UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-1775
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED FRED BARAKETT, a/k/a
Robert John Koch and John Doe,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(June 25, 1993)
Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit
Judges.
POLITZ, Chief Judge:
Alfred Barakett appeals convictions on four counts of bank
fraud in violation of 18 U.S.C. § 1344, three counts of interstate
transportation of forged securities under 18 U.S.C. § 2314, and two
counts of entering a bank with intent to commit a felony in
violation of 18 U.S.C. § 2113. He also appeals the sentence
imposed. Finding no error, we affirm.
Background
In February 1985, Barakett met Lonnie Kay Yeager in Kansas
City, Missouri, after obtaining her name through an organization
called Parents Without Partners. He introduced himself as Daniel
Joseph Merritt. The two met regularly for three weeks, after which
Barakett disappeared. The following January, Barakett introduced
himself to Janet Butler in Dallas, Texas, using the name Harold
Robert Prince. Butler operated a business called Corporate Child
Centers (CCC). Barakett gained Butler's confidence, promising
marriage and financial security. Butler accepted Barakett's offer
of assistance with the CCC checkbook. A few days later, Barakett
accompanied Butler to the Allied American Bank in Dallas, where
she, at his direction, consolidated her personal and business
accounts and deposited therein an $8,750 check drawn on
Ms. Yeager's account at the First Bank of Gladstone, Missouri.
Butler gave Barakett $5,800 cash from the deposit transaction.
Barakett then disappeared. First Bank of Gladstone refused payment
on the deposited check, identifying it as a forgery, and Allied
American deducted the $5,800 from personal funds which Butler had
deposited in the CCC account.
Within the next 11 months, Barakett traveled from coast to
coast, perpetrating similar schemes, using checks drawn on the CCC
account. Each time, after gaining the confidence of a female
victim under an assumed name and becoming involved in her finances,
he would persuade her to deposit a forged CCC check, receive cash
from the transaction, and then disappear. The evidence reflects
2
the following scenario:
Month Cash Received Location
Jan. $3,550 Albequerque, NM
March 2,950 Reading, PA
April 5,885 Houston, TX
May 6,850 Greenville, SC
May 6,750 Grant's Pass, OR
July 9,650 Louisville, KY
July 9,850 Shepherdsville, KY
August 9,540 Bakersfield, CA
Nov. 4,850 Boise, ID
Butler had closed the CCC account immediately upon learning of the
first forgery; Allied American Bank refused payment on all CCC
checks passed by Barakett. The banks into which Barakett procured
deposit of the CCC checks generally deducted the "cash back"
amounts from the victims' accounts. On at least two occasions,
Barakett's victim had insufficient funds on deposit to cover the
shortfall.1
In January 1990, Barakett's operations continued in Salt Lake
City, Utah, when, calling himself John Mark Fields, he contacted
JoAnn Loveless, whom he had met for the first time in September
1989. After a brief relationship with Loveless, Barakett
disappeared. The following month in Dallas, Barakett introduced
himself to Imogene Copp as Robert Crow, Jr. He accompanied Copp to
a branch office of Bank One and persuaded her, over warnings from
bank officers, to deposit a $9,440 check payable to her, drawn on
Loveless's Salt Lake City account. Barakett disappeared after
receiving $4,400 from this transaction. Loveless wisely had closed
1
On these occasions, the victim repaid the bank with funds
from other sources.
3
her account shortly after Barakett's disappearance; the Salt Lake
City bank refused payment on the forged check. Bank One charged
the shortfall against Copp's account.
In March 1990, Barbara McGuire, acting at Barakett's
direction, deposited a $9,250 check drawn on Copp's Bank One
account to her California bank account. Barakett received $4,750
cash back from that transaction before disappearing. Bank One
refused payment on the forged check.
The grand jury returned a nine-count indictment against
Barakett. Counts one and two charged bank fraud perpetrated on
Allied American Bank in violation of 18 U.S.C. § 1344, arising from
his use of the Yeager check and CCC checks, respectively. Counts
three and four charged bank fraud perpetrated on Bank One, arising
from his use of the Loveless check and the Copp check,
respectively. Counts five through seven charged interstate
transportation of forged securities in violation of 18 U.S.C.
§ 2314, arising from use of a CCC check in Idaho, the Loveless
check in Dallas, and the Copp check in California. Finally, counts
eight and nine charged entry of a bank with intent to commit a
felony affecting such bank in violation of 18 U.S.C. § 2113,
arising from his entering Allied American Bank with Butler and Bank
One with Copp.
A jury found Barakett guilty on all counts. He was sentenced
to 240 months imprisonment on count eight and five years probation
4
on counts one, two, and five.2 As to counts three, four, six,
seven, and nine, under the Guidelines the court imposed 57-month
prison terms to run concurrently with the sentence imposed on count
eight, and three-year supervised release terms to run concurrently
with the probation terms imposed on counts one, two, and five.3
The district court also ordered payment of restitution to Copp and
Davis, and the statutory assessments. Barakett timely appealed.
Analysis
1. Limitations Period
Barakett first claims that the five-year limitations period of
18 U.S.C. § 3282 barred his prosecution on count eight of the
indictment. In United States v. Arky,4 we held that failure to
assert the statute of limitations at trial waives that affirmative
defense. Barakett's conceded failure to do so in the case at bar
disposes of this issue.
2
The Sentencing Guidelines did not apply to the offenses
charged in these counts, committed prior to November 1, 1987.
3
Under the Sentencing Guidelines, the district court
applied U.S.S.G. § 2F1.1 to arrive at an offense level of 17. In
view of the amount of planning, number of victims, and amounts of
money involved in Barakett's conduct, however, the district court
assessed a six-point offense level increase. Finding Barakett's
criminal history inadequately reflected by a criminal history score
of zero, the district court likewise opted to sentence him under
criminal history category II, resulting in a guideline sentencing
range of 51-63 months imprisonment.
4
938 F.2d 579 (5th Cir. 1991), cert. denied, 112 S.Ct.
1268 (1992).
5
2. Sufficiency of the Evidence
Barakett next challenges the sufficiency of the evidence
supporting his bank fraud convictions. Mindful that weight and
credibility assessments lie within the exclusive province of the
jury,5 in considering this claim we must view the evidence and draw
all reasonable inferences favorable to the verdict.6 If the
evidence, so viewed, would permit a rational jury to find all
elements of the crime beyond a reasonable doubt, we must affirm the
conviction.7 The evidence need not, however, exclude all
hypotheses of innocence.8 In order to convict Barakett under
18 U.S.C. § 1344, the government had to prove his knowing execution
of or attempt to execute "a scheme or artifice -- (1) to defraud a
financial institution; or (2) to obtain any of the moneys, funds,
credits, assets, securities, or other property owned by, or under
the custody or control of, a financial institution, by means of
false or fraudulent pretenses, representations or promises."9
5
United States v. Garner, 581 F.2d 481 (5th Cir. 1978).
6
Glasser v. United States, 315 U.S. 60 (1942).
7
Jackson v. Virginia, 443 U.S. 307 (1979).
8
E.g., United States v. Heath, 970 F.2d 1397 (5th Cir.
1992), cert. denied, 113 S.Ct. 1643 (1993).
9
When Barakett committed the offenses charged in counts
one and two of the indictment, 18 U.S.C. § 1344 punished knowing
execution of schemes or artifices to defraud or obtain property
through false promises, only from federally insured or chartered
institutions. In 1989, Congress substantially increased the
penalties for bank fraud and amended the statute so that it reads
6
Barakett essentially contends that he intended to defraud only
his female victims and thus did not execute schemes to defraud any
financial institution.10 In support of this assertion, he claims
that the institutions suffered at worst purely theoretical
potential losses because they could and did recover from the
victims. This misperceives the law.
The term "scheme to defraud" does not admit of easy and
precise definition,11 but includes "fraudulent pretenses or
representations intended to deceive others, in order to obtain
money from the victim institution."12 While section 1344(1)
as above. Financial Institutions Reform, Recovery, and Enforcement
Act, Pub.L. 101-73, § 961(k), 103 Stat. 500 (1989). Those
amendments, however, do not affect our sufficiency analysis in the
instant case.
10
Barakett also argues that he did not, by causing his
female victims to present forged checks, use "false or fraudulent
pretenses, representations, or promises" as required by section
1344(2). The indictment against Barakett charged violation of and
the jury instructions permitted conviction under either portion of
section 1344. The evidence fully supports Barakett's guilt under
section 1344(1); we therefore need not consider Barakett's
contention that the evidence could not support a conviction under
section 1344(2). Compare United States v. Medeles, 916 F.2d 195
(5th Cir. 1990) (where indictment alleged only violation of former
section 1344(a)(2) and court instructed jury only as to that
subsection, conviction could not rest on sufficiency of evidence
under former section 1344(a)(1)).
11
United States v. Saks, 964 F.2d 1514 (5th Cir. 1992)
(citing United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.
1987)).
12
United States v. Church, 888 F.2d 20, 23 (5th Cir. 1989)
(citing United States v. McClelland, 868 F.2d 704, 709 (5th Cir.
1989)).
7
prohibits only crimes directed at financial institutions,13 we have
not held that the statute punishes only schemes directed solely at
institutional victims.14 We have recognized that knowing execution
of schemes causing risk of loss -- rather than actual loss -- to
the institution, can be sufficient to support conviction.15
Barakett admits that he induced many victims to deposit forged
checks drawn on Allied American Bank and Bank One. In so doing, he
knowingly engaged in a scheme placing those institutions at risk.16
Barakett likewise admits to inducing deposit of forged instruments
at Allied American and Bank One by Butler and Copp. These deposits
exposed both instututions to risk of loss, even though they
ultimately recovered from Butler and Copp.17 The evidence fully
13
United States v. Hooten, 933 F.2d 293 (5th Cir. 1991).
14
Id. (scheme by bank officer to defraud both institution
and customer supports liability under section 1344).
15
E.g., United States v. Lemons, 941 F.2d 309 (5th Cir.
1991). Even proof of an extremely remote risk will suffice.
Church (evidence sufficient to support conviction under former
section 1344(a)(1) where defendant issued worthless drafts against
nonexistent bank account).
16
Lemons (forgery of endorsement on and deposit of check
drawn on victim institution supports conviction under
section 1344(1)).
17
Hooten (mere availability of action against borrower
attempting to avoid payment on note fraudulently marked "paid" by
defendant bank employee would not eliminate risk of loss); see also
United States v. Frydenlund, 990 F.2d 822 (5th Cir. 1993) (knowing
execution of check-kiting scheme supports liability under
section 1344(1)).
8
supports Barakett's bank fraud convictions.
3. Multiplicity of Sentences
Barakett further asserts multiplicity in the sentences imposed
on counts one and two, and counts three and four. Relying on
United States v. Lemons, he argues that counts one and two charge
execution of a single scheme to defraud Allied American Bank, and
that counts three and four do the same with respect to Bank One.
This argument patently is without merit.
In evaluating this claim, we must determine whether the
punishments imposed comport with legislative intent.18 In Lemons,
we considered a bank fraud indictment which charged a separate
violation of section 1344 for each of six occasions upon which the
defendant received funds from the bank. We noted that, although
the defendant improperly received bank funds on several occasions,
the receipts resulted from a single scheme to defraud. We
therefore concluded that Congress intended their treatment as a
single offense. That, however, is not the case before us.
Barakett can identify no linkage between the conduct charged in
counts one and two, or between that of counts three and four other
than victim and modus operandi. Because counts one through four
involved separate fraudulent schemes, separate sentencing presents
no multiplicity problem.
18
United States v. Galvan, 949 F.2d 777 (5th Cir. 1991).
We must address this claim although raised for the first time on
appeal. Id. at 781.
9
4. Jury Instructions
Barakett faults the district court's jury instructions as
creating a substantial risk of non-unanimity of verdict. The jury
charge permitted conviction on the bank fraud counts if the
government proved beyond a reasonable doubt:
That the defendant . . . devised a scheme or plan to
defraud, or to obtain money by false or fraudulent
pretenses and representations, from Allied American Bank
or Bank One, as charged in the indictment.
According to Barakett, under these instructions his bank fraud
convictions could have rested upon findings by some jurors that he
executed schemes to defraud the victim institution and by others
that he obtained the institution's property through false or
fraudulent pretenses or representations. He therefore claims that
the district court should have provided a special jury instruction
to ensure unanimity before conviction.
Jury instructions on a single count embracing multiple
separate offenses deprive a defendant of the right to unanimity
where they create a genuine risk of conviction in the absence of
unanimous juror agreement of the commission of one of them.19
Assuming arguendo that sections 1344(1) and 1344(2) state separate
offenses, however, we need not decide whether the district court
erroneously charged the jury in the instant case. As Barakett
necessarily concedes, his failure to request such an instruction at
trial limits our review of the jury instructions to a search for
19
United States v. Holley, 942 F.2d 916 (5th Cir. 1991).
10
plain error.20 Under that standard, only error "which, when
examined in the context of the entire case, is so obvious and
substantial that failure to notice and correct it would affect the
fairness, integrity or public reputation of judicial proceedings"
admits of reversal.21 Here, the district court gave a general
unanimity instruction,22 and charged the jury on the bank fraud
counts substantially as requested by Barakett. Any defect in the
challenged jury instructions did not rise to the level of plain
error.23
5. Sentencing Departure
Finally, Barakett challenges the basis for and reasonableness
of the six-point increase in the offense level in the sentencing on
counts three, four, six, seven, and nine.24 District courts may
20
United States v. Razo-Leora, 961 F.2d 1140 (5th Cir.
1992); United States v. Birdsell, 775 F.2d 645 (5th Cir. 1985),
cert. denied, 476 U.S. 1119 (1986); see Fed.R.Crim.P. 52(b) ("Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the [trial]
court.").
21
United States v. Vontsteen, 950 F.2d 1086, 1092 (5th
Cir.) (en banc), cert. denied, 112 S.Ct. 3039 (1992).
22
We have recognized that such instructions generally
suffice to ensure unanimity. Holley.
23
Razo-Leora (in perjury prosecution where indictment
alleged multiple perjurious statements, absence of special
unanimity instruction as to each alleged perjurious statement not
plain error).
24
Barakett does not challenge the district court's upward
departure in criminal history category. We note, however, that his
foreign convictions, which did not enter into criminal history
11
impose sentences outside the range established by the Guidelines in
cases presenting "aggravating or mitigating circumstance[s] of a
kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines that should
result in a sentence different from that described."25 District
courts must, however, state on the record their reasons for
departing from the guideline sentencing range,26 and the degree of
departure must be reasonable.27 Where the district court determines
that a case presents, in unanticipated degree, aggravating factors
already taken into account by the Sentencing Commission, we review
its decision to depart only for abuse of discretion.28
In the instant case, the district court justified its upward
departure because criminal history category I failed adequately to
reflect Barakett's background, and in view of "[t]he extended
period of time over which the offenses were committed, the large
score calculations, fully support that departure. See U.S.S.G.
§ 4A1.2(h) ("Sentences resulting from foreign convictions are not
counted, but may be considered under § 4A1.3 . . . ."); id. § 4A1.3
(district court may depart upward where criminal history score
inadequately reflects seriousness of defendant's past criminal
conduct of likelihood of recidivism).
25
18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0.
26
18 U.S.C. § 3553(c)(2).
27
E.g., United States v. Lambert, 984 F.2d 658 (5th Cir.
1993) (en banc).
28
United States v. Davidson, 984 F.2d 651 (5th Cir. 1993).
12
numbers of victims involved, which [were] both banks and individual
females, [and] the amount of planning necessary to commit a
continuing pattern of offenses of this magnitude." Barakett argues
that the number of victims involved in his offenses could not
provide a basis for departure in this case, and that in any event,
the district court departed to an unreasonable degree.29
As Barakett points out, U.S.S.G. § 2F1.1(b)(2) permits a
two-point upward offense level adjustment "[i]f the offense
involved . . . a scheme to defraud more than one victim." The
presentence report reflects that since 1984 Barakett has victimized
at least 31, and perhaps as many as 56, women. We cannot conclude
that the district court abused its discretion in determining that
the Sentencing Commission did not, in framing the guidelines,
anticipate conduct involving such a large number of victims.30
Further, in view of the other reasons assigned for departure, which
we find fully supported by the record, we do not conclude that the
27-month departure was unreasonable.
The convictions and sentences are AFFIRMED.
29
Barakett also argues that sentencing on the basis of
uncharged conduct violated his rights under the fifth and sixth
amendments, and that the district court relied on insufficiently
reliable evidence in assessing the upward departure. Because
Barakett did not call these arguments to the attention of the
district court, and failure to consider them now will not result in
manifest injustice, we decline to do so. United States v. Sherbak,
950 F.2d 1095 (5th Cir. 1992).
30
Compare Davidson (district court abused its discretion in
departing upward to account for number of victims where defendants
engaged in scheme to defraud seven insurance companies).
13