United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 26, 2003
Charles R. Fulbruge III
Clerk
No. 02-21256
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUSSEIN MOHAMAD KHALIL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-11
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Hussein Mohamad Khalil appeals his conviction for bank
fraud, a violation of 18 U.S.C. § 1344. Khalil is serving a
sentence of forty-one months’ imprisonment and five years’
supervised release.
Khalil contends that the evidence was not sufficient to
establish that he had the specific intent to defraud Bank of
America. He contends that any intent to defraud was directed
toward Datek Securities (“Datek”). He asserts that Bank of
*
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that this opinion should not be published and is not precedent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.
No. 02-21256
-2-
America faced no risk of financial loss and that any risk
exposure borne by Bank of America was caused by the cooperative
operation of Bank of America, the FBI, and Datek.
This court views the evidence in the light most favorable to
the Government and determines whether “‘a rational trier of fact
could have found the essential elements of the offense beyond a
reasonable doubt.’” United States v. McCauley, 253 F.3d 815, 818
(5th Cir. 2001). The Government had to prove that Khalil
knowingly executed or attempted to execute a scheme or artifice
to defraud a financial institution or to obtain property owned
by, or under the custody or control of, a financial institution
by means of false or fraudulent pretenses. McCauley, 253 F.3d at
819. The Government had to show that Khalil placed a financial
institution that was insured by the Federal Deposit Insurance
Corporation (“FDIC”) at risk of civil liability. United States
v. Odiodio, 244 F.3d 398, 401 (5th Cir. 2001).
The evidence established that Khalil acted knowingly and
with specific intent to deceive Bank of America to obtain
property under its control. The Government proved that Khalil
attempted to deceive Bank of America by representing himself to
be Lewis Sherwood Elliot and by opening a business account for
the receipt of funds allegedly transferred from Sherwood’s Datek
account. The Government proved that Khalil placed Bank of
America at a risk of financial loss and that Bank of America was
No. 02-21256
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FDIC-insured. The evidence was sufficient. McCauley, 253 F.3d
at 819; Odiodio, 244 F.3d at 401.
Khalil asserts that the district court abused its discretion
by refusing to instruct the jury that a conviction required proof
that Khalil acted with intent to victimize or injure Bank of
America by exposing it to actual or potential loss. Khalil
argues that if the jury had been so instructed and had found that
he intended to harm Datek instead of Bank of America, the jury
would have had to acquit.
This court reviews the refusal to provide a requested
instruction for an abuse of discretion. United States v. Morrow,
177 F.3d 272, 292 (5th Cir. 1999). A reversal will be granted
“only if the requested jury instruction ‘(1) was a substantially
correct statement of the law, (2) was not substantially covered
in the charge as a whole, and (3) concerned an important point in
the trial, the omission of which seriously impaired the
defendant’s ability to present an effective defense.’” Id.
The charge included that the jury had to find that Khalil
“acted with specific intent to defraud Bank of America” and
“placed Bank of America at risk of civil liability or financial
loss.” The district court’s instructions correctly stated the
elements of bank fraud. See McCauley, 253 F.3d at 819; Odiodio,
244 F.3d at 401. The district court did not abuse its
discretion. See Morrow, 177 F.3d at 292. The district court’s
judgment is AFFIRMED.