United States v. Celestin

United States Court of Appeals
For the First Circuit

No. 09-1161

UNITED STATES OF AMERICA,

Appellee,

v.

JUDE CELESTIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Sejal H. Patel, with whom Shannon Frison and Frison Law Firm,
P.C., were on brief for appellant.
Robert A. Parker, Criminal Division, Appellate Section, U.S.
Department of Justice, with whom Lanny A. Breuer, Assistant
Attorney General, Gary G. Grindler, Deputy Assistant Attorney
General, Carmen M. Ortiz, United States Attorney, James P. Dowden,
Scott L. Garland, Assistant United States Attorneys, were on brief
for appellee.

July 14, 2010
 TORRUELLA, Circuit Judge. Jude Celestin was convicted by

a jury for bank fraud and conspiracy to commit bank fraud. See 18

U.S.C. §§ 1344 and 371. He appeals that conviction on multiple

grounds. First, Celestin contends that the district court abused

its discretion in trying Celestin jointly with a codefendant. He

asserts that the introduction into evidence of his nontestifying

codefendant's confession violated his rights under the

Confrontation Clause and Bruton v. United States, 391 U.S. 123

(1968), and that he suffered irreparable prejudice as a result of

his codefendant's incompetent pro se representation. Next,

Celestin argues that his due process rights were violated by the

government's failure to turn over exculpatory evidence prior to the

trial. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Finally,

Celestin claims that the district court improperly instructed the

jury regarding an essential element of bank fraud. We have

carefully considered these claims; finding no error, we affirm.

I. Background

A. Facts1

Burdley Jean, a former employee of Fleet Bank (now Bank

of America), devised a scheme to steal money from customer bank

accounts using counterfeit checks. Jean targeted several banks in

1
"We review the facts of a criminal case on appeal from a
conviction in the light most favorable to the verdict." United
States v. Mitchell, 596 F.3d 18, 20 (1st Cir. 2010)(internal
quotation marks omitted).

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New England, including Fleet, Sovereign Bank, and Citizens Bank.

He recruited bank insiders to provide him with customer account

information (such as account numbers, balances, and customer

names), which Jean used to create counterfeit checks. Jean

recruited other individuals to act as "runners" who would cash or

deposit these counterfeit checks. All told, conspiracy members

wrote bogus checks totaling in excess of $1 million.

Celestin, an account manager at Fleet's South Shore Plaza

branch, was one of the bank insiders recruited by Jean. On

twenty-two days over a six-month period, Celestin used his unique

operator identification number ("OPID") to improperly access

fourteen customer accounts, many of which had no relationship to

his branch. Shortly after Celestin accessed each account, runners

would begin cashing counterfeit checks against the account.

Bank records introduced at trial showed that, on certain

occasions, Celestin's OPID access of these accounts was

interspersed with access of his own checking account. Celestin's

time and attendance records also confirmed that he was working at

the bank on the days and at the times when his OPID was used to

access the defrauded accounts, with one exception: on October 6,

2004, the records showed Celestin working from 4:45 p.m. to 10:15

p.m. (the bank's late shift, which was his default schedule), but

his OPID records showed him accessing accounts from 10:51 a.m. to

12:58 p.m. (roughly, the early shift, which he occasionally

-3-
worked). Celestin's OPID records showed no activity between 4:45

p.m. and 10:15 p.m. on that day. The bank's computer system listed

the evening shift as Celestin's default work time, and bank

employees testified that the records would only have reflected a

different time if Celestin had manually changed it.

In November 2004, FBI agents visited Celestin's office

and questioned him about his role in the scheme. They showed him

the OPID records documenting that he had accessed the defrauded

accounts. Celestin admitted that he accessed the accounts, but

stated that he did so only after the accounts had been defrauded.

When the agents presented him with evidence that this was not true,

Celestin changed his story. He explained that, at least with

respect to one particular account, a representative had given him

permission to access the account. Celestin was unable to explain

why he had accessed the other defrauded accounts.

B. Procedural History

Celestin was indicted on one count of conspiracy to

commit bank fraud, see 18 U.S.C. § 371, and five counts of bank

fraud, see 18 U.S.C. §§ 1344 and 2. Celestin initially pleaded

guilty, but later filed a motion to withdraw his plea, which the

district court granted. After a nine-day trial, in which Celestin

was tried jointly with another coconspirator, Ducarmel Edouard, the

jury convicted Celestin of the conspiracy charge and two counts of

bank fraud. The jury acquitted him of the three remaining counts

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of bank fraud. The district court sentenced Celestin to forty-one

months of imprisonment, followed by three years of supervised

release. The district court also ordered him to pay a fine of

$2,500 and $587,602 in restitution. Celestin filed a timely

appeal.

II. Discussion

A. Severance

Celestin first argues that the district court abused its

discretion when it denied his motion to sever his trial from that

of his coconspirator Edouard, who chose to represent himself.

Celestin asserts that, as a result of this joint trial, his rights

under the Confrontation Clause were violated and, in any event, he

suffered irreparable prejudice due to Edouard's strange behavior in

the course of his pro se representation.

We review a severance ruling "for any manifest abuse of

discretion which deprived appellant of a fair trial and resulted in

a miscarriage of justice." United States v. Peña-Lora, 225 F.3d

17, 33 (1st Cir. 2000). "The hurdle is intentionally high,"

particularly in conspiracy cases, where severance "is especially

disfavored." Id. (quotation marks and citation omitted). As the

Supreme Court has recognized, "[t]here is a preference in the

federal system for joint trials of defendants who are indicted

together" because "they promote efficiency and serve the interests

of justice by avoiding . . . the inequity of inconsistent

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verdicts." Zafiro v. United States, 506 U.S. 534, 537 (1993)

(internal quotation marks and citation omitted). For that reason,

severance is warranted "only if there is a serious risk that a

joint trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable judgment

about guilt or innocence." Id. at 539. Whether this hurdle has

been met is "committed to the sound discretion of the trial court."

United States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995).

1. Confrontation Clause Claim

The Confrontation Clause of the Sixth Amendment

guarantees a criminal defendant the right "to be confronted with

the witnesses against him." U.S. Const. amend. VI. The primary

purpose of confrontation is "to secure for the opponent the

opportunity of cross-examination." Delaware v. Van Arsdall, 475

U.S. 673, 678 (1986) (internal quotation marks, citation, and

emphasis omitted). For that reason, out-of-court statements which

are "testimonial" in nature may be admitted against criminal

defendants only in certain limited circumstances. See Crawford v.

Washington, 541 U.S. 36, 68 (2004) ("Where testimonial evidence is

at issue, . . . the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for

cross-examination."). If these statements are nontestimonial,

however, the Confrontation Clause "has no application." Whorton v.

Bockting, 549 U.S. 406, 420 (2007).

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 Against this backdrop, Celestin asserts that he was

entitled to have his trial severed from that of his codefendant

because the admission into evidence of Edouard's out-of-court

confession violated Celestin's rights under the Confrontation

Clause. See Bruton v. United States, 391 U.S. 123, 135 (1968)

(prohibiting the admission of "powerfully incriminating

extrajudicial statements of a codefendant" in a joint trial).

Bruton, however, applies only to a statement that is, as to the

particular defendant challenging its admission, "inculpatory on its

face." United States v. Rodríguez-Durán, 507 F.3d 749, 769 (1st

Cir. 2007) (quotation marks and citation omitted). A statement

that "identifie[s] both the declarant and his codefendant by name

as the perpetrators of the crime" falls within the Bruton

prohibition, but "[s]tatements that are incriminating only when

linked to other evidence in the case" do not. United States v.

Vega-Molina, 407 F.3d 511, 520 (1st Cir. 2005) (citations omitted).

Edouard did not testify, and was therefore unavailable

for cross-examination by Celestin's counsel. His confession was,

as a result, read to the jury. It stated in full:

I met Burdley Jean at the 3C Nightclub on Blue
Hill Ave. BJ asked if I were interested in
cashing counterfeit checks, to which I agreed.

In 2003, I cashed four checks and remember
cashing a counterfeit check in Tewksbury. I
remember visiting Burdley at his address on
Ashmont Street in Dorchester. Burdley
accompanied me during the cashing of the
counterfeit checks.

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 In 2004, I again agreed to cash counterfeit
checks for Burdley. Burdley proceeded to give
me the checks and I went on to cash them on my
own and after each bank withdrawal, I would
meet Burdley, relinquish the money, and
receive up to 20 percent of the funds.

I accept full responsibility for counterfeit
checks in viewed surveillance pictures of me.

The confession made no explicit reference to Celestin. It did not

implicate Celestin directly, nor did it suggest any connection

between Celestin and the conspiracy or even that others beyond Jean

and Edouard were involved.

Celestin argues, nonetheless, that the confession was

powerfully incriminating insofar as its admission demonstrated the

existence of a conspiracy to commit bank fraud, effectively

lowering the government's standard of proof. But Edouard's

confession is incriminatory as to Celestin, if at all, "only when

linked to other evidence" of Celestin's participation in the

conspiracy and, therefore, Bruton is not implicated. Vega-Molina,

407 F.3d at 520; see Rodríguez-Durán, 507 F.3d at 769 (finding no

Bruton violation in a prosecution for conspiracy where the

statement at issue made no explicit reference to any of the

defendants who were on trial, other than the defendant who made the

statement, and defendants pointed only to prejudicial inferences

the jury could have drawn from the statement, including intent to

participate).

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 Indeed, we have previously explained that the potential

corroboration of the government's case resulting from the admission

of a codefendant's confession is insufficient, without more, to

rise to the level of a Bruton violation. United States v.

DiGregorio, 605 F.2d 1184, 1190 (1st Cir. 1979) ("The fact that a

codefendant's admission tended to corroborate the government's case

against [defendant] is simply not enough.") (citations omitted);

accord United States v. Greenleaf, 692 F.2d 182, 189 (1st Cir.

1982). Accordingly, the admission of Edouard's confession into

evidence does not present a Bruton issue.

Further, the district court instructed the jury that

Edouard's out-of-court statement was to be considered as evidence

only against him and not against his codefendant, Celestin. This

limiting instruction was sufficient to cure any prejudicial

inference the jury might have drawn as to Celestin. See Richardson

v. Marsh, 481 U.S. 200, 206, 211 (1987) (holding "that the

Confrontation Clause is not violated by the admission of a

nontestifying codefendant's confession with a proper limiting

instruction" when the confession omits "any reference to [the

defendant's] existence").2

2
Celestin also asserts that the admission of Edouard's
confession, an out-of-court statement by a non-testifying
codefendant, runs afoul of the more general prohibition against
testimonial hearsay. However, the prohibition applies only to
those statements admitted "against" a defendant and, "[o]rdinarily,
a witness whose testimony is introduced at a joint trial is not
considered to be a witness 'against' a defendant if the jury is

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 2. Pro Se Representation of Codefendant

Celestin also maintains that severance was necessary to

avoid the substantial prejudice he suffered due to codefendant

Edouard's pro se representation. We have previously held that "[a]

codefendant's pro se representation is not, without more, grounds

for severance; a defendant must additionally show that strong

prejudice resulted from the representation." United States v.

DeMasi, 40 F.3d 1306, 1313 (1st Cir. 1994). A showing of strong

prejudice requires that the defendant point to "specific

prejudicial incidents that occurred before the jury." Id.

(emphasis added).

Here, there is no question that Edouard's behavior was,

at times, bizarre. For example, Celestin cites to the following

exchange:

Edouard: Well, as I said before in previous
pleadings, that based on my First Amendment
Right to freedom of religion, it's against my
religion to testify or give an oath.

Court: Well, you wouldn't have to take an oath
and swear to God if it's against your
religion.

Edouard: It's against my religion to swear to
anything.

. . .

instructed to consider that testimony only against a codefendant,"
as occurred here. Richardson, 481 U.S. at 206; see also Vega-
Molina, 407 F.3d at 522. Here, in light of the district court's
limiting instruction, we find there was no violation of Celestin's
Confrontation Clause rights.

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 Court: If you have a religious objection to
the standard oath, [the Clerk] is going to
read you what the alternative will be. You'd
be required to affirm.

Clerk: "Do you affirm and declare that the
evidence that you shall give to the Court and
the jury shall be the truth, the whole truth,
and nothing but the truth[?]"

Court: Would you be willing to say that before
you testified?

Edouard: No, I will not.

Court: And is that because of your religious
beliefs?

Edouard: Yes, it is. And also because I don't
want to contract with this court in any way.

Court: You don't want to contract.

Edouard: That would be a verbal agreement and
I don't want to do that.

He also expressed his belief that the United States government did

not exist. And he maintained that he was not, in fact, Edouard,

but a "holder in due course." At one point, Edouard's stand-by

counsel stated to the court, "there is [a] real question in my mind

as to whether the defendant has an appreciation of how to present

and assist himself in his own defense."

However, these statements, on which Celestin bases his

challenge, were never heard by the jury. Rather, the district

judge instructed Edouard not to raise these views to the jury, and

Edouard abided by that instruction. Indeed, the experienced

district judge repeatedly complimented Edouard on his

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"appropriate[]" and "professional" conduct before the jury, and

expressly found that "[h]e's not doing anything that would distract

the jury from focusing on the defense that [Celestin's counsel is]

providing to Mr. Celestin." We therefore find that Celestin has

not shown that he suffered "strong prejudice" based on these

statements made outside of the jury's earshot. See DeMasi, 40 F.3d

at 1313 & n.7 (concluding that allegedly inflammatory and

prejudicial statements of pro se defendant were not made before the

jury and thus did not amount to "strong prejudice").

Accordingly, on these facts, we hold that the district

court did not abuse its discretion in denying Celestin's motion to

sever.

B. Brady

Next, Celestin seeks reversal of his conviction on the

ground that the government withheld exculpatory evidence, in

violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically,

he asserts that the government failed to turn over in a timely

manner his time and attendance records for October 6, 2004, which

reflect a discrepancy between the hours listed as his work hours

for that day and the hours when his OPID accessed the defrauded

accounts. He maintains that these records proved he was not

present in the bank at the times his OPID was used to access the

accounts, undermining the government's theory of the case. By

waiting until the trial was underway to provide the records,

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Celestin contends, the government impeded his ability to mount a

defense. The district court rejected these arguments at trial,

explaining that the government did not obtain the records until

after the trial had begun and that it had no obligation to produce

documents not in its possession. The court further noted that

Celestin was aware of these records and could have subpoenaed them

himself in the two-and-half years between his indictment and trial.

Under Brady,

the suppression by the prosecution of evidence
favorable to an accused upon request violates
due process where the evidence is material
either to guilt or to punishment, irrespective
of the good faith or bad faith of the
prosecution. But Brady did not create a
general constitutional right to discovery in a
criminal case.

United States v. DeCologero, 530 F.3d 36, 64 (1st Cir.

2008)(internal citations and quotation marks omitted). Rather, to

make out a Brady violation, the defendant must show that "(1) the

evidence at issue is favorable to [the defendant] because it is

exculpatory or impeaching; (2) the Government suppressed the

evidence; and (3) prejudice ensued from the suppression (i.e., the

suppressed evidence was material to guilt or punishment)." Conley

v. United States, 415 F.3d 183, 188 (1st Cir. 2005) (citing

Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). "Methods of

enforcing disclosure requirements in criminal trials are generally

left to the discretion of the trial court, and we review Brady

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determinations for abuse of discretion." DeCologero, 530 F.3d at

54-55 (internal quotation marks, citation, and alteration omitted).

In this case, there was no abuse of discretion. "The

government's obligations under Brady only extend to information in

its possession, custody, or control," United States v. Hall, 434

F.3d 42, 55 (1st Cir. 2006), and "Brady . . . [does not] require[]

a prosecutor to seek out and disclose exculpatory or impeaching

material not in the government's possession." Bender, 304 F.3d at

164. There is no dispute that the government did not possess the

records in question until the trial was underway, at which point it

promptly turned them over to Celestin. The government explained

that it did not obtain the records earlier because Celestin had

admitted that he accessed the accounts in question. Moreover, as

the district court noted, Celestin was well aware of his own time

and attendance records, and could have subpoenaed them himself in

the two-and-a-half years between his indictment and trial. Indeed,

the government only obtained the records after Celestin made a

specific request for them. See, e.g., United States v. Todd, 424

F.3d 525, 534 (7th Cir. 2005) (finding no Brady violation where, in

part, defendant was aware of potentially exculpatory records and

failed to subpoena them).

In any event, even assuming for argument's sake that

Brady applied, Celestin has failed to demonstrate that the alleged

failure to disclose the records was material, meaning that there is

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"a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different." United States v. Brown, 510 F.3d 57, 71 (1st Cir.

2007) (citations omitted). Celestin raised the October 6, 2004

discrepancy between the OPID records and his time and attendance

sheets repeatedly in his cross-examination of government witnesses

and in his closing argument. Although Celestin contends that he

was "handicapp[ed] . . . from fully using the exculpatory evidence"

or from "fully impeaching the government's main witness[,]" he

fails to explain how his trial strategy and defense would have been

different if he had obtained the records earlier.3

3
Celestin claims that the purported non-disclosure of his time
and attendance records prevented him from calling a witness (Jude
Joujoute, a former bank manager) to rebut the government's
explanation for the October 6th discrepancy. The district court
rejected this contention, finding that Celestin "could have tracked
down [Joujoute] in the course of [the nine-day] trial," which
occurred over "several weeks." Indeed, Celestin himself informed
the district court that the reason he did not call Joujoute as a
witness was because Joujoute "had moved to Nevada[,]" and that
"[i]t was only after the verdict that counsel was able to obtain
[Joujoute's] Nevada telephone number."
Further, Celestin submitted an affidavit from Joujoute in
connection with his motion for a new trial, and nothing in the
affidavit "could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict."
United States v. Josleyn, 206 F.3d 144,156 (1st Cir. 2000) (quoting
Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Joujoute's affidavit
merely provides that employees could submit a schedule change
request "either in writing or orally to the branch manager or
assistant manager[,]" and that he checked timesheets against "the
posted weekly schedule for accuracy." Joujoute's affidavit does
not establish that Celestin was not working on October 6 when his
OPID was used to access defrauded accounts, nor does it dispute any
of the other evidence of his guilt. Celestin himself has admitted
that Joujoute "ha[d] no present memory" regarding Celestin's hours

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 Moreover, the evidence that Celestin himself accessed the

accounts was substantial. The government introduced Celestin's

November 2004 admission that he had accessed the defrauded

accounts. Time and attendance records for the other twenty-one

days established that Celestin was working at the bank at all other

times when his OPID was used to access the defrauded accounts.

Records also showed that, on October 6, 2004, Celestin did not log

onto a computer at all during the period in which his records

indicated he was working. There was, in addition, testimony from

the bank's former manager which explained that the bank's computers

generated timesheets according to the employees' default hours, and

that the timesheets would have reflected a different time only if

Celestin had manually changed them. In light of all this, Celestin

has fallen far short of demonstrating that the government's failure

to hand over the records prior to trial could have affected the

verdict.

For all these reasons, there was no abuse of discretion

in the district court's rejection of Celestin's Brady claims.

C. Improper Jury Instruction

Finally, Celestin contends that the district court, in

responding to a jury question during deliberations, eliminated an

essential element of one of the charges, improperly amending the

indictment.

for October 6.

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 In its instructions to the jury, the district court

explained that the indictment charged Celestin with two distinct

crimes –- one count of conspiracy to commit bank fraud and five

substantive counts of bank fraud –- and that the jury could convict

him of bank fraud if it found that (1) he committed the fraud

himself, (2) he aided and abetted others in the commission of the

fraud, or (3) another coconspirator committed the crime in

furtherance of a conspiracy in which Celestin himself participated

(the Pinkerton theory), see United States v. Vázquez-Botet, 532

F.3d 37, 62 (1st Cir. 2008) ("[U]nder the Pinkerton doctrine, a

defendant can be found liable for the substantive crime of a

coconspirator provided the crime was reasonably foreseeable and

committed in furtherance of the conspiracy."). These three

alternative theories of liability were taken directly from the

indictment, and Celestin made no objection to this aspect of the

district court's instructions. Later, during its deliberations,

the jury inquired whether the use of the phrase "in furtherance of

the conspiracy" in the bank fraud counts meant that these counts

were "dependent on a guilty vote" on the conspiracy count. The

court instructed the jury that if it acquitted Celestin on the

conspiracy count, the number of the alternative theories of

liability would be reduced to two: that Celestin committed or aided

and abetted the specific incidents of bank fraud alleged in the

indictment. Celestin contends that in so doing, the district court

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impermissibly eliminated an essential element of the substantive

bank fraud counts (i.e., that they were performed in the course of

the charged conspiracy), resulting in a constructive amendment.

"A constructive amendment occurs when the charging terms

of the indictment are altered, either literally or in effect, by

prosecution or court after the grand jury has last passed upon

them." United States v. Dowdell, 595 F.3d 50, 58 n.4 (1st Cir.

2010) (quoting United States v. Fisher, 3 F.3d 456, 462-63 (1st

Cir. 1993)). "Constructive amendments are forbidden by the Fifth

Amendment, which guarantees defendants the right to be tried only

on charges indicted by a grand jury." United States v. Bucci, 525

F.3d 116, 131 (1st Cir. 2008) (citations omitted). "A constructive

amendment is considered prejudicial per se and grounds for reversal

of a conviction." Id. (quotation omitted). We review a claim of

constructive amendment de novo. Id. (citation omitted).

At the outset, we note that Celestin's contention that

his conviction should be vacated because we cannot tell whether the

jury convicted him of the two bank fraud counts on a Pinkerton

theory or under one of the two alternate theories of liability is

wide off the mark. The jury convicted Celestin of the conspiracy

charge and "the law is crystalline that, when the government has

advanced several alternate theories of guilt and the trial court

has submitted the case to the jury on that basis, an ensuing

conviction may stand as long as the evidence suffices to support

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any one of the submitted theories." United States v. Gobbi, 471

F.3d 302, 309 (1st Cir. 2006). Celestin has not argued that the

evidence was insufficient to support his conviction under any of

the theories alleged in the indictment.

In any event, we find that the district court properly

instructed the jury as to all the ways in which Celestin could be

convicted of the substantive bank fraud charges, which were clearly

set forth in the indictment. There is thus no doubt that Celestin

had notice of the various theories of liability on which he could

be convicted. See United States v. Hernández, 490 F.3d 81, 84 (1st

Cir. 2007) (finding no constructive amendment where defendant had

notice of the charges against him through the indictment). It also

follows that in answering the jury's question the district court

did not broaden the bases on which Celestin could be convicted.

Compare Stirone v. United States, 361 U.S. 212 (1960) (holding that

an indictment was unconstitutionally broadened where prosecution

offered evidence of two theories of liability –- interference with

interstate sand shipments and interference with interstate steel

shipments –- but grand jury indicted defendant only on the first

theory), with United States v. Miller, 471 U.S. 130, 145 (1985)

(finding that, even though the indictment alleged that defendant

defrauded his insurer by consenting to the burglary in advance and

by lying to his insurer about the value of his loss, the

government's trial proof concerning only the latter permissibly

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narrowed the indictment's charges). Rather, when the court

explained to the jury that Celestin could not be convicted under a

conspiracy theory if it acquitted him on the conspiracy charge, the

court narrowed the permissible bases for conviction in that

scenario; that is, the court eliminated a theory of liability

rather than removed an element of the crime.4 It is

well-established that a court may "narrow[] the indictment's

charges without adding any new offenses," Miller, 471 U.S. at 138,

and that "where an indictment charges several offenses, or the

commission of one offense in several ways, the withdrawal from the

jury's consideration of one offense or one alleged method of

committing it does not constitute a forbidden amendment of the

indictment." Id. at 146 (citations omitted).

Celestin has failed to show any violation of his Fifth

Amendment rights.

4
Although Celestin refers to "in furtherance of the conspiracy"
as an element of bank fraud, it is not. See 18 U.S.C. § 1344
("Whoever knowingly executes, or attempts 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; shall be fined not more than
$1,000,000 or imprisoned not more than 30 years, or both."); United
States v. Brandon, 17 F.3d 409, 424 ("To prove bank fraud under 18
U.S.C. § 1344, the prosecution must prove beyond a reasonable doubt
that the defendant (1) engaged in a scheme or artifice to defraud,
or made false statements or misrepresentations to obtain money
from; (2) a federally insured financial institution; and (3) did so
knowingly.") (citations omitted).

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 III. Conclusion

For the foregoing reasons, we affirm the district court's

judgment.

Affirmed.

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