United States v. Sirang

United States Court of Appeals,

Eleventh Circuit.

No. 94-8782.

UNITED STATES of America, Plaintiff-Appellee,

v.

Saeed SIRANG, a/k/a Steve Sirang, Defendant-Appellant.

Dec. 12, 1995.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CR-376-01-JOF, Forrester), Owen J.,
District Judge.

Before HATCHETT and EDMONDSON, Circuit Judges, and GIBSON*, Senior
Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge:

Saeed Sirang appeals his conviction on one count of wire

fraud, 18 U.S.C. § 1343 (1988), amended by 18 U.S.C. § 1343 (Supp.

V 1993), and six counts of bank fraud, 18 U.S.C. § 1344 (1988),

amended by 18 U.S.C. § 1344 (Supp. V 1993), in connection with

checks he wrote and funds he transferred around the time of Black

Monday, October 19, 1987, the day the stock market crashed. Sirang

argues that the district court erred in failing to give several

good faith defense instructions, and that the eleven-count

indictment was multiplicitous. We affirm the convictions.

The facts are not in dispute, except insofar as they bear on

Sirang's belief that his friend Michael Wallace would cover the

various checks Sirang drew.

Sirang had become an active trader in the stock market in 1979

when he was twenty-five years old. By 1987 Sirang managed the

*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
investments of Willow Development Company, his own company, and

Wallace Trading Company, which was owned by Sirang's wealthy

college friend, Michael Wallace. Wallace had lent Sirang $700,000

to establish Willow Development and had begun Wallace Trading with

$1 million of his own funds. The business purpose of Wallace

Trading was to buy and sell securities on margin. Wallace had no

background in this business and relied on Sirang to do the trading.

Willow and Wallace Trading maintained margin accounts at

several brokerage houses. Under these accounts, Sirang was

permitted to buy stocks without paying immediately. He was

required to pay fifty percent of the purchase price within five

business days of the purchase, but could wait to pay the other

fifty percent until he sold the stock. At times he failed to pay

by the fifth day or improperly sold the stock without ever having

paid for it. Accordingly, the brokerages had placed restrictions

on Willow's and Wallace Trading's brokerage accounts, and had

closed some of the accounts.

On October 9, 1987, Sirang bought $4.4 million worth of stock

through E.F. Hutton on margin for the Wallace Trading Account. The

initial fifty-percent payment of $2.2 million was due on Monday,

October 19. Wallace Trading also had margin calls to make at

Smith, Barney (about $200,000) and at Holmans, McGraw ($2.75

million) on that Monday morning. On Friday, October 16, Sirang

wrote a National Bank of Georgia (NBG) check from Willow to Wallace

Trading for $600,000, depositing it in the Wallace Trading account

at C & S Bank. Once the $600,000 check was credited to Wallace

Trading's account, the balance in the account was $47,000.
(However, there was also $600,000 in other outstanding checks on

the C & S account, see page 5, infra ). The Willow account did not

have the money to cover the check, and Sirang testified that he

intended to cover the Willow check with proceeds from selling stock

on Monday.

On Friday the market had fluctuated dramatically. Early

Monday morning Sirang went to E.F. Hutton. It was already apparent

that the market was very unstable. While at E.F. Hutton, Sirang

talked to Wallace in California. He told Wallace that Wallace

Trading faced substantial losses and that it had margin calls to

meet. Sirang asked if Wallace was prepared to send money to meet

the margin calls. He testified that Wallace told him to call late

in the afternoon and report the exact loss.

Before talking with Wallace again, Sirang wrote four checks to

E.F. Hutton from the Wallace Trading account at C & S totalling

$2.2 million, even though he admitted, "[W]hen I wrote the checks

I didn't have the money at C & S." Instead of writing one check

for the whole $2.2 million amount, Sirang testified that he used

four separate checks so that if he could not cover the entire

amount, at least some of the checks would clear. As soon as Sirang

had ostensibly paid the E.F. Hutton margin call (though with checks

drawn on insufficient funds), he gave orders to liquidate Wallace

Trading's E.F. Hutton account. E.F. Hutton informed him that he

would have about $1,665,000 after his account was liquidated.

Sirang had the ability to write checks on Wallace Trading's E.F.

Hutton account, so he drew three checks on the account, totalling

$1.6 million, and deposited those checks in Willow's account at
NBG. He also stopped payment on the $600,000 check drawn on

Willow's account at NBG, which he had deposited to Wallace's

account at C & S.

At this point Sirang "knew I had 1.6 million dollars

approximately in NBG, and I knew I had nothing anywhere else. I

had no money coming to me from anywhere else." He knew that

Wallace Trading's C & S account was overdrawn by $2.8 million,

being the $2.2 million he had written to E.F. Hutton and the

approximately $600,000 by which it had been overdrawn before he

deposited the $600,000 check drawn on Willow's NBG account, upon

which he had now stopped payment. As we have said, there was also

another outstanding check on the account for about $600,000, see

page 5, infra.

Sirang testified that he called Michael Wallace and notified

him about the losses Wallace Trading had sustained and that $2.8

million in checks were about to be presented to the Wallace Trading

account at C & S, which did not have the money to pay them. Sirang

said he told Wallace that he would transfer $2.8 million from his

account at NBG to cover Wallace Trading's account at C & S if

Wallace would wire him the $2.8 million in time to cover the NBG

checks when presented. According to Sirang, Wallace promised to

wire the money.

On Tuesday, October 20, C & S discovered a check had been

presented for payment from the Wallace Trading account which would

have caused the account to be overdrawn by about $600,000. (This

was before C & S discovered that Sirang had stopped payment on the

$600,000 check from Willow or that Sirang had given E.F. Hutton
$2.2 million in checks drawn on the C & S account). C & S asked

Sirang to deposit $600,000 in the form of a cashier's check before

C & S would honor the check that had already been presented.

Accordingly, Sirang withdrew $600,000 from Willow's NBG account to

buy a cashier's check, which he deposited in the Wallace Trading C

& S account. C & S then paid the check that had been presented.

This left Sirang $1 million at NBG.

Later the same day Sirang deposited four checks, totalling

$2.8 million, from the NBG Willow account into the C & S Wallace

Trading account. C & S treated those checks as available funds in

the account, even though it had not yet collected payment on the

checks. On October 20 and October 21 C & S paid the $2.2 million

worth of checks Sirang had written E.F. Hutton to make his margin

call.

Despite having just written $2.8 million in checks on the NBG

account (which only contained $1 million), Sirang then transferred

the money remaining in the NBG account to his relatives. On

October 21, he withdrew $750,000 from the Willow NBG account and

wire-transferred it to his father-in-law. Sirang claims he owed

his father-in-law money for an apartment in Teheran. The same day

he used $202,000 from NBG to pay off two loans he had at NBG. Both

loans were secured with certificates of deposit belonging to

Sirang's wife. After Sirang paid the loans, NBG released the

certificates of deposit.

Sirang testified that he again talked to Wallace late that

same afternoon (Wednesday, October 21). Wallace told Sirang he

would need to meet with him and review the documentation showing
Wallace Trading's losses before transferring money to cover the

losses.

The next morning, Thursday, October 22, Sirang's banker at NBG

discovered that four checks worth a total of $2.8 million had been

presented for payment against the now-empty Willow account at NBG.

Sirang came into NBG and met with his banker, who advised him that

NBG would not cover the checks. Sirang asked for advice and his

banker advised him to stop payment on the checks, which were then

returned to C & S.

Wallace never sent the money. C & S lost approximately $2.8

million on the checks it paid for Wallace Trading on the strength

of the uncollected NBG checks. C & S sued Sirang, and he

negotiated a settlement under which he paid half of the losses

incurred for a full release of C & S's claims. (This money

included the return of the $750,000 Sirang had wired to his

father-in-law.)

A grand jury indicted Sirang on ten counts of bank fraud, 18

U.S.C. § 1344, and one count of wire fraud, 18 U.S.C. § 1343. The

first count was based on the deposit of the $600,000 cashier's

check at C & S. The second through fifth counts were based on

Sirang's deposits at C & S of the four checks totalling $2.8

million to make it appear that the E.F. Hutton checks were covered.

The sixth count was based on Sirang's withdrawal of the $202,000

used to pay off the NBG loans that were secured by Sirang's wife's

property. The seventh through tenth counts were the stop payment

orders on the checks written on NBG and deposited in the C & S

account. Finally, the eleventh count was the wire fraud count,
based on the wire transfer of $750,000 to Sirang's father-in-law.

Sirang moved to dismiss the indictment for multiplicity, and

the district court denied his motion.

The main issue at trial was whether Sirang acted with

fraudulent intent or whether he believed he could cover the checks.

The government produced witnesses from banks and various brokerages

who testified about Sirang's history of overdrafts and late

payments and his violations of stock exchange rules in handling his

margin accounts. They established that Sirang had, more than once,

written checks knowing that he did not have enough money in the

account to cover the check.

Sirang introduced the testimony of Michael Wallace, who

testified that he had promised on Black Monday that he would wire

$2.8 million to cover the losses and that he had reneged. On the

other hand, an FBI agent testified that when he interviewed Sirang

after the $2.8 million loss, first on October 30, 1987, and again

a year later with counsel present, Sirang gave other explanations

of what money he thought was available to cover the checks. The

agent's detailed recitation of Sirang's statement did not include

anything about Wallace paying the checks.

The jury acquitted Sirang on the seventh through tenth counts,

based on the stop payment orders, but convicted on the other

counts. The court sentenced Sirang to one year imprisonment on

each of counts one through six to run concurrently, five years

suspended sentence on count eleven, and five years probation with

the special condition that Sirang pay $1.4 million restitution to

C & S.
 I.

Sirang argues that the district court erred in refusing three

proffered jury instructions bearing on the issue of good faith.

Sirang's lawyers submitted the Eleventh Circuit pattern instruction

for the good faith defense and two supplemental good faith

instructions. The court agreed that a good faith instruction was

necessary: "[I]t is the defendant's theory of [the] case that he

had the wherewithal to cover, he thought he had the wherewithal to

cover those checks when they were presented at NBG, and I am

obliged to [tell] them, if he had that belief in good faith, he's

got a defense." At the charge conference the court submitted for

counsel's review a good faith instruction that differed from the

one Sirang had requested. Sirang's lawyers objected: "I object to

having no, you know, single instruction that in my view represents

the theory of defense or essentially good faith that there is a

standard good faith charge." The court replied:

Your good faith charge as presented to me is not tailored to
the evidence. I have put in a good faith charge[.] [I]t is
not the one you requested.

[Sirang's counsel]: Okay.

The Court: I have put in that he can rely on anything that he
thought that he had available to him that would make those
checks good when presented. I don't know where, now, you can
certainly argue your defense from this charge, it's in there
several times.

[Sirang's counsel]: I understand.

The court then instructed the jury:

You may consider all of the possibilities that the defendant
in good faith thought that he had to cover the checks before
they were presented or returned. And you may consider all of
the defendant's other acts to the extent that they shed light
on whether or not he intended the checks would be honored when
presented or returned. Or whether he did not.
The court also instructed:

Statements or representations are false or fraudulent if they
relate to a material fact, if they are known to be untrue or
if they are made with the reckless indifference as to the
truth or falsity of the statement.

Further, a statement that is as to a material matter that is
untrue or made with reckless indifference as to the truth or
falsity must be shown to have been made with an intent to
defraud. A statement or representation may also be false or
fraudulent when it constitutes a half truth or effectively
conceals a material fact with the intent to defraud. A
material fact as it relates to this case is one that would be
important to a reasonable banker in deciding whether or not to
engage in a particular transaction.

Now, I have used the term "to act with the intent to
defraud". That means to act knowingly and with the specific
intent to deceive someone ordinarily for the purpose of
causing a financial loss to another or bringing about a
financial gain to one's self.

The intent is to be judged as of the time, in this case,
of the banking transaction. And subsequent acts do not change
the character of the original intent, but they may shed light
on what the original intent was.

In this case the scheme or artifice to defraud has been
loosely referred to by counsel as a check kite. You need to
understand that a check kite is not the depositing of a check
drawn on another bank where there is insufficient funds to pay
that check. In other words, negotiating an insufficient funds
check is not either a check kite or made criminal under this
statute.

If, however, somebody deposits a check in one bank, drawn
on an account in another bank, and if he deposits it knowing
the bank into which it is deposited will honor checks on the
balance so created, and if he does it knowing that the check
will not be honored at the bank on which it is drawn or that
it will not be made good at the time that it is returned, then
a defendant who does that may be found guilty of these
offenses.

Sirang's attorney argued in summation that Sirang acted in

reliance on Wallace's promise to send money to cover the checks.

Sirang now argues that the court erred in rejecting the
proffered Eleventh Circuit pattern instruction,1 and specifically
that the instruction the court gave erroneously failed to state

that (1) good faith was a complete defense and (2) Sirang did not

have the burden of proof as to good faith.

We review the district court's refusal to give a requested

instruction for abuse of discretion. United States v. Morris, 20

F.3d 1111, 1114 (11th Cir.1994). Generally, a refusal to give a

requested instruction is an abuse of discretion if: (1) the

instruction is correct; (2) the court did not address the

substance of the instruction in its charge; and (3) the failure to

give the instruction seriously impaired the defendant's ability to

1
Sirang's proposed instruction based on the Eleventh Circuit
pattern instruction read as follows:

I also instruct you that good faith is a complete
defense to the charges in the indictment since good
faith on the part of the Defendant is inconsistent with
intent to defraud or willfulness which is an essential
part of the charges. The burden of proof is not on the
Defendant to prove his good faith, of course, since he
has no burden to prove anything. The Government must
establish beyond a reasonable doubt that the Defendant
acted with specific intent to defraud as charged in the
indictment.

One who expresses an opinion honestly held by him,
or a belief honestly entertained by him, is not
chargeable with fraudulent intent even though his
opinion is erroneous or his belief is mistaken; and,
similarly, evidence which establishes only that a
person made a mistake in judgment or an error in
management, or was careless, does not establish
fraudulent intent.

On the other hand, an honest belief on the part of
the Defendant that a particular business venture was
sound and would ultimately succeed would not, in and of
itself, constitute "good faith' as used in these
instructions if, in carrying out that venture, the
Defendant knowingly made false or fraudulent
representations to others with the specific intent to
deceive them.
present an effective defense. Id. at 1115-16. A defendant is

entitled to a specific instruction on his theory of defense, not an

abstract or general one. United States v. Lewis, 592 F.2d 1282,

1286 (5th Cir.1979).

In Lewis, 592 F.2d at 1284-87, the court held that it is error

to refuse a good faith defense instruction in a fraud trial if

there is evidentiary support for the charge. However, in later

cases, it has become clear that Lewis does not set out a per se

rule, but that refusal of a good faith instruction must be tested

by the general standards set out above. In Morris, we reversed a

conviction for filing a false tax return because the court refused

a good faith instruction; however, we did so only after analyzing

the particular facts of the case under the three-part test. 20

F.3d at 1116-18. We concluded the instructions the court actually

gave in Morris did not instruct that the false filing had to be

made "knowingly." Id. at 1117. Additionally, Morris emphasized

the unusual nature of the scienter element in criminal tax laws, in

which mistake of law is actually a defense, and which, therefore,

made it especially important to charge the jury on the good faith

defense. Id. at 1117-18. This latter factor, of course, does not

exist in Sirang's case.

In United States v. Walker, 26 F.3d 108 (11th Cir.1994) (per

curiam), we affirmed a fraud conviction in which the district court

declined to give a good faith instruction in addition to the

instruction on intent to defraud. We held that the court had

addressed the substance of the instruction in the charge on

specific intent, because "[a] finding of specific intent to deceive
categorically excludes a finding of good faith." Id. at 110

(quoting United States v. Chenault, 844 F.2d 1124, 1130 (5th

Cir.1988)). Compare United States v. Rochester, 898 F.2d 971, 978

(5th Cir.1990) ("failure to instruct on good faith is not fatal

when the jury is given a detailed instruction on specific intent

and the defendant has the opportunity to argue good faith to the

jury"); United States v. Mancuso, 42 F.3d 836, 847 (4th Cir.1994)

("If the district court gives adequate instruction on specific

intent, a separate instruction on good faith is not necessary.");

United States v. Dockray, 943 F.2d 152 (1st Cir.1991) (same;

surveying circuits); United States v. Ribaste, 905 F.2d 1140, 1143

(8th Cir.1990) (intent instruction adequate); with United States

v. Hopkins, 744 F.2d 716, 718 (10th Cir.1984) (en banc) (requiring

good faith instruction). From Morris and Walker we learn that

failure to give the proffered instruction on good faith is not per

se error, but that we must examine the facts of the case to

determine the adequacy of the instructions as a whole and the

effect of the omission on the defendant's case.

Importantly, the district judge in this case did not refuse to

give a good faith instruction. He rejected the proffered

instruction because he considered it inapposite to the facts of the

case. The proffered instruction refers to "one who expresses an

opinion honestly held," whereas Sirang argued not that he

mistakenly thought he had money to cover the checks, but that he

had a reasonable expectation that he would receive money in time to

cover the checks. When counsel objected that the district judge

had not included the proffered instruction, the district court told
counsel that the proffered instruction was "not tailored to the

evidence" and "I have put in a good faith charge[.] It is not the

one you requested." Counsel replied first, "Okay," and later, "I

understand." Counsel made no further objection to the instruction

(or lack of instruction).

Under Federal Rule of Criminal Procedure 30, defense counsel

must object to omissions "stating distinctly ... the grounds of the

objections." While we do not insist on an extremely technical

reading of Rule 30, see, e.g., United States v. Edwards, 968 F.2d

1148, 1152-53 (11th Cir.1992), cert. denied, --- U.S. ----, 113

S.Ct. 1006, 122 L.Ed.2d 155 (1993), the objection should be

sufficient to give the district court the chance to correct errors

before the case goes to the jury. Id.; United States v. Boruff,

909 F.2d 111, 118 (5th Cir.1990), cert. denied, 499 U.S. 975, 111

S.Ct. 1620, 113 L.Ed.2d 718 (1991). Without such an objection, we

review only for plain error. United States v. Vazquez, 53 F.3d

1216, 1221 (11th Cir.1995).

Here, counsel objected, but the district judge discussed the

objection with counsel, giving the reason why he substituted his

own instruction, which referred to the good faith theory counsel

wished to emphasize. Counsel failed to make additional specific

objections, but now argues that the substituted instruction failed

to state explicitly that good faith was a defense and that Sirang

did not have to prove good faith.

Counsel's responses and lack of further objection allowed the

judge to conclude that he had addressed the objections that had

been stated. Thus, we review the good faith charge only for plain
error. Even if there are inadequacies in the good faith

instruction given by the court, the instructions made it clear that

the burden was on the government to establish intent to defraud,

which meant "to act knowingly and with the specific intent to

deceive" for the purpose of causing a financial loss. As we have

said, the finding of specific intent to deceive categorically

excludes a finding of good faith. See Walker, 26 F.3d at 110. We

conclude that if there was error in the instruction, it was not

plain, clear, or obvious, Vazquez, 53 F.3d at 1222, and so did not

rise to the level of plain error.

Besides the Eleventh Circuit pattern instruction, Sirang also

argues that the court erred in refusing two supplementary good

faith instructions. The first proposed instruction states that "a

person who writes a check with the reasonable expectation that

sufficient funds will be available by the time the check clears the

bank lacks the requisite fraudulent intent." This instruction is

confusing because the phrase "by the time the check clears the

bank" does not specify whether it is the payor bank or depositary

bank that the check must clear. Furthermore, the proffered

language instructing the jury that funds must be available "by the

time the check clears the bank," does not square with the law

requiring funds to be available "at the time [the check] was

presented for payment." See United States v. Foshee, 569 F.2d 401,

403 n. 2 (5th Cir.), modified on other grounds, 578 F.2d 629 (5th

Cir.1978). Finally, the phrase "clear the bank" misleadingly

assumes that the check is ultimately paid, which of course, does

not fit the evidence in this case. There was no error in refusing
to give this instruction.

The other proposed instruction stated: "Although repayment

of a loan is not a complete defense to [fraud], the jury may

consider repayment as bearing on the defendant's intent to

defraud." Sirang paid half the amount of C & S's loss as

settlement of a lawsuit long after the events in question. Partial

payment under compulsion of litigation does not tend to prove lack

of fraudulent intent, and under these circumstances such an

instruction would have been misleading. On this basis alone, we

could conclude that the district court did not abuse its discretion

in refusing the instruction. Cf. United States v. Foshee, 578 F.2d

629, 632-33 (5th Cir.1978) (error to exclude evidence of full

repayment "virtually within one week's time" of discovery by the

bank examiner; remarking that fact of nonpayment tends to prove

fraud). It is not necessary that we do so, however, as the judge

instructed generally that "you may consider all of the defendant's

other acts to the extent they shed light on whether or not he

intended the checks would be honored when presented or returned."

Sirang was permitted to introduce evidence of the payment. Counsel

commented on this payment in his summation, and the jury was

permitted by instruction to consider the evidence. The court did

not abuse its discretion in denying the proffered repayment

instruction.

II.

Sirang argues that counts one through six are multiplicitous

and that counts one and six charge conduct that was not properly

characterizable as fraud.
 "An indictment is multiplicitous if it charges a single

offense in more than one count." United States v. Howard, 918 F.2d

1529, 1532 (11th Cir.1990), cert. denied, 500 U.S. 943, 111 S.Ct.

2240, 114 L.Ed.2d 482 (1991). Although we stated inHoward that we

would review the multiplicity holding for abuse of discretion, id.,

we actually conducted a legal analysis of the appellants' double

jeopardy arguments, id. at 1532-33, which was essentially de novo.

Cf. United States v. Nguyen, 28 F.3d 477, 482 (5th Cir.1994)

(applying de novo standard to multiplicity arguments). Similarly,

legal analysis is necessary for review of Sirang's multiplicity

argument.

Under 18 U.S.C. § 1344, a defendant may be charged in

separate counts for each "execution" of the scheme to defraud.

United States v. Lemons, 941 F.2d 309, 317 n. 5 (5th Cir.1991) (per

curiam); United States v. Poliak, 823 F.2d 371, 372 (9th

Cir.1987), cert. denied, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d

901 (1988). A difficult conceptual question arises in section 1344

bank fraud cases as to whether particular transactions constitute

an "execution" of a scheme or merely a component of such execution.

See, e.g., Lemons, 941 F.2d at 317 n. 5. Relevant factors in

determining whether there are multiple executions are the number of

banks involved, the number of transactions, and the number of

movements of money. See United States v. Wall, 37 F.3d 1443, 1446

(10th Cir.1994).

In check-kiting cases, separate checks have been considered

separate executions of the scheme. See Poliak, 823 F.2d at 372;

United States v. Schwartz, 899 F.2d 243, 248 (3d Cir.), cert.
denied, 498 U.S. 901, 111 S.Ct. 259, 112 L.Ed.2d 217 (1990); see

also United States v. Barnhart, 979 F.2d 647, 650-51 (8th Cir.1992)

(distinguishing checks in check-kiting cases from component acts in

"a scheme to obtain a certain amount of funds or to obtain

financing for a particular transaction"). Sirang argues that each

of the four checks written on the NBG account was part of one

transaction, but the evidence shows that he purposely chose to use

multiple transactions to better his position with C & S. As the

Ninth Circuit has remarked, "[T]wo transactions may have a common

purpose but constitute separate executions of a scheme where each

involves a new and independent obligation to be truthful." United

States v. Molinaro, 11 F.3d 853, 861 n. 16 (9th Cir.1993), cert.

denied, --- U.S. ----, 115 S.Ct. 668, 130 L.Ed.2d 602 (1994); see

also Mancuso, 42 F.3d at 847-48; United States v. Hord, 6 F.3d

276, 282 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.

1551, 128 L.Ed.2d 200 (1994). There is no abuse of discretion in

permitting these transactions to be indicted separately.

Finally, Sirang claims that counts one and six are based on

conduct that cannot be characterized as fraud. Count one is based

on Sirang's deposit of the $600,000 cashier's check at C & S, in

response to C & S's call to Sirang informing him that Wallace

Trading had a potential overdraft. The evidence at trial supported

the inference that Sirang made this deposit to pacify C & S and

thereby lull the bank into paying the E.F. Hutton checks which

would be presented later that day. Therefore, we uphold his

conviction on count one.

Count six is based on the transfer of the $200,000 to pay off
the NBG loan and thereby release certificates of deposit belonging

to Sirang's wife. At the time Sirang took that money out of NBG,

C & S was holding $2.8 million in NBG checks, payment of which

depended in part on that $200,000 staying in the NBG account.

Thus, Sirang took money that would have been available to pay the

checks held by C & S. Thus, the conduct indicted in count six was

properly characterized as fraud.

. . . . .

We AFFIRM Sirang's convictions.