179 F.3d 1312 (11th Cir. 1999), 98-2347, United States v. Gregg

Docket Nº:98-2347.
Citation:179 F.3d 1312
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas V. GREGG, Defendant-Appellant.
Case Date:July 02, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1312

179 F.3d 1312 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas V. GREGG, Defendant-Appellant.

No. 98-2347.

United States Court of Appeals, Eleventh Circuit

July 2, 1999

Anthony Martinez, Asst. Fed. Pub. Defender, Tampa, FL, James T. Skuthan, Asst. Fed. Pub. Defender, Orlando, FL, for Defendant-Appellant.

Tamra Phipps, David Rhodes, Asst. U.S. Attys., Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HULL and MARCUS, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

Thomas Vance Gregg appeals his conviction and 41-month sentence for bank fraud (18 U.S.C. § 1344); theft of bank funds, (18 U.S.C. § 2113(b)); and money laundering, (18 U.S.C. § 1957). He argues insufficiency of the evidence on (1) the bank fraud conviction and (2) the money laundering conviction; and two sentencing issues: (3) improper enhancement for obstructing justice, and (4) failure to consider his ability to pay in ordering restitution. We affirm on all issues.

The case involved a fire insurance claim settlement check in which Gregg and other parties had an interest and which Gregg converted to his own use. Gregg was the president and sole shareholder of TEY Productions, Inc. ("TEY"). TEY purchased rental property from Mr. and Mrs. Walter J. Germack. The Germacks retained a mortgage interest in the property through a wrap-around mortgage. First Union National Bank held the first mortgage on the property, and DJC Properties held a third mortgage as collateral on an unrelated loan. The Germacks filed a foreclosure suit against TEY and Gregg. While foreclosure proceedings were pending, the property caught fire and sustained considerable damage. TEY's insurance carrier sent a casualty-loss check to Gregg in the amount of $261,000.00 in settlement of TEY's claim made payable to TEY, First Union, the Germacks, DJC Properties, and Tutwiler & Associates, the public adjuster that negotiated the claim on behalf of Gregg. Gregg caused the settlement check to be deposited in TEY's SunTrust Bank account, with only the endorsements of TEY, First Union, and Tutwiler. Gregg withdrew funds for his own use from the insurance proceeds deposited in the account. The bank suffered a $208,000.00 loss, the amount it had to pay to the Germacks and DJC Properties who had not endorsed the check but who had an interest in the funds from the settlement check. Gregg was charged with bank fraud, theft of bank funds, and money laundering.

  1. Sufficiency of Evidence on Bank Fraud Conviction

    Gregg argues that the government failed to prove that the false representation he made to the bank was "material." A person commits the crime of bank fraud who "knowingly executes, or attempts to execute, a scheme ... to defraud a financial institution ... by means of false or fraudulent pretenses, representations or promises." 18 U.S.C. § 1344.

    There is no doubt in the law now that the false representation in a bank fraud case has to be "material." The trial court instructed the jury that the government had to prove that Gregg made a "material" misrepresentation. After the trial in this case, we had held to...

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