* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 95-60777

______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAWYER WHEELER, SR.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(94-CR-60-1)

_________________________________________________________________

July 2, 1997

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Primarily at issue is the district court’s not submitting the

issue of materiality to the jury for charged violations of 18

U.S.C. §§ 1001, 1014, and 152. We AFFIRM.

I.

Lawyer Wheeler was convicted by a jury in 1995 on three

counts: knowingly and willfully falsifying, concealing and
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covering up material facts to the Farmers Home Administration, in

violation of 18 U.S.C. § 1001; knowingly and fraudulently making a

false oath to a bankruptcy court, in violation of 18 U.S.C. § 152;

and, knowingly and willfully causing to be made a materially false

statement and report to influence the Farmers Home Administration,

in violation of 18 U.S.C. §§ 1014 and 2.

The evidence showed that Wheeler had concealed his farming

activities, assets, income, and debt payments in bankruptcy

proceedings, had made false statements to the FmHA, and, concerning

his wife’s indebtedness to the FmHA, had caused false statements to

be made to the FmHA in order to influence the FmHA to discharge

indebtedness; that the trustee in bankruptcy relied on Wheeler’s

statements “without exception”; that the trustee’s actions would

have been different but for the misrepresentations; that Wheeler

was granted complete discharge and release from his indebtedness on

30 August 1989; and that Wheeler’s release from indebtedness by the

FmHA was because the FmHA was under the impression that “[n]o

assets remain[ed] from which the FmHA could expect to collect

payment”. 

Following his conviction, Wheeler was sentenced, inter alia,

to 34 months imprisonment on each of the three counts, to be served

concurrently, and ordered to make restitution to the FmHA in the

approximate amount of $1 million and to the Bank of Webb,
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Mississippi, in the approximate amount of $148,000. His sentence

was stayed pending this appeal. 

II.

Wheeler properly raises four issues: (1) that the issue of

materiality should have been submitted to the jury; (2) that the

district court erred in altering or broadening the indictment by

allowing conviction for conduct only partially, instead of solely,

intended to defraud the FmHA; (3) that the evidence was

insufficient to prove that Wheeler’s wife, Ruby Wheeler, had

committed a criminal offense to support Wheeler’s 18 U.S.C. § 2

conviction; and (4) that the order of restitution to the Bank of

Webb was impermissible.

In addition, Wheeler raises for the first time in his reply

brief the contention that the amount of restitution to the FmHA

(approximately $1 million) was excessive. Pursuant to our usual

rule, we decline to review this untimely issue; among other things,

the Government did not have an opportunity, pursuant to the

required briefing schedule, to respond. And, there is no manifest

injustice. Kansa Reinsurance Co., Ltd. v. Cong. Mortgage Corp. of

Tx., 20 F.3d 1362, 1370 n.8 (5th Cir. 1994) (refusing to review

issue raised in reply brief absent “manifest injustice”).

A.

Wheeler contends that, for each of the three counts, the

failure to submit to the jury the issue of the materiality of his
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misstatements violates United States v. Gaudin, 115 S. Ct. 2310

(1995) (materiality a jury question for 18 U.S.C. § 1001

violation).

1.

First, as held last February, materiality is not an element of

the § 1014 violation at issue in count three. United States v.

Wells, 117 S. Ct. 921, 926-27 (1997). In Wells, however, the Court

remanded for consideration whether, despite the superfluity of the

trial judge’s finding of materiality, his statement to the jury

that 

[t]he materiality of the statement ... alleged

to be false ... is not a matter with which you

are concerned and should not be considered by

you in determining the guilt or innocence of

the defendant,

impermissibly adversely affected the jury’s “falsity” and “purpose”

findings. Wells, 117 S. Ct. at 931. In the case at hand, the

district court gave a somewhat similar instruction:

[Despite count three charging a materially

false statement] you need not consider whether

any false statement was a material false

statement.

Wells was decided after the briefing in this case. (Wheeler

raised this point for the first time at oral argument.)

Nevertheless, Wheeler had no reason to believe that the trial

court’s explanation of materiality to the jury, regardless of that

element’s inclusion in § 1014, would not adversely affect the jury.

Accordingly, he had no reason not to object to the instruction at
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trial and to brief the point on appeal. Because the issue was not

briefed on appeal, we will not address it. FED. R. APP. P.

28(a)(6); Trust Co. of La. v. N.N.P., Inc., 104 F.3d 1478, 1485

(5th Cir. 1997).

2.

With respect to counts one and two, Wheeler did not object at

trial to the court’s failure to submit the materiality issue to the

jury. Therefore, we review only for plain error: Wheeler must

show error; that is plain; and that affects substantial rights;

and, even then, we will correct the error only if it seriously

affects the fairness, integrity or public reputation of judicial

proceedings. United States v. Olano, 507 U.S. 725, 730-31 (1993).

Moreover, as the Supreme Court held recently in United States v.

Johnson, 117 S. Ct. 1544 (1997), and as this court had held earlier

in United States v. Jobe, 101 F.3d 1046 (5th Cir. 1996), we will

review for plain error a point, not erroneous at the time of trial,

if there is an intervening change in the law while appeal is

pending. Pursuant to Gaudin, as discussed supra, there was error

as to the § 1001 charge in not submitting materiality to the jury,

and this error is now “clear” or “obvious”. As to the other count,

in that 18 U.S.C. § 152(2) involves “knowingly and fraudulently

mak[ing] a false oath or account in or in relation to any case

under title 11", we will assume for purposes of this opinion that,

for conviction, the oath or account must be “material” and that,
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therefore, for purposes of the § 152 charge, there was also “error”

that is “clear” or “obvious”.

However, the error did not affect Wheeler’s substantial

rights; the outcome of the trial would have been the same had

materiality been submitted to the jury. There was substantial

evidence of materiality, including testimony that the Wheelers’

debt was released as a result of the misstatements that they had no

assets, income, or recent debt payments and that Wheeler intended

this as the result of his misstatements. 

B.

The indictment charged in count one that, in violation of §

1001, Wheeler used a scheme of material facts to mislead the FmHA

into releasing his debt. Over Wheeler’s objections, proof was

admitted concerning other debts and the jury was charged that

Wheeler was in violation of § 1001 if his “intent [was] in whole or

in part to defraud the FmHA”. Wheeler contends that such evidence

and the jury charge impermissibly altered and broadened the

indictment by allowing a conviction for fraud against other

victims. We disagree.

The indictment charged that Wheeler intended to defraud the

FmHA, and the jury was required to find that Wheeler had intended

to do so. If, in addition, it found that Wheeler also intended to

defraud others, this does not undermine the fact that Wheeler

intended the FmHA to be one of his victims, nor does it alter the
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indictment -- it charged that the intent was to defraud the FmHA,

not that the sole intent was to defraud the FmHA.

C.

Count three charged Wheeler with making, and causing to be

made,

a materially false statement and report for

the purpose of influencing the actions of the

[FmHA] on an application for settlement of

indebtedness of Ruby S. Wheeler ... in

violation of Sections 2 and 1014, Title 18.

Wheeler contends, erroneously, that he was charged with a § 2(b)

violation only, and that such a violation requires that the jury

find that Ruby Wheeler had committed a criminal offense.

There is some support for the proposition that a § 2 “aiding

and abetting” violation requires proof of the guilt of the person

aided; but, as here, under the “causing” prong of § 2, “there is no

requirement of shared intent; only the person charged need have the

criminal intent, [and] the individual whom the defendant has caused

to perform the act may be entirely innocent”. United States v.

Levy, 969 F.2d 136, 141 (5th Cir.), cert. denied, 506 U.S. 1040

(1992); but see United States v. Beuttenmuller, 29 F.3d 973 (5th

Cir. 1994)(“aiding and abetting” requires proof of underlying

crime, the commission of which was aided or perpetrator of which

was abetted). 

In any event, Wheeler was charged under § 2 and § 1014 with

“causing” the misstatements on Ruby Wheeler’s application (placing
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the information on the document and delivering it to the FmHA), not

aiding and abetting her commission of a crime. Therefore, no proof

of her wrongdoing was necessary.

D.

Wheeler’s contention that the order of restitution to the

defrauded Bank of Webb was impermissible because the indictment did

not charge fraud on that Bank likewise fails. Under the Victim and

Witness Protection Act, “[t]he court ... may order ... that the

defendant make restitution to any victim of the offense”. 18

U.S.C. § 3663 (emphasis added). Moreover, a district court may

award restitution under the Act “for the loss caused by the

specific conduct that is the basis of the offense of conviction”.

Hughey v. United States, 495 U.S. 411, 412 (1990). But, neither

the statute, nor Hughey, limits restitution to victims listed in

the indictment, so long as the additional victims were harmed as a

result of the charged conduct. See also United States v. Pepper,

51 F.3d 469, 473 (5th Cir. 1995).

There is little doubt that Wheeler’s false declaration in

bankruptcy court caused the Bank harm. His debt to the Bank was

discharged as a direct result of the bankruptcy proceedings, which

were classified “no asset” proceedings as a result of Wheeler’s

misstatements.

III.

For the foregoing reasons, the judgment is
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AFFIRMED.