United States v. Doke

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________

No. 97-20515
_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAURICE H. DOKE; LARRY W. BASS,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
March 25, 1999

Before JOLLY and JONES, Circuit Judges, and SIM LAKE,* District
Judge.

EDITH H. JONES, Circuit Judge:

Maurice Doke and Larry Bass were convicted of conspiracy,

bank fraud, and two counts of making false statements to a bank,

all in connection with a $600,000 nominee loan on speculative real

estate. On appeal, they raise twelve issues, the most significant

of which are the sufficiency of the evidence, potential juror bias,

*
District Judge of the Southern District of Texas, sitting by
designation.
and Doke’s competence to stand trial.1 We affirm the district

court’s judgment.

I. Facts

Doke was a real estate developer in Houston. Bass was

his attorney and had negotiated several of Doke’s real estate

transactions. In 1984, one of Doke’s entities sold a 200-acre

tract of undeveloped land in north Houston to General Homes

Corporation, retaining two options to buy back small parcels of it.

The first option, pertaining to 6.028 acres, was set to expire on

August 1, 1985.

On July 11, 1985, Bass notified General Homes that Doke

would exercise his option to buy the land. The purchase price

would be nearly $788,000. On July 19, Bass requested a $600,000

loan from Champions Point National Bank (“Champions”) to pay for

the land. Champions approved the loan on July 30, and the next

day, in a simultaneous closing, General Homes sold the land to a

Doke entity, which sold it to Bass for the same price. This

prosecution arose from that loan. The government argues -- and the

jury must have believed -- that Bass told Champions he was

borrowing the money to buy the land from Doke, without revealing

Doke’s continued involvement with the land or the loan.

1
We have reviewed each of the defendants’ other arguments and
find no reversible errors.

2
 It is undisputed that Doke gave to Bass the $200,000 Bass

used for the down payment. Every six months for the next two

years, Doke sent to Bass the money Bass used to make each payment

on the loan. By late 1987, however, the Houston real estate market

and the stock market had crashed. Doke was no longer able to pay

Bass for the loan payments. Just before the February 1988 payment

was due, Bass asked Champions to restructure his loan by extending

more credit and extending the repayment terms. In the letter

making this request, Bass made no mention of Doke. Champions

denied Bass’s request, and Bass did not make the February 1988 loan

payment. Later that year, Champions foreclosed on the property.

In 1990, Champions failed and was taken over by the FDIC. Shortly

thereafter, the property was sold for a loss.

When regulators took over the bank in 1990, they were

unable to find Bass’s credit file, in which they were especially

interested because the loan was made to an insider and had not been

repaid. At the time of the loan, Bass had been on the Champions

board of directors. Doke had also been an insider because he was

a significant shareholder.

The theory of the government’s case is that Doke and Bass

failed to disclose Doke’s involvement in the loan because Champions

could not have loaned the $600,000 directly to Doke without

violating civil regulations. Under the limits of the loan-to-one-

borrower rule, see 12 U.S.C. § 84, Champions could loan Doke only

3
about $40,000 more than he had already borrowed. It could,

however, lend over $300,000 to Bass. Thus, when Bass borrowed the

$600,000, Champions participated out $300,000 of the loan to Park

45 National Bank, a “sister bank” that had several directors in

common with Champions.

Doke and Bass were indicted in July 1995. A jury trial

was held in February and March 1997. They were found guilty on all

four counts: one count of conspiracy under 18 U.S.C. § 371, one

count of bank fraud under 18 U.S.C. § 1344, and two counts of

making false statements to a financial institution under 18 U.S.C.

§ 1014.

II. Sufficiency of Evidence

Doke and Bass argue that the evidence was insufficient to

support their convictions on any count. The evidence will be

sufficient to support the jury’s verdict if “a rational jury could

have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Dupre, 117 F.3d 810, 818 (5th Cir. 1997),

cert. denied, 118 S. Ct. 857 (1998).

As mentioned above, the government argues that Doke and

Bass concealed Doke’s involvement from Champions, and that the loan

exposed Champions to the risk of being in violation of banking

regulations. Doke and Bass contend that there was not enough

evidence to show that Bass failed to disclose Doke’s involvement to

the bank. In addition, however, they argue that, even assuming

4
non-disclosure of Doke’s involvement, this nominee loan could not

have defrauded the bank because the bank received exactly the risk

it bargained for: it knew Bass’s credit-worthiness, knew what the

money would be used for, and knew what collateral would secure the

loan.

In order to prove bank fraud under 18 U.S.C. § 1344, the

government must show that Doke and Bass

knowingly executed, or attempted to execute, a
scheme to defraud a federally-chartered or -
insured financial institution. A scheme to
defraud includes any false or fraudulent
pretenses or representations intending to
deceive others in order to obtain something of
value, such as money, from the institution to
be deceived. The requisite intent to defraud
is established if the defendant acted
knowingly and with the specific intent to
deceive, ordinarily for the purpose of causing
some financial loss to another or bringing
about some financial gain to himself.

United State v. Hanson, 161 F.3d 896, 900 (5th Cir. 1998). In this

case, the crux is whether Doke and Bass had the intent to deceive

and whether the financial gains and losses in the offing

demonstrated a scheme to defraud. These are questions of fact, and

“[a]ll credibility determinations and reasonable inferences are to

be resolved in favor of the verdict.” United States v. Willey, 57

F.3d 1374, 1380 (5th Cir. 1995).

Doke and Bass argue that Bass disclosed their partnership

to the bank when he applied for the loan. They contend that

several pieces of evidence, in addition to Bass’s own testimony at

5
the trial, show that Bass made this disclosure. The loan file

presented at trial was missing the documents that would prove the

disclosure. Other documents in the file showed Doke’s continued

involvement. The files on Bass at other banks show that Bass was

not concealing anything. Doke’s payments to Bass were routed

through Champions. Two bank officers testified they knew of Doke’s

involvement. Finally, Doke had sufficient credit available at

another bank to eliminate any motive to circumvent the lending

limits at Champions.

The government, on the other hand, presented testimony

from the president of the bank, Ron Karel, who was also Bass’s loan

officer. Karel strenuously maintained that Bass did not reveal

Doke’s continued involvement with the loan. Although he knew that

Doke was involved in the original sale of the land (selling it to

Bass), Karel maintained he did not know Doke would be paying off

Bass’s loan. The loan application (not filled out by Bass but

purportedly reflective of what he had told the bank) stated that

Bass would repay the loan out of his “[p]ersonal income and sale of

property.” Furthermore, Karel testified that at the board of

directors meeting where Bass’s loan was approved, Bass commented:

“This has got to be a good deal because, after all, I’m putting in

$200,000 of my own money toward the purchase price of this land.”

Several other directors testified about the approval of the loan.

Bobby Newman testified that he had seen no indication that Doke was

6
involved with the loan. Keith Franze testified that he did not

know of Doke’s involvement and would not have voted to approve the

loan if he had known. Robert Russ testified that he “never heard”

that Doke would be the one paying off the loan, but he admitted it

had happened so long before trial he could not be sure he would

remember if he had.

Aside from the documents in Bass’s file at Champions,

which were ambiguous because of their incomplete state, this was

largely a swearing contest between Bass’s and Karel’s versions of

events. Two bank officers testified that Karel knew of Doke’s

involvement with the loan. But Karel and the other directors who

denied knowledge of Doke’s involvement were subject to extensive

cross-examination by Bass’s able trial counsel. This court is not

inclined to interfere with the jury’s decision about witnesses’

credibility when that issue was so squarely set before it.

In addition, the documents produced by both sides would

not necessarily compel a reasonable juror to abandon a

determination that Karel’s story was more credible. Because Bass’s

file was missing when the FDIC took over Champions, the government

presented a file reconstructed from a copy that had been made

surreptitiously by an investigator several weeks before the

takeover. Doke and Bass demonstrated at trial that some key

documents were missing even from the reconstructed file. They

argue that the passage of time and the suspicious disappearance of

7
the file2 show that the file could not be trusted to reflect

accurately what Bass had told Champions. In addition, they point

out that the FDIC had lost Bass’s personal files about the

transaction after it took custody of them. Yet, the government

presented evidence that, as early as 1986, when payments were still

being made on the loan, Champions’ files did not reflect Doke’s

involvement in the loan.3

Only a few weeks after the loan was made, Bass disclosed

it to his personal bank, West Belt National Bank, characterizing

his liability on the loan as contingent upon Doke’s non-payment.4

Bass and Doke argue that Bass would not disclose this to his own

bank if he was simultaneously hiding it from Champions. The

government, however, presented evidence that Bass made the

statement at a time when he was attempting to get a sizable loan

from West Belt and needed to minimize his liabilities.

Doke and Bass also argue that it was obvious to Champions

that Doke was involved in the loan because appraisals of the

2
Incidentally, the disappearance happened after Karel had left
Champions.
3
An examiner for the Office of the Comptroller of the Currency
reviewed the Bass loan in 1986. She testified that she would have
included in her report any evidence that Doke had been involved
with the loan had she found any in the files. Another OCC examiner
testified that in 1987 he found the Bass loan was substandard,
because of Bass’s questionable ability to repay, but saw no
indication that it was a nominee loan.
4
Bass’s subsequent disclosures to West Belt characterized his
liability on the Champions loan as direct.

8
property were directed to Doke’s attention. But these could be

easily explained by Doke’s role in the transaction as the

intermediary between General Homes and Bass. Later appraisals

could be attributed to Doke’s continued involvement in the general

development of the land around the property. Until July 1986, Doke

retained an option to purchase back the second parcel of land

involved in his original sale to General Homes. Thus, the letter

from a Doke entity in 1985 asking Champions to release its lien on

a sliver of the property securing the loan to accommodate a

realignment of planned streets could be explained by Doke’s

interest in the overall development. Neither the appraisals

directed to Doke nor the letter was sufficient to tell Champions

directly what Doke’s interest in the property, much less the loan,

was.

Doke and Bass argue that Doke’s payments to Bass revealed

no intent to deceive. Some of Doke’s payments to Bass were drawn

on Doke’s accounts at Champions, meaning Champions processed the

checks and theoretically could have seen notes on the checks

referencing the location of the property. Part of one payment was

made as a cashier’s check drawn on Champions, signed by Karel, and

payable to Bass. (The cashier’s check did not note the purpose of

the payment.) The jury could have inferred, however, that Doke and

Bass, through their experience and insider positions, knew that

Champions would not likely connect Bass’s loan payments (which were

9
always made from accounts at other banks) with the checks Champions

was clearing from Doke’s entities.

The situation with the original down payment was less

clear, since it recognizably came from a Doke entity (though it was

drawn on an account at an out-of-state bank). The check was

deposited into the title company’s account at Champions. Because

Champions credited the title company’s account before the check

cleared, a bank officer must have seen the check to authorize

credit against uncollected funds. This could give rise to the

inference that a bank officer knew that the down payment to the

title company involved with the loan came from a Doke entity. This

inference, however, would not necessarily require a reasonable

juror to conclude that Doke and Bass were not concealing Doke’s

involvement. See United States v. Bell, 678 F.2d 547, 549 (5th

Cir. 1982) (en banc) (“It is not necessary that the evidence

exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt.”), aff’d

on other grounds, 462 U.S. 356 (1983).

Finally, Doke and Bass argue that Doke’s extensive credit

line at another bank eliminated any motive to connive at getting a

loan through Champions. This argument, however, can cut both ways.

As a large shareholder and a director, Doke and Bass each had an

interest in the success of Champions. Bass testified that he went

to Champions because he wanted to help bring it business. The jury

10
could have inferred that their motivation was not simply to obtain

credit for Doke, but to obtain it at Champions, where Doke could

not have borrowed even $40,000.

In sum, taken in the light most favorable to the verdict,

there was sufficient evidence for a reasonable juror to have found

beyond a reasonable doubt that Doke and Bass intended to deceive

Champions about Doke’s continued involvement with the loan.

Separate from the issue of how much they concealed from

the bank, Doke and Bass argue that the economic validity of the

transaction underlying the loan precluded it from being fraudulent.

They rely primarily on three cases discussing economic validity:

United States v. Beuttenmuller, 29 F.3d 973 (5th Cir. 1994),

overruled in part on other grounds by United States v. Gaudin, 515

U.S. 506 (1995); United States v. Schnitzer, 145 F.3d 721 (5th Cir.

1998); and United States v. Baker, 61 F.3d 317 (5th Cir. 1995).

We agree that the transaction in this case had economic

substance and was not a sham. We also agree that a nominee loan is

not illegal where there is no evidence that the transaction is

concealed from the bank, and where the loan documents “make the

relationship between the various transactions very clear.” United

States v. Grossman, 117 F.3d 255, 260-61 (5th Cir. 1997). See also

United States v. Willis, 997 F.2d 407, 410 n.2 (8th Cir. 1993).

This court has held, however, that fraudulent actions, such as

concealing the identity of a silent partner in violation of banking

11
regulations, contravene § 1344. See United States v. Henderson, 19

F.3d 917, 923 (5th Cir. 1994). Further, the creditworthiness of

the borrower is no defense against a § 1344 bank fraud conviction.

See United States v. Saks, 964 F.2d 1514, 1519 (5th Cir. 1992);

United States v. Parekh, 926 F.2d 402 (5th Cir. 1991).

The type of proof of fraud is what distinguishes the

cases upholding bank fraud convictions from Beuttenmuller, Baker,

and Schnitzer, which overturned such convictions. In the latter

cases, the government could not prove that the defendants knew and

concealed material information from the banks, so it attempted to

draw an inference of fraudulent intent by proving the transactions

were economic shams. This court disagreed with the government’s

characterization of the deals and necessarily found insufficient

proof of intent to defraud. In cases like Henderson, Saks, Parekh

-- and this one -- there was proof of intent to defraud

irrespective of the economic substance of the transactions. See

also United States v. Hanson, 161 F.3d 896, 900-01 (5th Cir. 1998).

Because Doke’s and Bass’s failure to disclose Doke’s involvement

with the loan put the bank in violation of banking regulations, and

a reasonable juror could have concluded beyond a reasonable doubt

that they did fail to disclose Doke’s involvement, the evidence was

sufficient to support their convictions for bank fraud.

Doke and Bass’s arguments about the false statement and

conspiracy counts are not clearly differentiated from their

12
arguments about bank fraud, with the exception of the second false

statement count. That count related to Bass’s February 1988 letter

asking for a restructuring of his loan. Doke and Bass argue that

the last proof of Doke’s involvement with the loan was his

September 1987 payment to Bass; when Bass subsequently requested

restructuring of the loan, he was acting only on his own behalf.

This defense contradicts the theory behind Bass’s own

testimony at trial, which was that his partnership with Doke was

disclosed all along. What happened to this alleged partnership in

early 1988? In fact, Bass testified at trial that he had “gone to

Mr. Doke” about the refinancing of the loan. The jury was entitled

to infer that Bass’s payments to Champions stopped when Doke’s

payments to him stopped, and that this occurred because they were

still both involved in repaying the loan. When Bass requested

essentially a new loan in 1988, he was again failing to disclose

his nominee status and Doke’s involvement behind the scenes.

Finally, because there was sufficient evidence to

conclude that Doke and Bass possessed the requisite intent to

defraud, it follows that there was sufficient evidence for the jury

to infer that they had the intent to conspire and agreed to engage

in the fraudulent transaction.

III. Juror Bias

Bass and Doke argue that the district court erred in not

excluding four veniremembers for cause and in not holding a hearing

13
on the impartiality of three jurors who were discovered after trial

to have possibly lied on their voir dire questionnaires.

Their first contention is meritless; the court did not

abuse its discretion in deciding that these jurors’ answers to

questions about possible bias revealed no inability to judge the

case fairly.

Appellants’ additional contention fares no better. One

juror responded “No” to the juror questionnaire question, “Have you

been charged criminally, other than a traffic ticket?” In fact, he

had been charged with misdemeanor assault in 1993, and convicted of

misdemeanor driving while intoxicated in 1982 and 1988. Bass

asserted that two other jurors had failed to disclose their prior

involvement in civil lawsuits wholly unrelated to the parties in

this case. The district court denied Bass’s motion for new trial

and belated motion for a hearing.

The district court’s decisions are reviewed for abuse of

discretion. See United States v. Wilson, 116 F.3d 1066, 1087 (5th

Cir. 1997), rev’d as to another defendant on other grounds, United

States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc).

To obtain a new trial for juror bias, this circuit

requires a party to meet the test of the plurality opinion in

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556,

104 S. Ct. 845, 850 (1984): “a party must first demonstrate that a

juror failed to answer honestly a material question on voir dire,

14
and then further show that a correct response would have provided

a valid basis for a challenge for cause.” See Wilson, 116 F.3d at

1086. Without more, these jurors’ failures to disclose the

information asserted by appellants does not raise a material

question concerning actual or implied bias that would necessitate

a removal for cause. Cf. United States v. Scott, 854 F.2d 697, 700

(5th Cir. 1988). Because the jurors’ omissions of immaterial

information would not have come close to furnishing grounds for

their removal, the court did not abuse its discretion by denying a

hearing. Cf. United States v. Boney, 977 F.2d 624, 634 (D.C. Cir.

1992) (allegation that juror was a felon, statutorily disqualified

from jury service, and that he concealed his status during voir

dire, required remand for hearing).

IV. Doke’s Competence to Stand Trial

Doke argues that the district court erred when it found

he was competent to stand trial. This court will not reverse the

district court’s determination unless it is “clearly arbitrary or

unwarranted” -- a species of clear error review -- but this mixed

question of fact and law requires us to “re-analyze the facts and

take a hard look at the trial judge’s ultimate conclusion.” United

States v. Birdsell, 775 F.2d 645, 648 (5th Cir. 1985) (internal

quotation omitted). A defendant is incompetent if he suffers from

“a mental disease or defect rendering him ... unable to understand

15
the nature and consequences of the proceedings against him or to

assist properly in his defense.” 18 U.S.C. § 4241(d).

The district court held a competency hearing in March

1996. The government presented a psychological evaluation from Dr.

Jerome Brown, a clinical psychologist who had interviewed and

administered tests to Doke on two occasions the prior month. Doke

presented two expert witnesses: neuropsychologist Dr. Larry

Pollock, who had evaluated Doke in January 1993 and twice since

November 1995, and Dr. Ronnie Pollard, a psychologist who had

regular contact with Doke as an intern at the hospital where Doke

was hospitalized for three months in 1992. Doke also presented two

lay witnesses: his daughter and a friend of his who had been

appointed his medical guardian when he was released from the

hospital.

Doke does not press any inability to “understand the

nature and consequences of the proceedings against him.” Indeed,

Dr. Pollock said that Doke had “a fairly good understanding of what

the charges are”; and Dr. Brown reported that Doke told him his

attorney had told him he could receive “from one and a half to five

years” if found guilty.

Instead, Doke claims that he was unable to assist

properly in his defense because of memory lapses about the period

of the loan transactions. At the competency hearing, Doke argued

that these memory lapses were the effect of a failed suicide

16
attempt by drug overdose and carbon monoxide poisoning that left

him unconscious for several days and hospitalized for three months

in 1992.5 Dr. Pollock testified that Doke had a significant memory

impairment that made it “very difficult for him to retrieve” stored

memories. Although he was not surprised to hear that Doke was able

to discuss many elements of the case after being shown old

documents related to it, Dr. Pollock said that it would be

impossible to tell whether the details in Doke’s descriptions were

the result of genuine cuing or jogging of his memory, or the result

of confabulation, where a patient attempts, unconsciously or not,

to fill in memory gaps with plausible scenarios and later perceives

those reconstructed memories as true ones. Doke’s daughter and

medical guardian gave anecdotal examples of the deterioration they

had seen in Doke’s mental abilities, including difficulties he had

recounting some aspects of his personal history and his various

problems as a taxi driver.6 In summation at the competency

hearing, Doke’s counsel explained that Doke was unable to assist in

his defense because “he draws an absolute blank” on what agreements

he made with Bass about the loans in 1985 and 1986. He also argued

that this compromised Doke’s ability to testify at trial, where his

5
There were also some indications of a series of minor strokes
preceding the suicide attempt, but the suicide attempt was
described as the major factor in Doke’s memory loss.
6
Doke was unable to learn how to use the computer to receive
radio dispatches in his taxicab, he had gotten in several accidents
(though some were because of lack of sleep), and he sometimes got
lost, even attempting to use a map.

17
frequent but truthful claims not to remember things would make him

appear evasive.

On behalf of the government, Dr. Brown concluded in his

evaluation that Doke had “some variability in his memory

functioning,” but “his overall ability to utilize his memory

functions is still adequate and consistent with what might be

expected from someone at his intellectual level.” (All sides

agreed that Doke was of above-average intelligence.) Dr. Brown

said Doke had no difficulties in communicating, and he could

understand questions and provide useful answers. Doke’s deficits

were very specific, leaving most of his mental functions reasonably

intact and making it possible “to some extent” to “circumvent[]”

the deficits. As for the events related to the loan, Dr. Brown

concluded that while Doke “has trouble remembering many details of

the actions and transactions,” “he also remembers a great deal, is

aware of his intentions and plans concerning this business at that

time, and can even be reminded and sometimes remember details if he

is provided with helpful information.”

At the conclusion of the competency hearing, the district

court concluded that Doke was competent to stand trial. Although

he had obviously suffered some diminution of his abilities, his

considerable intelligence before that meant he was not much worse

off than many average defendants. This was especially true given

that Doke was fifty-seven years old and being asked to remember the

18
details of transactions from ten years earlier. The district court

also noted that Doke had been able to defend himself successfully

against some of the suits arising from his traffic accidents.

This court has previously held that amnesia by itself

does not render a defendant incompetent; rather, the “circumstances

of each individual case” must be considered. See United States v.

Swanson, 572 F.2d 523, 526 (5th Cir. 1978). Several factors

considered in Swanson apply here. Doke was not precluded from

taking the stand on matters within his memory by “some other

pathological or psychological condition.” Id. Doke would not

benefit from a continuance because his long-term memory was not

improving. Id. Information in documents held by the prosecution

could help fill in some of the gaps in Doke’s memory. Id. at 527.

Furthermore, it is possible that restoration of Doke’s memory would

not “materially aid his defense.” Id.

In the context of this case, it is particularly

noteworthy that someone with no mental defects very likely would

have had reduced memory of ten-year-old financial transactions.

It is not dispositive that more defense experts examined

Doke more often than did Dr. Brown7 -- or that Dr. Pollock

7
Doke’s contention that Dr. Brown’s report was entitled to
less weight because it was not delivered from the witness stand is
false. Dr. Brown was available in the court room, and no defense
attorney chose to cross-examine him. See United States v.
Birdsell, 775 F.2d 645, 651 (5th Cir. 1985) (duty to cross-examine
and point out weaknesses in expert testimony is counsel’s).

19
specialized in neuropsychology. Sometimes this court has found

such reasons to support believing one side’s experts. Yet those

cases involved greater disparities in evaluation, where an all-or-

nothing choice had to be made between experts.8 Here, Dr. Pollard

and Dr. Brown each acknowledged the general consistency of their

evaluations. The difference in their conclusions is based on

different perceptions of whether the defendant’s memory of the

alleged crime is crucial to legal competence.

After a hard look at the facts, this court does not

believe the district court’s finding of competence was “clearly

arbitrary and unwarranted.”

V. Conclusion

There was sufficient evidence to support the guilty

verdicts on each count. There was insufficient evidence of juror

bias to require a new trial or a hearing. Doke was competent to

stand trial. Appellants’ other arguments lack merit. As a result,

the judgment and sentences of the district court are AFFIRMED.

8
In United States v. Dockins, 986 F.2d 888 (5th Cir. 1993),
the defense expert concluded after two evaluations that the
defendant had an I.Q. of 49 and bona fide memory loss. The
governments experts concluded after fourteen interviews that the
defendant’s I.Q. was around 80 and he was faking memory loss.
Similarly, in Birdsell, the defense and government experts
disagreed about whether the defendant was faking his mental
condition. See 775 F.2d at 649-50.

20