PUBLISH 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 96-8780

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D. C. Docket No. 3:94-CR-5 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE CONDON, SAMUEL WILLIAM BRAWNER,

Defendants-Appellants.

______________________________________

Appeals from the United States District Court

for the Northern District of Georgia

_______________________________________

(January 8, 1998)

Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit Judge.
2

PER CURIAM:

Defendants-appellants George

Condon and Samuel William Brawner

appeal from jury convictions for making

false statements to the Small Business

Administration (“SBA”), in violation of 15

U.S.C. § 645(a), and conspiracy to do the

same. Because none of Defendants’ issues

merits reversal, we affirm.

Background
3

In 1989 Defendants became involved in

a real estate deal. Defendant Condon

(“Condon”) agreed to sell land and a building

to Defendant Brawner (“Brawner”), on

which Brawner intended to operate a

restaurant. The two were assisted in the

transaction by Condon’s attorney, Marc

Acree (“Acree”).

To finance the purchase, Brawner was

relying on a loan -- of which 85% would be

guaranteed by the SBA. In the process of
4

finalizing the involvement of the SBA,

both Condon and Brawner signed

documents and made certain

representations -- some of which later

turned out to be false. The relevant

statements included the amount to be

personally invested by Brawner (a down

payment and working capital); the amount

actually paid to Condon as a down

payment; the manner in which some of

the funds were to be used; and the terms of
5

repayment on an additional construction

loan (loaned to Brawner by a third party).

As it turned out, Brawner never

invested his own funds in the restaurant,

but instead borrowed the money necessary

both to acquire and to run the restaurant

-- contrary to the representations made

by Brawner and Condon to the SBA. The

restaurant suffered financially and was

destroyed by fire soon after it opened.

Brawner was charged with arson, making
6

false statements to the SBA (and

conspiracy), insurance fraud, and mail

fraud (related to his transmission of

documents to the SBA through the mail).

Condon was charged only with making false

statements to the SBA and conspiracy.

Defendants were tried together. Both

Defendants were found guilty of making

false statements to the SBA and of

conspiracy to defraud the SBA with these
 1

Brawner argued on appeal that the

district court erred in its determination

of the amount of restitution that should be

paid by Brawner. But, the failure to raise

this issue in the district court makes it an

improper claim in this court. FDIC v.

Verex Assurance, Inc., 3 F.3d 391, 395 (11th

Cir. 1993) (court will generally not consider

on appeal issues not raised before the

district court). Thus, we do not discuss that

issue. We also find Brawner’s sufficiency

of the evidence claim to lack merit and do

not address that issue in this opinion.

7

statements. They appeal their convictions

on several grounds.1

Both Defendants challenge the district

court’s jury instructions for failure to
8

include an instruction that materiality

was an element of the offense under 15

U.S.C. § 645(a). In addition, Condon

challenges the district court’s decision to

give no jury instruction about good faith

reliance on the advice of counsel; and he

challenges the district court’s failure to

sever his trial from Brawner’s.

Discussion
9

I. Materiality

Defendants argue that the failure to

include materiality as an element under

15 U.S.C. § 645(a) requires reversal of their

convictions for making false statements

to the SBA. Whether materiality is an

element of 15 U.S.C. § 645(a) is a question of

law, which we review de novo. See United

States v. De Castro, 113 F.3d 176, 178 (11th Cir.

1997). 
10

In United States v. Wells, 117 S.Ct. 921

(1997), we believe the Supreme Court has

effectively guided us. In Wells, the Court

addressed the issue of whether 18 U.S.C. § 1014

-- prohibiting false statements made to

federally insured banks -- included a

materiality element. The Court concluded

that materiality was no element under

section 1014. Id. at 923.

Section 1014 contains language

substantially similar to the language in
11

the statute underlying this prosecution, 15

U.S.C. § 645(a). Compare 18 U.S.C. § 1014:

Whoever knowingly makes any false

statement or report . . . for the

purpose of influencing in any way the

action of . . . any institution the

accounts of which are insured by the

Federal Deposit Insurance Corporation

. . . shall be . . . imprisoned not more

than 30 years . . . . (emphasis added);

with 15 U.S.C. § 645(a):

Whoever makes any statement

knowing it to be false, . . . for the

purpose of influencing in any way

the action of the [Small Business]

Administration . . . shall be punished

. . . by imprisonment for not more

than two years . . . . (emphasis added).
12

The language of section 1014 played a big

part in the Supreme Court’s conclusion

that materiality was no element for that

statute: 

Nowhere does [section 1014] say that

a material fact must be the subject

of the false statement or so much

as mention materiality. To the

contrary, its terms cover ‘any’

false statement that meets the

other requirements in the statute,

and the term ‘false statement’

carries no general suggestion of

influential significance.

Wells, 117 S.Ct. at 927 (footnote omitted)

(citation omitted) (emphasis added). “Nor

have respondents come close to showing
13

that at common law the term ‘false

statement’ acquired any implication of

materiality that came with it into § 1014.”

Id. The Court finished by noting that

Congress was fully able to be clear when

materiality was an element of a crime,

because other statutory sections about

false statements are explicit in their

requirement of materiality. Id. at 928 &

n.11; see also 18 U.S.C. § 1621 (prohibiting

statements under oath about “any

material matter which [one] does not
14

believe to be true”); 18 U.S.C. § 1001

(prohibiting “knowingly and willfully

falsif[ying] . . . a material fact”).

The same observations made by the

Court in Wells apply to the statute in this

case, 15 U.S.C. § 645(a). Section 645(a) also

fails to mention materiality and

expressly prohibits “any” false statements

made to the SBA. 

After Wells, we examined another

statute for a materiality element. See De
 2

Section 1010 provides that:

Whoever, for the purpose of

obtaining any loan . . . from any

person . . . with the intent that such

loan . . . shall be offered to or

accepted by the Department of

Housing and Urban Development for

insurance . . . or for the purpose of

influencing in any way the action

of such Department, makes, passes,

15

Castro, 113 F.3d 176 (determining whether

materiality is element of 18 U.S.C. § 1010).

We decided that section 1010 also includes no

materiality element. Again, that

section’s language is similar to the

language in section 645(a).2
utters, or publishes any statement,

knowing the same to be false . . .

shall be fined . . . or imprisoned . . .,

or both.

18 U.S.C. § 1010 (emphasis added).

16

Because of the similarities among 15

U.S.C. § 645(a) and 18 U.S.C. §§ 1010 and 1040,

and in the light of Wells and De Castro, we

conclude that section 645(a) does not

include the element of materiality. So, the

district court’s instruction on the

elements of the offense was not

erroneous.
17

II. Advice of Counsel Instruction

Condon argues that the district court

erred when it failed to instruct the jury

about his claim of good-faith reliance on

the advice of his counsel. We review a

district court’s refusal to give a requested

jury instruction for abuse of discretion.

United States v. Wescott, 83 F.3d 1354, 1357

(11th Cir. 1996). There was no abuse of
18

discretion in this case: no such

instruction was required.

To be entitled to a good-faith reliance

instruction, a defendant must show that (1)

he fully disclosed all material facts to his

attorney; and (2) he relied in good faith

on advice given by his attorney. See

United States v. Johnson, 730 F.2d 683, 686

(11th Cir. 1984). “[A]n instruction should not

be given if it lacks evidentiary support or

is based upon mere suspicion or
19

speculation.” United States v. Lindo, 18 F.3d

353, 356 (6th Cir. 1994) (citation omitted). 

Condon failed to introduce evidence

that he fully disclosed all material facts to

his attorney, Acree, or that he acted in

good faith reliance on the advice of Acree.

At the trial, neither Condon nor Brawner

testified. Thus, the only evidence about the

relationship between the Defendants and

Acree came from the attorney’s own

testimony.
20

Condon and Brawner came to Acree

for assistance with the sale of Condon’s

property to Brawner. Acree had never

before represented either Defendant.

Acree told Defendants that he “did not

handle SBA loans,” had no experience with

the SBA and knew nothing about SBA loans.

It was Acree’s understanding that

Brawner -- it was Brawner’s SBA loan --

was dealing with the SBA “directly” and

that Acree “was not going to be doing the
21

SBA loan.” Acree, however, agreed to

represent Condon, as the seller, in the sale

of the land: “preparing the documents

necessary . . . to be able to sell the

property,” to draft “a sales contract,” “to

find out who owned the property,” “to find

out the description of the property,” and

the like.

During this representation of Condon,

Acree was told something about the

Defendants’ dealings with the SBA. But,
22

Acree testified that he was never told that

Condon received none of the $100,000 down

payment that was required (the down

payment was represented to the SBA as

having been paid): 

I believed that Mr. Condon had at

the time of the . . . closing received

$50,000 from Samuel Brawner. I

also believed that Mr. Brawner had

gotten $100,000 or thereabouts from

[a] relative, which had -- part of it

had remained with Mr. Condon and

part of it paid back to Mr. Brawner

[for working capital as required by

the SBA and the lender].
23

Acree also testified that he -- in the

presence of Defendants -- reviewed a

letter from Brawner’s lender to Brawner

in which it was written that “Mr. Condon

had been paid $100,000 and he was to

refund back $50,000 to Mr. Brawner.”

Again, nobody mentioned to Acree that the

$100,000 had not actually been paid. That

Condon never received a down payment

and, thus, Brawner never invested -- or

put at risk -- his own funds went to the
24

heart of the misrepresentations made by

Condon to the SBA. The record shows that

material facts related to Condon’s

misrepresentations were not disclosed to

Condon’s attorney.

Condon has never contended that his

attorney actually told him that the

$100,000 misrepresentation was lawful:

Condon says he should be able to rely on

Acree’s silence on the subject. In addition

to his failing to disclose the pertinent
25

facts to Acree, Condon has failed to point

us to evidence in the record which could

support the idea that reliance on Acree’s

silence was reasonable and in good faith.

Three weak points face us. First, in

claiming that he relied on the silence of

an expert, Condon must have evidenced

that he could reasonably believe Acree to be

an expert in the area of SBA financing.

This means the record needs to show it was
26

reasonable for Condon to view Acree as

such an expert, even given Acree’s

uncontroverted testimony that both

Defendants knew that Acree did not do SBA

loans. Second, the record scarcely supports

the conclusion that Acree’s duty of

representation of Condon extended to the

SBA loan to Brawner. And, Condon’s

reliance would have been on the lawyer’s

silence about a subject which, at best, was

on the periphery of the scope of his
27

representation. Third, Condon does not

dispute that he was never paid the

necessary $100,000 down payment; yet, he

wishes to claim good faith reliance on

advice (or, more correctly, on the lack of

an advisory warning) that lying about

this simple fact would not be unlawful. We

have said before that reliance on

approving advice about such obvious

dishonesty “would clearly be outside of the

‘good faith’ prong of the expert advice
 3

Although the district court did not

instruct the jury about good faith reliance

on the advice of counsel, the court did

include an instruction on good faith in

general: “[G]ood faith is a complete defense

to the charges in the indictment since good

faith on the part of the defendant is

inconsistent with intent to defraud or

willfulness . . . .” The district court

adequately addressed the concepts of

willfulness and good faith. In closing

argument, Condon’s trial attorney

28

defense.” Johnson, 730 F.2d at 687 n.3.

Considering these points, the record will

not support that Condon’s reliance on the

lawyer’s silence was reasonable and in

good faith.3
addressed the possibility that Condon may

have relied, in good faith, on Acree’s

silence. “So, the jury essentially considered

the defense of good faith [reliance on

advice of counsel] and rejected it when it

found [Condon] guilty.” United States v.

Walker, 26 F.3d 108, 110 (11th Cir. 1994).

29

“Thus, since the record failed to show

adequate evidentiary support for the

instruction, the district court did not

abuse its discretion in refraining from

charging the jury on advice of counsel.”

United States v. Durnin, 632 F.2d 1297, 1301

(5th Cir. 1980) (“[T]here is no evidence in
 4

Condon argues that he did introduce

sufficient evidence for the instruction. He

points us to Acree’s admission that he

may have failed Condon in his duty to

prevent Condon from engaging in illegal

activity. But, this conclusory testimony

does not support the contention that

Acree was made aware of all material

facts of the transaction so that Condon

could have in good faith relied on Acree’s

failure to spot and then to inform Condon

of the illegality. That Acree now feels badly

30

the record that [defendant] either sought

the advice of counsel, personally received

advice after full disclosure, or followed the

advice in good faith.”); see also Lindo, 18 F.3d

at 357.4
about what happened does not show that he

had the duty -- given the scope of his

representation -- to do everything possible

to protect Condon from Condon’s own acts

and omissions about the SBA loan. Thus, the

evidence relied upon by Condon does not

demand an instruction on good faith

reliance on the advice of counsel.

31

III. Severance

Condon claims that his trial should have

been severed from Brawner’s, because of

the disparity in the charges against them:

only Brawner was charged with arsonrelated offenses. Condon chiefly argues
32

that Brawner’s defense to the arson

charges -- that other persons had better

motives to have set the fire -- prejudiced

Condon. We review the district court’s

refusal to sever the Defendants’ trials for

abuse of discretion. United States v. Cross,

928 F.2d 1030, 1037 (11th Cir. 1991) (citation

omitted).

Condon’s main point is based on the

closing argument by Brawner’s attorney.

The relevant portion of that argument
33

stated that “there’s going to be some

money left over from the insurance if the

building burned down to the ground; and

this money, I would suggest to you,

certainly one person it could have gone to

is Mr. Condon.” This statement came in

the middle of a discussion of several other

persons who could have burned down the

restaurant and of persons who had a

financial stake in the restaurant.

Brawner’s counsel continued by saying,
34

“I’m not suggesting -- we’re not trying to

prove that any particular person burned

that restaurant. We are just trying to

show you there’s lots of reasonable doubt

that Mr. Brawner did; and only Mr.

Brawner is on trial for that . . . .”

To be entitled to severance, and to

overcome the presumption that jointly

indicted defendants be tried together,

Condon must show actual, compelling

prejudice. See United States v. Gonzalez,
 5

Condon also argues that he was prejudiced

by the inability to introduce evidence that

he was misled by Brawner about the loans.

But in the light of the overwhelming

evidence against Condon in this case, the

absence of this evidence cannot amount

to compelling prejudice. Much of the

evidence Condon claimed was improperly

excluded went to his defense that Brawner

misled him about the contents of the

documents they both signed. Some evidence

to that fact was admitted, but the district

35

940 F.2d 1413, 1428 (11th Cir. 1991); United

States v. Castillo-Valencia, 917 F.2d 494,

498-99 (11th Cir. 1990). Condon argues that

such prejudice can be found in Brawner’s

closing argument.5

 But, limiting
court excluded testimony that Brawner had

later told people that he used the loan

money “to take trips, to pay for his wife’s

tuition, [and] to go to Georgia football

games.” None of this evidence was

exculpatory for Condon, and Condon

presented no defense that was mutually

exclusive of Brawner’s. Thus, severance

was not required. Cf. Zafiro v. United

States, 113 S.Ct. 933 (1993).

36

instructions were given about the

importance of applying evidence of the

arson charge only to Brawner. Limiting

instructions of this kind are presumed to

protect against prejudice in joint trials.

Gonzalez, 940 F.2d at 1428.
37

The cautionary instructions given by

the district court in this regard were

adequate. And, the trial was distinctly

separated into two segments: the portion

for the false-statement charges and the

portion against Brawner for arson and

mail fraud. At several points during the

trial, the court explained that evidence

admitted for the purpose of proving the

arson, or other charges pending only

against Brawner, was not to be used in
38

the consideration of Condon’s guilt or

innocence. For example, before the arson

portion of the trial the court told that jury

that:

Mr. Sam Brawner is charged in

this case with arson . . . in addition

to the conspiracy in making false

statements concerning the S.B.A.

loan.

On the other hand, Mr. George

Condon is charged only with

conspiracy to make and making

false statements to the S.B.A., and is

not charged with any of the arsonrelated charges.

Now, you have already heard and

you are about to hear further

evidence regarding the arson-
39

related charges. This evidence is

admitted solely against Mr.

Brawner and is not admitted and

should not be considered by you in

any respect with regard to Mr.

Condon. It is your duty to give

separate and personal

consideration to the case of each

individual defendant.

When you do so, you should

analyze what the evidence in the

case shows with respect to that

individual defendant, leaving out of

consideration entirely any

evidence admitted solely against the

other defendant.

In this case, the evidence of

alleged arson and insurance fraud

should not be considered at all for

any purpose against Mr. Condon.
40

At the trial’s end, the district court

further explained the proper use of the

evidence of arson in its jury

instructions:

In certain instances, evidence

may be admitted only concerning a

particular party or only for a

particular purpose and not

generally against all parties or for

all purposes.

For example, you have heard

substantial evidence regarding a

fire at the restaurant involved in

this case and the cause of this fire.

The government contends that Mr.

Brawner is responsible for this

fire. Mr. Brawner denies

responsibility.
41

Mr. Condon is not charged with

responsibility for this fire. None

of the evidence received concerning

the fire is admissible as to Mr.

Condon and should not be considered

by you in any respect in deciding

the charges against Mr. Condon.

These instructions are good enough; and

the instructions, along with the

overwhelming evidence against Condon,

demonstrate that no compelling prejudice

was suffered by Condon as a result of the

joint trial.
42

Conclusion

Because we find no reversible errors

in the trial of either Condon or Brawner,

we affirm their convictions.

AFFIRMED.