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.