to sufficiently identify Appellant
as the party called. As discussed above, the government provided evidence that
one of the loan counselors was told that Appellant could be reached at a
specific telephone number and that he was the one to speak with about specific
property in default. The loan counselor called that number and reached a person
who identified himself as Appellant. The person identifying himself as
Appellant was familiar with the specific property at issue. Furthermore, another
loan counselor called the telephone number given for Appellant and reached a
person who stated specifically that Appellant owned the property at issue. We
conclude that, in the face of this evidence, the district court did not abuse its
discretion in allowing testimony on telephone conversations it deemed properly
authenticated.

Appellant further claims that the evidence of the telephone conversation was
inadmissible as hearsay because the government witnesses were testifying
based on notes taken during their telephone conversations rather than from
memory. The district court held that the notes from which these witnesses
testified qualified as business records under Federal Rule of Evidence 803(6).
R.Vol. VIII at 225. We affirm that holding. The government established at trial
that the notes were contemporaneous with the conversation, were part of the
regular course of the loan counselors' business, and otherwise qualified as a
business record under Rule 803(6). Therefore, the district court did not abuse its

discretion in ruling that the notes qualify as an exception to the hearsay rule.
10

Appellant next argues that the trial court committed reversible error when it
refused to prohibit government witnesses from presenting testimony concerning
a HUD policy prohibiting a borrower of HUD-insured funds from using money
other than his or her own to cover costs referred to in the settlement statement.
Appellant claims there is no statute or regulation which requires purchasers of
HUD-financed homes to pay for all charges and fees out of their own funds, but
that three government witnesses nevertheless testified that it was HUD policy to
do so. Appellant asserts that these statements were inadmissible legal
conclusions. Appellant also asserts that these statements were prejudicial
misstatements of law which are unsupported by any federal statute, regulation,
or handbook.

11

The district court denied defendant's motion in limine to exclude such

testimony and overruled repeated objections made by defendant's counsel
during the trial. Under the abuse of discretion standard, we will only reverse a
trial court's decision on the admissibility of evidence where "we are left with 'a
definite and firm conviction that the [trial] court made a clear error of judgment
or exceeded the bounds of permissible choice in the circumstances.' " United
States v. Young, 952 F.2d 1252, 1259 (10th Cir.1991) (quoting United States v.
Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986)).

12

The charges at issue here, counts two and five of the indictment, involve
making a false statement to a government agent in violation of 18 U.S.C.
1001. Specifically, Appellant was charged with causing to be falsely stated on
two HUD Certificates of Commitment that a Ms. Million had paid certain
charges and fees relating to the purchase of real property from her own funds.

13

The elements of 18 U.S.C. 1001 "are 1) that the defendant made a statement,
2) that the statement was false and the defendant knew it was false, 3) the
statement was made knowingly and willfully, 4) the statement was within the
jurisdiction of the federal agency, and 5) the statement was material." United
States v. Fitzgibbon, 619 F.2d 874, 879 (10th Cir.1980). Appellant is correct
that lay witnesses and even expert witnesses are not permitted to give opinions
as to what the law is. See Specht v. Jensen, 853 F.2d 805, 810 (10th Cir.1988),
cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989).
Government witnesses are permitted, however, to testify as to whether certain
truths, if known, would have influenced their decisionmaking for purposes of
18 U.S.C. 1001. The government witnesses in this case were not testifying as
to the law regarding HUD and VA loans. Rather, they were testifying as to the
materiality of the false statements caused to be made by Appellant. In other

words, the government was attempting to show that had the witnesses charged
with administering the loans in question known that Ms. Million in fact had not
paid for the charges and fees incident to the purchase of the property in
question out of her own funds, they would not have permitted her to take out
the loans.
14

Because the witnesses were testifying as to the materiality of the false

statements caused to be made by defendant and not as to the law regarding
HUD and VA loans, we hold that the district court did not abuse its discretion
in admitting the testimony.

15

Appellant also contends that the district court erred in excluding evidence
concerning Oklahoma law on rents and assignment of rents clauses. Appellant
asserts that the evidence was probative of his guilt on charges of equity
skimming in violation of 12 U.S.C. 1709-2. Under the equity skimming
statute, borrowers may not use rents collected on HUD and VA properties for
their own use while failing to make loan payments. Appellant argues that
evidence excluded by the district court would have shown that under Oklahoma
law rents belong to the mortgagor unless the mortgagee has taken affirmative
steps to direct that rents be paid to the mortgagee and that assignment of rents
clauses, such as those used in the HUD and VA mortgages executed by the
Appellant, are void. Appellant contends that the Oklahoma law at issue negated
the requirement that he pay HUD and VA loan payments before using rents
from HUD- and VA-insured properties for his own use. Thus, Appellant argues
that such evidence tended to support the conclusion that he did not have the
required intent to defraud necessary for a conviction under 12 U.S.C. 1709-2.

16

However, if a state statute impairs the operations of a federal statute, the state
statute must give way. Los Alamos School Bd. v. Wugalter, 557 F.2d 709, 713
(10th Cir.1977), cert. denied, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 455
(1977). The trial court excluded the evidence because of the confusion it could
have created in the minds of the jury regarding the supremacy of federal law
over state law where each is in direct conflict with the other. We find no abuse
of discretion in the district court's exclusion of this evidence.

17

Appellant next contends that testimony that a transaction in which defendant

participated involved a "straw-buyer" was unduly prejudicial and that such
references should have been excluded by the district court. Appellant made a
motion in limine to prevent the government from referring to the individuals he
asked to purchase properties on his behalf as "straw-buyers." Following a
hearing, the district court denied that motion. The district court agreed with the
government that the terms "straw-buyer" or "straw-seller" are not inherently

prejudicial because "straw-buyers" and "straw-sellers" are not necessarily

criminals. R.Vol. IV at 2-3. However, the district court did require that if those
terms were to be used by government witnesses, they must first be explained.
Id.
18

Consistent with this requirement, the government witness presented a neutral

definition of the term "straw-buyer" prior to using the term. This definition did
not equate the term "straw-buyer" with one engaging in criminal conduct or
otherwise imply that being a "straw-buyer" in some way violated the law.2
R.Vol. IX at 141-42. Instead, the government witness defined a "straw-buyer"
as one who "take[s] title to a piece of property for a short period of time and
also obtain[s] a loan on that piece of property, all for the benefit of another." Id.
at 141.

19

In this case, Appellant paid others to obtain financing for properties in which
they had little or no actual interest. For example, Ms. Million, Mr. Buratti, and
Mr. Grimes all received cash payments from Appellant to act as title holders of
certain properties when in fact they had little or no actual ownership interest in
those properties. R.Vol. VI at 37-38, 168-70; R.Vol. VII at 37-38, 46-48, 69-70,
84-85, 109, 114; R.Vol. VIII at 7, 12-15. Therefore, we cannot hold that the
district court abused its discretion by allowing the use of a neutrally defined
term which accurately described Appellant's conduct.

20

After analyzing Appellant's challenges to evidentiary rulings made by the

district court, we conclude that they do not provide grounds for reversal.

Challenges to the Sufficiency of Evidence

21

Appellant challenges the sufficiency of the evidence on which several of his

convictions were based. The standard of review for such claims is whether
there has been sufficient evidence presented to support a rational jury's finding
that defendant is guilty beyond a reasonable doubt. United States v. McIntyre,
836 F.2d 467, 471-72 (10th Cir.1987).

22

Appellant first asserts that there was insufficient evidence to support his
conviction for the crime of false statement under 18 U.S.C. 1001 with regard
to counts two and five of the indictment. Specifically, Appellant was charged
with causing Ms. Million to make false assertions of fact on HUD loan forms
by stating that she had furnished the earnest money and closing costs for the
two HUD-financed loans she obtained on Appellant's behalf in order to appear
to purchase two properties from Appellant. In response, Appellant claims that

the pertinent HUD loan forms do not contain false statements because there is
no statute or regulation requiring that the purchaser of a HUD-financed home
pay the earnest money and closing costs out of his or her own funds. Therefore,
Appellant could not have had the requisite intent to violate the law necessary to
support a conviction under 18 U.S.C. 1001. We disagree.
23

As outlined above, to support a conviction under 1001, the government must

prove that defendant knowingly and willfully made a material false statement
within the jurisdiction of a federal agency. United States v. Fitzgibbon, 619
F.2d 874, 879 (10th Cir.1980). Whether or not the law required that the
purchaser of a HUD-financed home supply the earnest money and closing costs
is irrelevant for purposes of 1001.3 What is relevant is whether Appellant was
aware of the HUD policy which required the purchaser to supply the earnest
money and closing costs out of his or her own funds and willfully and
knowingly attempted to circumvent that policy by causing Ms. Million to
portray the funds as her own on the HUD forms.

24

We conclude that the record contains sufficient evidence that Appellant knew
of this policy and caused false statements to be made in order to circumvent that
policy to support a rational jury's finding that Appellant violated 1001.
Appellant's knowledge of the pertinent HUD policy can be inferred from his
conduct, United States v. Price, 795 F.2d 61, 63 (10th Cir.1986) (intent may be
inferred from conduct), which suggested an intent to portray the funds used by
Ms. Million as her own in order to prevent the loan officers from discovering
the true purchaser of the properties.

25

The record shows that Appellant was both the true buyer and true seller of the
properties involved. R.Vol. VII at 93, 104, 110-11. Because of this, Appellant
had to find a straw-buyer since any loan officer would not permit this type of
sham purchase. R.Vol. V at 80-81, 86-87, 193-94. Consequently, Appellant
convinced Ms. Million to purchase the properties from him with money he
supplied to her.4 R.Vol. VII at 70-71, 77-79, 83. This required Ms. Million to
make false statements which she knew to be false, such as that she had paid an
earnest money deposit and closing costs with her own funds. R.Vol. VI at 20,
25-26, 58-60; R.Vol. VII at 70-71, 77-78, 83, 105-08. In fact, the evidence
shows that Appellant supplied Ms. Million with checks for the necessary
amount to cover these fees and costs. Ms. Million deposited these checks into
her own account and then wrote checks for the identical amount, thereby
falsely representing the source of the funds. R.Vol. VI at 15-18, 20, 25-26, 60.
Appellant then compensated Ms. Million for obtaining the loans on his behalf.
R.Vol. VI at 26-27, 60-61, 109; R.Vol. VII at 85. This evidence is sufficient for
a rational jury to conclude beyond a reasonable doubt that Appellant violated

18 U.S.C. 1001 as to counts two and five of the indictment.

26

Appellant next argues that the government presented insufficient evidence with
regard to counts three, four, and six of the indictment because there was no
legal requirement that a borrower reveal the identity of the true recipient of the
proceeds of a HUD or VA loan.

27

Appellant was convicted on counts three, four, and six because the jury found
that Appellant had concealed or caused to be concealed certain pertinent
information from HUD loan officers in violation of 18 U.S.C. 1001. The
essential elements of a 1001 concealment prosecution are: 1) the defendant
knowingly concealed a fact by any trick, scheme, or device; 2) the defendant
acted willfully; 3) the fact concealed was material; 4) the subject matter
involved was within the jurisdiction of a department or agency of the United
States; and 5) the defendant had a legal duty to disclose the fact concealed. 18
U.S.C. 1001.

28

To establish the 1001 concealment violation in this case, the government

must prove more than Appellant's failure to reveal a material fact. The
government must show an affirmative act by which Appellant concealed a
material fact. United States v. Shannon, 836 F.2d 1125, 1129-30 (8th Cir.), cert.
denied, 486 U.S. 1058, 108 S.Ct. 2830, 100 L.Ed.2d 930 (1988). Concealment
violations relate to the nondisclosure of statements required by statute,
government regulation, or form. United States v. Tobon-Builes, 706 F.2d 1092,
1096 (11th Cir.1983). A defendant's duty to disclose is established where a
government form required a disclosure of concealed information. United States
v. Muntain, 610 F.2d 964, 971-72 (D.C.Cir.1979).

29

The settlement statements signed by Appellant, Mr. Buratti, and Mr. Grimes at
the closings required the purchaser and the sellers to certify that the form is a
"true and accurate statement of all receipts and disbursements made on my
account or by me in this transaction." Gov.Ex. 44, 72, 126. The concealments
occurred when the defendant certified that he was paying the purported sellers
a sum of money but then received the proceeds himself. The false certifications
concealed the fact that the purported sellers, Mr. Buratti and Mr. Grimes, were
never the true owners of the properties and thus did not receive proceeds from
the real estate transactions, contrary to the certifications on the settlement
statements.

30

Appellant refers to the testimony of various witnesses who testified that the
settlement statements did not require information from the sellers about their

intended use of the transaction proceeds nor did the settlement statements
restrict distribution of the transaction proceeds in any way. This argument
misses the point.
31

The settlement statements required both buyer and seller to certify that the
amounts listed were "a true and accurate statement of all receipts and
disbursements made on my account or by me in this transaction." Both Mr.
Buratti and Mr. Grimes testified that the amounts listed on the Settlement
Statements were not true and accurate statements of the receipts and
disbursements involved in the transactions. R.Vol. VII at 177-79; R.Vol. VIII at
13, 18. Appellant received the proceeds checks rather than Mr. Buratti or Mr.
Grimes.

32

The government presented evidence showing that Appellant concealed and

caused to be concealed the true identity of the person intended to receive the
ultimate proceeds of the loan and that the named sellers held the property in
name only. Appellant asserts that because there is no legal requirement that the
person intended to receive the ultimate proceeds of the loan be identified, he
cannot be convicted of violating 18 U.S.C. 1001. However, the existence of a
legal requirement that a statement be made is irrelevant for purposes of 18
U.S.C. 1001. See United States v. Irwin, 654 F.2d 671, 678 (10th Cir.1981),
cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982) (holding
that "section 1001 prosecutions are not limited to statements which are required
to be made by law or regulation"). All that is required is that the government
establish each element of the crime. We hold that the government set forth
sufficient evidence on each element of a 1001 violation to support the jury's
finding that defendant violated 1001 beyond a reasonable doubt.

33

Appellant next claims that there was insufficient evidence to support his
conviction of equity skimming under 12 U.S.C. 1709-2. Appellant contends
that a rational trier of fact could not have found him guilty of equity skimming
beyond a reasonable doubt because there was insufficient evidence of his intent
to defraud, which is an essential element of the crime of equity skimming under
12 U.S.C. 1709-2. We hold that the record contains sufficient evidence of
Appellant's intent to defraud to support the jury's finding of guilt beyond a
reasonable doubt.

34

The government presented evidence suggesting that Appellant's belief that the
government would not pursue deficiency judgments led him to establish a sham
company in order to load the debt of past due mortgage payments onto that
company. R.Vol. V at 109-16; R.Vol. X at 34, 197. As a result, Appellant was
able to personally collect the rental payments for the properties transferred to

the sham company and convert those funds to his own use rather than paying
the mortgage payments. R.Vol. VIII at 80; R.Vol. IX at 73-77; R.Vol. X at 206.
35

Such conduct indicates an intent to defraud. Thus, we hold that a rational trier
of fact could find Appellant guilty of equity skimming beyond a reasonable
doubt.

36

We therefore find no merit in Appellant's arguments regarding the sufficiency

of the evidence used to convict him on this and other counts of the indictment.

The Alleged Breach of the Attorney-Client Privilege

37
38

Appellant claims that the district court improperly denied his motion to dismiss
the indictment due to an alleged violation of Appellant's attorney-client
privilege. We review the denial of Appellant's motion to dismiss the indictment
for an abuse of discretion. United States v. Strayer, 846 F.2d 1262, 1265 (10th
Cir.1988).

39

During the grand jury proceedings which led to Appellant's indictment, the
grand jury subpoenaed Oklahoma attorney Rosemary Rogers. The subpoena
concerned the identity of the clients Ms. Rogers represented in mortgage
foreclosure proceedings, fee arrangements, and methods of payment.
R.Supp.Vol. II at doc. 20. In response to questioning before the grand jury, Ms.
Rogers asserted Appellant's attorney-client privilege. The following day,
Appellant's wife, Paulette Kingston, also named as a defendant in the
indictment, appeared before the grand jury and waived her Fifth Amendment
rights and her attorney-client privilege. R.Supp.Vol. II at doc. 20. The district
court then granted the government's motions to compel the testimony of Ms.
Rogers and another attorney, Craig Cole, to the extent the attorney-client
privilege had been waived by Paulette Kingston. Id. Both Ms. Rogers and Mr.
Cole had consulted with Paulette Kingston and Appellant regarding their real
estate transactions. After the indictment was handed down by the grand jury,
Appellant moved the district court to dismiss the indictment due to Fifth and
Sixth Amendment violations resulting from the questioning of Appellant's
attorneys. Id. Specifically, Appellant claimed that the questioning of his
attorneys by the grand jury violated his Fifth Amendment right against
compelled self-incrimination and his Sixth Amendment right to assistance of
counsel.

40

The district court denied the motion, holding that even if Appellant's attorneyclient privilege and his Fifth and Sixth Amendment rights had been violated,

the indictment would not be dismissed because Appellant had failed to show
past prejudice or the likelihood of future prejudice. R.Supp.Vol. II at doc. 39.
We hold that the district court did not abuse its discretion in reaching this result.
41

Because it is a drastic step, dismissal of an indictment is a disfavored remedy.

United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985). Therefore,
even if Appellant can show that an important privilege or right, such as those
asserted here, was violated during the grand jury stage of a criminal
prosecution, the indictment will not be dismissed unless Appellant can show
prejudice. United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66
L.Ed.2d 564 (1981) ("absent demonstrable prejudice, or substantial threat
thereof, dismissal of the indictment is plainly inappropriate, even though the
violation may have been deliberate").

42

In this case, Appellant failed to show that he was prejudiced by the questioning
of Mr. Cole and Ms. Rogers before the grand jury in violation of his Sixth
Amendment right to assistance of counsel. Because the Sixth Amendment right
to counsel does not attach prior to indictment, In re Grand Jury Subpoenas, 906
F.2d 1485, 1493 (10th Cir.1990), Appellant cannot show that he was prejudiced
by a Sixth Amendment violation on these facts.

43

Appellant likewise failed to show prejudice resulting from alleged violations of

his Fifth Amendment right against self-incrimination which he claims occurred
when Ms. Rogers and Mr. Cole were questioned before the grand jury. The
evidence gleaned from the questioning of Ms. Rogers and Mr. Cole during the
grand jury proceedings was not presented by the government at trial. Indeed,
the only evidence presented at trial concerning Appellant's discussions with Ms.
Rogers and Mr. Cole came through Paulette Kingston's testimony on direct
examination and the government's cross-examination of Paulette Kingston,
which was properly within the scope of the direct examination.

44

Finally, Appellant has not shown that the alleged breach of the attorney-client
privilege itself resulted in prejudice. Unless prejudice is shown, even if
Appellant's attorney-client privilege were breached by the questioning of Ms.
Rogers and Mr. Cole before the grand jury,5 such a breach does not bar the
prosecution from proceeding altogether; it simply bars the prosecution from
presenting the tainted evidence at trial. United States v. Blue, 384 U.S. 251,
255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966) (illegal actions by prosecution
leading to evidence do not bar the prosecution from proceeding, rather they
require suppression of the illegally obtained evidence).6 There is no indication
in the record or in the briefs that tainted evidence was presented at trial.7

45

Because Appellant failed to show demonstrable prejudice stemming from the

violations he claims occurred when his attorneys were questioned by the grand
jury, we AFFIRM the district court's decision to deny Appellant's motion to
dismiss the indictment.

Cumulative Error
46

Finally, Appellant urges this court to reverse his convictions on all counts of
the indictment because of the cumulative nature of the errors committed by the
district court. Because we hold that the district court committed no reversible
error, we must reject this proposition.

Sentencing
47

Appellant also appears to appeal the terms of his sentence. He provides no

support for the proposition that his sentences under any or all counts of the
indictment were improper. We have found no additional grounds to question
the propriety of his sentencing. Consequently, we AFFIRM the district court's
sentencing of Appellant.

Conclusion
48

Despite Appellant's numerous allegations of error committed by the district

court, we hold that none of them have merit. We therefore AFFIRM the
convictions and sentences imposed in the proceedings before the district court.

49

AFFIRMED.

Honorable Sherman G. Finesilver, Chief Judge, United States District Court for
the District of Colorado, sitting by designation

We note that this court occasionally uses similar terms referring not to criminal
conduct but to conduct in which a party had only a nominal interest in a right or
property. See, e.g., Hackney v. Newman Memorial Hosp., Inc., 621 F.2d 1069,
1071 (10th Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 397, 66 L.Ed.2d 244
(1980); Baldridge v. Hadley, 491 F.2d 859, 864 (10th Cir.), cert. denied, 417
U.S. 910, 94 S.Ct. 2608, 41 L.Ed.2d 214 (1974); Pacific Royalty Co. v.
Williams, 227 F.2d 49, 57 (10th Cir.1955), cert. denied, 351 U.S. 951, 76 S.Ct.
847, 100 L.Ed. 1474 (1956)

The analogy offered to the district court by the government is helpful here:

Title 18 U.S.C. 1014 prohibits an individual from making a false statement to

a federally insured bank for the purpose of influencing that bank's actions. An
individual may state to the bank that he owns five condominiums or that he has
no other outstanding loans. If that is not true, then a crime has been committed.
The crime is not that the person doesn't own five other condominiums or that
he has other outstanding loans; the crime is that a false statement has been
made. R.Vol. VI at 256-57
4

As an indication of motive for this conduct, the record shows that Appellant
earned $40,000 from one of these transactions. R.Vol. VII at 104

It is unclear whether, in fact, a breach of the attorney-client privilege occurred

during the grand jury proceedings. If the evidence relating to Appellant
disclosed by Ms. Rogers and Mr. Cole before the grand jury consisted only of
revealing Appellant's identity and the source of legal fees, then defendant's
attorney-client privilege was not violated. In re Grand Jury Proceedings, 906
F.2d 1485, 1488 (10th Cir.1990). Three exceptions to this general rule apply, as
discussed in In re Grand Jury Proceedings, 906 F.2d at 1488-95. We need not
reach the issue of whether these exceptions do or do not apply because, as
stated in the text, Appellant has failed to show prejudice stemming from this
alleged violation of the attorney-client privilege. Therefore, regardless of the
actuality of the violation, there is no basis for a reversal of the district court's
actions

This also applies in cases of a breach of a defendant's attorney-client privilege.

See, e.g., United States v. Rogers, 751 F.2d 1074, 1079 (9th Cir.1985)

The only evidence presented at trial which may have compromised Appellant's
attorney-client privilege was the result of Paulette Kingston's own testimony
rather than the questioning of Appellant's attorneys before the grand jury.
Appellant did not object to Paulette Kingston's testimony at the time it was
given at trial, thus Appellant has waived his right to contest the admission of
this testimony. Young v. Taylor, 466 F.2d 1329, 1333 n. 1 (10th Cir.1972)