UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-60316
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZEB BAUCUM and MARLAN BAUCUM,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
June 4, 1998
Before WISDOM, HIGGINBOTHAM, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Brothers Zeb and Marlan Baucum were charged in a nine
count indictment with various offenses involving check kiting and
bank fraud used to prop up their business. They were charged in
count 1 with bank fraud in violation of 18 U.S.C. § 1344 and in
count 2 with making material false statements to a federally-
*
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that this opinion should not be published and is not precedent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.
insured bank in violation of 18 U.S.C. § 1014. Marlan alone was
charged in counts 3 to 6 with making additional false statements to
federally-insured banks (in violation of § 1014) and in counts 7 to
9 with wire fraud in violation of 18 U.S.C. § 1343. The defendants
were convicted on all counts. They appeal on several points, but
finding none persuasive, we affirm.
The indictments arose from the brothers’ operation of a
medical waste disposal company, River Bay Corporation (“River
Bay”). Marlan owned the company, and Zeb helped run it. For a
variety of reasons, expenses at the rapidly growing company far
exceeded income. In 1993, the brothers and their banker, Joe Moss,
president of the Bank of Raleigh, kited a series of checks among
seven different accounts at four different banks and used false
financial statements to obtain credit and loans from various banks.
Moss pled guilty to bank fraud in another proceeding and testified
against Marlan and Zeb.
At trial, the brothers did not dispute that a check
kiting scheme took place. Rather, they based their defense on the
theory that Moss had them unknowingly write bad checks and that
they did not know this constituted illegal check kiting.
Similarly, the brothers did not dispute that false financial
statements were submitted to various banks in an effort to obtain
loans. Rather, they based their defense on the theory that the
statements were submitted by other people and that they had no
knowledge of the errors.
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I. Double Jeopardy (Marlan & Zeb)
Marlan and Zeb contend for the first time on appeal that
they were sentenced to multiple prison terms for acts constituting
one offense in violation of the double jeopardy clause of the Fifth
Amendment. Specifically, they allege that their sentences for
counts 1 (§ 1344) and 2 through 6 (§ 1014) inflict multiple
punishments for the same crime.2
The double jeopardy clause prevents a defendant from
serving multiple sentences for the same offense. See United States
v. Munoz-Romo, 947 F.2d 170, 174 (5th Cir. 1991); United States v.
Bradsby, 628 F.2d 901, 905-06 (5th Cir. Unit A 1980). A defendant
may object to multiple sentences on appeal even if he failed to
object in the district court or waived his right to challenge the
underlying multiplicitous indictment. See Munoz-Romo, 947 F.2d at
174; United States v. Marroquin, 885 F.2d 1240, 1245 (5th Cir.
1989). If the multiple sentences are to be served concurrently,
however, the defendant may not raise a multiplicity claim if it was
2
Because neither Marlan nor Zeb filed a motion to dismiss
their indictment pursuant to Federal Rule of Criminal Procedure
12(b)(2) in the district court on the ground of multiplicity, they
have waived any right to challenge their convictions based on a
defective indictment. See United States v. Munoz-Romo, 947 F.2d
170, 174 (5th Cir. 1991); United States v. Marroquin, 885 F.2d
1240, 1245 (5th Cir. 1989). “Multiplicity” is charging a single
offense in more than one count. See United States v. De La Torre,
634 F.2d 792, 794 (5th Cir. 1981).
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not raised prior to trial. See id. Marlan’s and Zeb’s prison
sentences are to run concurrently, but because independent monetary
assessments were imposed on the defendants for each count of
conviction, their sentences are not concurrent for purposes of
applying a double jeopardy analysis. See id. (citing Ray v. United
States, 107 S. Ct. 2093, 2093-94 (1987)).
As this court has previously held, sentences imposed for
bank fraud under § 1344 and making false statements to a federally,
insured bank under § 1014 are not multiplicitous. See United
States v. Dupre, 117 F.3d 810, 818 (5th Cir. 1997); United States
v. Henderson, 19 F.3d 917, 926 (5th Cir. 1994). With one
exception, our sister circuits who have addressed this issue are in
agreement with this court’s conclusion. See United States v.
Fraza, 106 F.3d 1050, 1053-54 (1st Cir. 1997); United States v.
Nash, 115 F.3d 1431, 1437 (9th Cir. 1994). But see United States
v. Seda, 978 F.2d 779, 780-82 (2d Cir. 1992) (holding that § 1344
and § 1014 are multiplicitous when they arise from the same
offense). Even if there were some latitude in this court’s
caselaw, which there does not seem to be, we would comfortably
affirm these convictions because the facts from which each count in
the indictment arises are not the same. Count 1 charged both
defendants with a check kiting scheme involving four banks and
fraudulent letters of credit. Counts 2 to 6 charged that one or
both defendants made false statements to three banks, only one of
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which is a bank named in Count 1, to induce them to make loans.
Consequently, Marlan’s and Zeb’s sentences under § 1344 and § 1014
do not violate the double jeopardy clause of the Constitution.
II. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence supporting
a conviction, we view the evidence in the light most favorable to
the government. See United States v. Stephens, 779 F.2d 232, 235
(5th Cir. 1985). We resolve all conflicts in the evidence in favor
of the government, and we give the government the benefit of every
inference that might reasonably be made from the evidence. See id.
The conviction must be upheld if a reasonable trier of fact could
have found that the evidence established guilt beyond a reasonable
doubt. See United States v. Bell, 678 F.2d 547, 549 (5th Cir.
1982) (en banc).
A. Count 1 (Marlan)
Marlan challenges the sufficiency of the evidence for his
conviction for bank fraud in violation of 18 U.S.C. § 1344. A
conviction under § 1344 requires proof of three elements: (1) the
defendant executed or attempted to execute a scheme or artifice to
defraud (2) a federally, insured financial institution, and that
(3) the defendant acted knowingly. See United States v. Harvard,
103 F.3d 412, 421 (5th Cir. 1997). Marlan essentially argues that
there is no credible evidence that he knew that the letters of
credit issued on behalf of River Bay to obtain loans to conceal the
5
check kiting scheme were fraudulent, because Moss’s testimony
against him was completely untrustworthy while his testimony was
unequivocal and consistent.
Moss testified at trial that in March 1993, when a large
overdraft appeared on one of River Bay’s accounts, he told Marlan
that this was an illegal check kite. He stated that Marlan
disputed this point. According to Moss, Marlan claimed that he did
not believe their actions amounted to check kiting and that this
belief was confirmed by a former college professor. Moss also
testified that he explained to Marlan the Bank of Raleigh’s lending
limits and that, as a result of these limits, River Bay’s letters
of credit were unauthorized and fraudulent. Marlan admitted on the
stand that his undergraduate major was in finance with an emphasis
on banking and that he took courses in banking, business, and
accounting at college.
The record reveals sufficient evidence for a reasonable
trier of fact to find beyond a reasonable doubt that Marlan acted
knowingly. In addition, while Moss’s memory lapses may have
evidenced untrustworthiness, the jury was entitled to listen to all
of the evidence and then make its determination as to who told the
truth. See United States v. Davis, 752 F.2d 963, 968 (5th Cir.
1985) (stating that it is the “sole province of the jury to weigh
the evidence and the credibility of the witnesses”).
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B. Count 5 (Marlan)
Marlan claims that there was insufficient evidence to
prove that his August 17, 1992, personal financial statement was
false. The statement was relied upon by Valley Bank to make a loan
to River Bay.
The jury heard sufficient evidence regarding the
financial condition of River Bay to conclude that the company was
not worth $2 million on August 17, 1992, as indicated in Marlan’s
financial statement. In addition, the evidence showed that
Marlan’s outstanding loan obligations on August 17, 1992, far
exceeded the $4,500 indicated on his financial statement. For
instance, Marlan himself testified to numerous loans made to him
and River Bay in 1991 and 1992 that do not appear on his financial
statement. The jury could clearly conclude beyond a reasonable
doubt that Marlan’s August 17, 1992, financial statement was false.
C. Counts 7 to 9 (Marlan)
Counts 7 to 9 concern a wire fraud perpetrated upon Orix
Credit Alliance. Marlan alleges that there is insufficient
evidence to prove that he sent the May 18, 1993, fax to Orix that
contained a false River Bay financial statement upon which Orix
relied in extending credit to River Bay.
The fax cover sheet was on River Bay’s letterhead and
contained Marlan’s name as the sender. The fax cover sheet also
contained a date stamp imprinted by the fax machine showing that it
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was sent from “River Bay Corp.” The fax was sent to an Orix
salesman at a time when Orix was negotiating with Marlan for an
extension of credit, and the salesman named on the fax cover sheet
was identified at trial as the salesman who handled the River Bay
account. The false financial statement that was transmitted was
identical to the statement delivered to Peoples Bank by River Bay
in another transaction.
This evidence supports an inference that Marlan sent the
fax in question to Orix. And even assuming arguendo that a jury
could not conclude that Marlan personally sent the fax, he could
still have been found guilty as an aider and abettor based on
plentiful evidence. Aiding and abetting “is an alternative charge
in every count, whether explicit or implicit, ‘and the rule is
well-established, both in this circuit and others, that one who has
been indicted as a principal may be convicted on evidence showing
that he merely aided and abetted the commission of the offense.’”
United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980) (quoting
United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971)).
III. Counts 3 and 4 (Marlan)
Marlan challenges his convictions under counts 3 and 4 on
the ground that the indictment misdated the false financial
statement used to renew loans from Sunburst Bank. The financial
statement was actually dated January 31, 1993, but the indictment
states that it was dated March 31, 1993. As a result of the
8
indictment’s misstatement, Marlan asserts that the bank could not
have relied on the false financial statement because the loans at
issue were renewed on March 10, 1993, prior to the date on which
the indictment states the financial statement was prepared.
The government concedes that the indictment misdated the
financial statement at issue, but argues that (i) no one objected
at trial, (ii) Sunburst Bank’s loan renewal documents refer to the
January 31, 1993, financial statement, and (iii) James Conway,
Sunburst Bank’s vice-president, testified at trial that the bank
renewed the two loans at issue in part based upon the January 31,
1993, false financial statement. Because the trial proceeded as if
the indictment correctly dated the false financial statement as
January 31, 1993, no party was prejudiced and there is no error
requiring reversal.
IV. Good Faith Instruction (Marlan & Zeb)
Both Marlan and Zeb argue that the district court abused
its discretion by failing to give a requested good faith
instruction for counts 1 and 2. A district court’s refusal to give
a proposed jury instruction is reviewed for abuse of discretion.
See United States v. St. Gelais, 952 F.2d 90, 93 (5th Cir. 1992).
A district court abuses its discretion only if (1) the requested
instruction is substantively correct; (2) the requested instruction
is not substantially covered in the charge given to the jury; and
(3) it concerns an important point in the trial so that the failure
9
to give it seriously impairs the defendant’s ability to effectively
present a particular defense. See id. Under this test, a district
court does not abuse its discretion if the instructions given
fairly and adequately cover the issues presented by the case. See
id.
“[T]he failure to instruct [a jury] on good faith is not
fatal when the jury is given a detailed instruction on specific
intent and the defendant had the opportunity to argue good faith to
the jury.” Id. (quoting United States v. Rochester, 898 F.2d 971,
978 (5th Cir. 1990)); see also United States v. Luffred, 911 F.2d
1011, 1016 (5th Cir. 1990) (“When the court instructs the jury as
to the government’s burden of proving that the defendant’s conduct
was willful and then properly defines that term, it adequately
conveys the concept of the good faith defense.”). The jury charge
contained definitions of “intent,” “willful,” and “knowing” that
adequately conveyed to the jury the concept of a good faith
defense. Cf. St. Gelais, 952 F.2d at 94 (“Thus, the concept of
good faith was adequately conveyed to the jury and the district
court’s refusal to include a specific instruction is not reversible
error.”).
In addition, the district court’s decision not to include
a good faith instruction is not reversible error because counsel
for both Marlan and Zeb raised the good faith defense in their
closing arguments. Cf. id. (holding that even though “defense
10
counsel did not mention the words ‘good faith’ in his closing
argument, his remarks put the concept of good faith and innocent
motive before the jury”, rendering the district court’s refusal to
give a good faith instruction nonreversible). Counsel for both
Marlan and Zeb argued to the jury that their clients were innocent
pawns in a criminal scheme orchestrated by Moss. They both sought
to convince the jury that their clients were honest men seeking to
build a business who were manipulated by their banker, Moss, into
unknowingly performing financial transactions that were illegal.
The concept of a good faith defense was squarely presented to the
jury on behalf of both Marlan and Zeb. In sum, the district court
did not commit reversible error by refusing to include a specific
good faith instruction in the jury charge.
IV. Appointment of an Expert Witness (Zeb)
Zeb argues that the district court erred in refusing to
appoint for him an expert witness in the field of banking. We
review a district court’s refusal to appoint an expert witness for
an indigent under 18 U.S.C. § 3006A for abuse of discretion. See
United States v. Williams, 998 F.2d 258, 263 n.10 (5th Cir. 1993).
At Zeb’s request, the district court appointed for him a
second defense attorney, Jane Hicks, who was well versed in banking
and securities transactions. Zeb’s defense rested not on the
contention that a check kiting scheme did not take place, but
rather that the scheme was run by Moss without Zeb’s knowledge.
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That is to say, Zeb’s defense did not involve a technical attack
upon the falsity of the government’s alleged check kiting scheme
where an expert witness might be needed. Because Zeb was appointed
additional trial counsel knowledgeable in the area of finance and
because his defense was not based on the theory that no check
kiting scheme took place, the district court did not abuse its
discretion in refusing to appoint an expert witness for Zeb.
V. Government Exhibit G-28 (Marlan & Zeb)
Marlan and Zeb argue that Government Exhibit G-28, a
series of pie charts illustrating the seven accounts involved in
the check kiting scheme, is misleading because (1) it implies that
the defendants put the victim banks at risk of losing $20 million,
the total amount of all checks——good and bad——that moved between
the seven accounts in question, and (2) the pie chart for each
account is the same size when, in fact, the amounts deposited into
accounts controlled by Zeb were significantly less than those made
into accounts controlled by Marlan. We review an evidentiary
ruling of a district court for abuse of discretion. See United
States v. Capote-Capote, 946 F.2d 1100, 1105 (5th Cir. 1991). If
an abuse of discretion is found, we review for harmless error. See
id.
The direct examination of FBI Agent Dave Clark, the
government witness who testified regarding exhibit G-28,
specifically addressed the perceived “misleading” aspects of the
12
exhibit. Agent Clark explained (1) that the $20 million figure did
not represent the amount lost by the banks, but rather the total
amount of deposits that went into the seven accounts in question,
and (2) that although the pie charts were the same size, the actual
account balances were different as indicated by the numbers
accompanying each chart. In addition, defense counsel had ample
opportunity on cross-examination to question Agent Clark regarding
the alleged flaws in exhibit G-28. Because any perceived
misleading characteristics of exhibit G-28 were or could have been
cleared-up on direct or cross-examination, the district court did
not abuse its discretion in admitting the exhibit.
VI. Government’s Failure to Disclose Witness’s
Prior Conviction (Marlan & Zeb)
Marlan and Zeb argue that the government violated their
rights under Brady v. Maryland, 83 S. Ct. 1194 (1963), by failing
to disclose a prior criminal conviction of a government witness,
James Whitehead.
Brady and Giglio v. United States, 92 S. Ct. 763 (1972),
hold that the Constitution forbids the government from suppressing
evidence that would tend to exculpate the defendant or that would
be useful to the defense for impeaching witnesses who testify
against the accused. See United States v. Williams, 998 F.2d 258,
269 n.25 (5th Cir. 1993). Suppression of such evidence, however,
requires reversal of a defendant’s conviction only if "there is a
reasonable probability that, had the evidence been disclosed to the
13
defense, the result of the proceeding would have been different.
A ‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” See id. (quoting United States v.
Bagley, 105 S. Ct. 3375, 3383 (1985)); see also Giglio, 92 S. Ct.
at 766.
In this case, although the government failed to disclose
Whitehead’s prior conviction,3 the defense discovered the
information prior to the end of trial. The district court denied
the defendant’s motion to introduce the prior conviction under
Federal Rule of Evidence 609(b). The conviction was over ten years
old at the time of trial, and the court found that its introduction
was barred by the express language of Rule 609(b), which requires
that the proponent provide advance written notice to the adverse
party of its intent to use such evidence. The district court also
alluded to, but did not base his evidentiary ruling upon, his
belief that the probative value of the conviction was outweighed by
its prejudicial effect, thereby also precluding its admission under
Rule 609(b).
Marlan and Zeb do not challenge the district court’s
evidentiary ruling. Rather, they claim only that the government’s
failure to reveal Whitehead’s prior conviction violated their
rights under Brady. Under Brady and Giglio, the defendants were
3
The government claims that it was unaware of Whitehead’s
12-year-old prior criminal conviction for bank fraud.
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not prejudiced by the government’s failure to disclose because they
obtained Whitehead’s criminal record prior to the end of trial. In
addition, Whitehead’s prior conviction was a matter of public
record, and the defendants themselves listed Whitehead as a
possible witness and interviewed him before trial, at which time
they could have uncovered the conviction. Because of this, there
is no probability at all that the result of the proceeding would
have been different had the government disclosed the information.
The fact that the district court excluded the evidence is not
challenged, and the defense had its opportunity to introduce
Whitehead’s prior conviction which was denied.
VII. Conclusion
For the foregoing reasons, Marlan’s and Zeb’s convictions
as to all counts are AFFIRMED.
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