United States v. Key

                    United States Court of Appeals,

                           Eleventh Circuit.

                                No. 95-8052.

          UNITED STATES of America, Plaintiff-Appellee,

                                     v.

                   Michael KEY, Defendant-Appellant.

                            Feb. 28, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-65-1), Marvin H. Shoob, Judge.

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

     PER CURIAM:

     Michael Key appeals his conviction on charges of bank fraud

under 18 U.S.C. § 1344 and making false statements on a loan

application under 18 U.S.C. § 1014.        He contends that there was

insufficient   evidence    to    convict   him,   that    the   government

improperly introduced evidence of earlier bad acts, that the

district court abused its discretion by denying a continuance, and

that his sentences for bank fraud and making false statements are

multiplicitous.1    We see no error and affirm the convictions.

                                     I.

     Key visited the Trust Company Bank ("Trust Company" or the

"bank") in 1990 seeking a residential loan.              Trust Company is


     1
      Counsel for Key indicated at oral argument that she would
address no sentencing issues because "Defendant-appellant is now
out of custody and therefore the sentencing issue would be
somewhat moot in this case...." We therefore treat the
multiplicity issue and other sentencing issues as either moot or,
in the light of the above statement, abandoned. See generally
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6
(11th Cir.1989) (discussing abandonment of claims on appeal, and
citing cases).
federally insured, as indicated by several signs posted inside the

bank.   Key met with an officer of the bank for a loan application.

Later, Key filled out the loan application but used the name of his

deceased     brother.         He   indicated      on    the   application     that    the

applicant had no outstanding civil judgments against him, when in

fact Michael Key had several.              The Trust Company Bank name and logo

appeared     in   large   print       on   the    loan    application.        No   other

financial institution was named on the application.

     The record is vague on the events that transpired thereafter,

but the facts appear to be as follows.                    The loan application was

sent by Trust Company to SunTrust Mortgage, Inc., a non-federally

insured institution.           SunTrust had responsibility for processing

the loan application and verifying the information contained in it,

but final approval of the loan was made after involvement by

officers at both entities.             The check presented to Key's attorney

at the closing named Trust Company Bank as the drawee bank.                          Some

time after the loan proceeds were disbursed to Key, SunTrust sold

the mortgage to Trust Company, in accordance with a standing

arrangement between the institutions.

     After his arrest, Key was tried before a jury in the Northern

District of Georgia and convicted of the counts named above.

                                            II.

        Key asserts that his convictions for bank fraud and making

false statements cannot stand because the government failed to

prove   he   intended     to       victimize      a   federally-insured       financial

institution.       Proof of federally-insured status of the affected

institution       is,   for    both    section         1344   and   section    1014,    a
jurisdictional      prerequisite    as   well   as    an    element   of   the

substantive crime. E.g., United States v. Williams, 592 F.2d 1277,

1281-82 (5th Cir.1979).      Whether the defendant knew of the victim

institution's insured status is not important.             That the defendant

knowingly directed his conduct at a bank that the government can

prove was insured is enough.       See United States v. Bowman, 783 F.2d

1192, 1198 (5th Cir.1986) (citing United States v. Lentz, 524 F.2d

69   (5th    Cir.1975)).2   Key    challenges   the   sufficiency     of   the

evidence only insofar as the insured status of the victim bank is

concerned;      he does not otherwise question that his conduct does

come within section 1344 and section 1014.3

          Whether the government proved the jurisdictional element is


      2
      Some cases suggest that a sort of "transferred' intent
might be sufficient, so that one intending to victimize a
non-insured institution who by his acts harms an insured
institution may be held accountable in federal court. See, e.g.,
United States v. Brandon, 17 F.3d 409, 426 (1st Cir.1994) ("We
hold that it is also unnecessary for the government to prove that
a defendant knows which particular bank will be victimized by his
fraud as long as it is established that a defendant knows that a
financial institution will be defrauded.") (emphasis in
original). Because we conclude the evidence supports that Key
knew his conduct would affect Trust Company and in fact did
affect Trust Company, we need not pass on the validity of such a
concept.
      3
      While the legislation at issue was "designed to provide an
effective vehicle for the prosecution of frauds in which the
victims are financial institutions that are federally created,
controlled, or insured," see S.Rep. No. 225, 98th Cong., 2nd
Sess. 377 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News
3182, 3517, a bank need not suffer financial injury to be a
"victim" under either statute. United States v. Solomonson, 908
F.2d 358, 364 (8th Cir.1990) (bank fraud); United States v.
Waldrip, 981 F.2d 799, 806 (5th Cir.1993) (bank fraud and false
statements). Nonetheless, the insured bank cannot be a mere
bystander to the fraudulent transaction. United States v.
Blackmon, 839 F.2d 900, 904-06 (2d Cir.1988) (where bank was
neither target nor victim of defendant's scheme, bank fraud
statute did not apply).
measured as a challenge to the sufficiency of the evidence. United

States    v.    Schultz,     17   F.3d    723,    725     (5th    Cir.1994).      For

appellants, that standard, "though more lenient than the plain

error standard, is still quite formidable."                 Id.   All evidence and

inferences therefrom are viewed in the light most favorable to the

verdict.       Id.

         The issue is whether Key knew or intended that his conduct

might place Trust Company, the insured institution, at risk of

financial harm.        United States v. Ragosta, 970 F.2d 1085, 1089 (2d

Cir.1992).      The knowledge or intent required for the two statutes

at issue is as follows:           The requisite intent for bank fraud is

present if defendant's conduct was "designed to deceive a federally

chartered or insured financial institution into releasing property,

with the intent to victimize the institution by exposing it to

actual or potential loss."          Id. (citations omitted).          In a similar

way, a defendant convicted of violating section 1014 must have

acted "for the purpose of influencing ... the action of a federally

insured institution engaged in a lending activity."                  United States

v. McDow, 27 F.3d 132, 135 (5th Cir.1994) (internal quotation marks

omitted).

         Upon review of the record, and drawing all inferences in

favor of the verdict, we conclude that a reasonable jury might have

found beyond a reasonable doubt that the jurisdictional element was

satisfied.           That   Key   knew   his     scheme    was    directed     toward

"deceiving" and "influencing" Trust Company, rather than SunTrust

only, was amply evidenced.               The application he filled out was

printed on paper conspicuously marked with the Trust Company name,
accompanied by the bank's logo.                 The building in which he filled

out the application was a branch of the Trust Company, and signs in

the building spoke of Trust Company's insured status.                      By the way,

the check presented to the defendant at the closing noted on its

face that the funds would be drawn on the Trust Company bank.                          The

record establishes sufficient evidence to support the verdict.

                                          III.

         Key also argues that evidence of judgments outstanding

against    him       was    introduced    in     contravention      of     the   bar    of

Fed.R.Evid. 404(b) against evidence of prior acts.                          But, it is

settled that evidence of other acts is admissible if it is relevant

to some issue other than character, is sufficiently proven to allow

a jury finding that the defendant committed the extrinsic acts, and

satisfies the requirements of Fed.R.Evid. 403.                      United States v.

Lampley,        68   F.3d    1296,   1299       (11th       Cir.1995).      Here,      the

outstanding-judgments evidence went to motive:                     they provided Key

an incentive to lie about his identity because people against whom

large and still enforceable judgments are outstanding are unlikely

to be extended credit.               Also, the accuracy of the extrinsic

evidence    is       uncontested.        And,    the    government       introduced     no

evidence of the circumstances surrounding the prior judgments, and

so any resulting prejudice was minimal.                     This claim is meritless.

                                           IV.

      Key also alleges abuse of discretion in the district court's

denial     of    a    continuance    following          a    superseding    indictment

containing new factual allegations.                Three days before trial, Key

was arraigned on a superseding indictment.                        He argues the new
indictment required factual research, legal research, and time to

draft certain motions, all of which he was denied by the district

court's decision.     But, this court's holding in   United States v.

Petit, 841 F.2d 1546, 1554 (11th Cir.1988), makes clear that the

district court has substantial discretion in this regard, and the

defendant must show significant prejudice to demonstrate abuse of

that   discretion.   The defendants in    Petit   saw   a   superseding

indictment returned two working days before the trial, which made

amended factual assertions that, much like the amendments here,

might have shifted the focus of the defendants' theory of the case.

But, as with the unsuccessful claim made in Petit, Key was already

on notice of the nature of the overall factual dispute;      and he has

not identified specific legal action that was foreclosed by the

little time he had.    We conclude there was no abuse of discretion.

       Key's conviction is AFFIRMED.