* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 25 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DONALD JON HOGOBOOM,

Petitioner-Appellant,

v. UNITED STATES OF AMERICA,

Respondent-Appellee. No. 96-1262 (D.C. No. 96-N-494) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and BRISCOE, Circuit Jud ges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Donald Jon Hogoboom appeals from the district court ’s denial of his petition for a writ of error coram nobis, through w hich he seeks vacation of two-2-

convictions for improper banking practices. Hogobo om contends this court’s reversal of the convictions of two other individual s involved in his fraudulent schemes mandates the vacation of his convictions as well. Reviewing the district court’s denial of the writ de novo, see Estate of McKinney ex rel. McKinney v. United States , 71 F.3d 779, 781 (9th Cir. 1995), we agree with t he district court that Hogoboom’s argument for relief is a non sequit ur and affirm. Hogoboom was a director of two Colorado banks. In 1991, he pleaded guilty to one count of violating 18 U.S.C. § 1005 a nd one count of violating 18 U.S.C. § 656. The essence of his § 1005 violati on was that he issued a $500,000 letter of credit that was not properly aut horized by the bank and was not recorded in the bank’s records. His § 656 violatio n was based on his causing a $110,000 loan to be issued to a straw borrower--the nominal borrower who applies for a loan, but neither receives nor intend s to repay the proceeds, which go to a third party--and then directing $66,500 of this loan to his personal account. He has served his sentence, which include d two years’ imprisonment followed by three years’ probation. Hogoboom's filing of this petition was prompted by our reversal of the convictions of two straw borrowers who were involve d in another of Hogoboom’s improper letter-of-credit schemes. See United States v. Rothhammer , 64 F.3d 554 (10th Cir. 1995). The Rothhammerdefendants had been convicted under1 In the letter-of-credit scheme for which he was con victed under § 1005,

Hogoboom would have tried to cover his tracks throu gh use of straw borrowers “[i]f necessary,” but apparently it was not necessa ry. Appellant’s Br. at 4. -3- 18 U.S.C. § 1014, which requires proof that “the de fendant knowingly made a false statement to a bank, which was false as to a material fact, for the purpose of influencing the bank’s action.” 64 F.3d at 557. W e held that the defendants did not make false statements by signing promissory not es to obtain loans and falsely promising to repay the loans, because the promise t o repay merely created a legal liability that “did not amount to a factual asserti on and thus cannot be construed as a false statement.” Id. at 557-58. Hogoboom contends our interpretation of § 1014 in R othhammerrequires vacation of his convictions because both cases “inv olved the same overall scheme or transaction: the use of straw borrowers.” Appe llant’s Br. at 10. He analogizes his situation to cases in which courts have granted collateral relief vacating convictions because of subsequent Supreme Court dec isions changing the elements of the crimes underlying the convictions. See, e.g. , United States v. Shelton , 848 F.2d 1485 (10th Cir. 1988) (en banc). Howeve r, even though both his case and Rothhammermay have involved straw borrowers--and that may be stretching the facts of this case 1 --that has no bearing on whether Hogoboom’s convictions remain valid because Rothhammerdid not redefine the elements of his crimes. A conviction under § 656 requires the government to prove the-4-

defendant is an officer, director or employee of a federally connected bank and that he or she willfully misapplied bank funds with intent to defraud the bank. See § 656; United States v. Evans , 42 F.3d 586, 589 (10th Cir. 1994). A § 1005 conviction requires proof that the defendant made afalse entry in the bank’s records with intent to defraud the bank or public o fficers or, if the defendant is a bank officer, director or employee, issued a credit of the bank without authorization. See § 1005; Evans , 42 F.3d at 592; United States v. Chaney , 964 F.2d 437, 448-49 (5th Cir. 1992). Thus, neithe r of Hogoboom’s convictions hinged on his making a false statement in general, or more importantly for Rothhammerto be relevant, a false promise to pay in a promis sory note. Because we conclude that Rothhammerdid not affect the elements of the crimes of which he was convicted, we also reject his contention that his guilty pleas were not knowing and voluntary. This court has previously granted Hogoboom’s motion for an extension of time to file a reply brief; his alternative motion to strike the government’s answer brief and appendix is therefore DENIED as moot. Th e judgment of the district court is AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge