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.