199 F.3d 632 (2nd Cir. 1999), 99-1034, USA v Koh

Docket Nº:Docket Nos. 99-1034(L), 99-1036(CON)
Citation:199 F.3d 632
Party Name:UNITED STATES OF AMERICA, Appellee, v. MYUNG S. KOH, Defendant-Appellant.
Case Date:November 10, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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199 F.3d 632 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee,

v.

MYUNG S. KOH, Defendant-Appellant.

Docket Nos. 99-1034(L), 99-1036(CON)

United States Court of Appeals, Second Circuit

November 10, 1999

Argued: Aug. 23, 1999

Appeal from judgments entered following two separate jury trials in the United States District Court for the Southern District of New York, consolidated for purposes of sentencing and appeal: the first after a trial (Miriam G. Cedarbaum, Judge), finding the defendant guilty of one count of conspiracy to submit false loan applications to the Bank of Seoul, in violation of 18 U.S.C. § 371; and the second after a trial (Sidney H. Stein, Judge), finding the defendant guilty of one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, § 1014, and six counts of mail fraud, in violation of 18 U.S.C. § 1341. We hold principally that 18 U.S.C. § 1014 is applicable to fraudulent loan applications submitted to a United States agency of a foreign bank, regardless of whether it is federally chartered or federally insured, and that the District Court did not exceed its allowable discretion in determining that the defendant had failed to show that the decision to prosecute him was vindictively motivated.

Affirmed.

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Samuel Weissman, Esq., New York, NY, for Defendant-Appellant.

ROLAND G. RIOPELLE, Assistant United States Attorney for the Southern District of New York, New York, NY (Mary Jo White, United States Attorney, Stephen J. Ritchin, Lewis J. Liman, Baruch Weiss, Assistant United States Attorneys, of counsel), for Appellee.

Before: KEARSE, CALABRESI, and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

Defendant Myung S. Koh appeals from judgments entered following two separate jury trials in the United States District Court for the Southern District of New York: the first filed on January 14, 1999, after a trial on indictment S2 96 Cr. 82, before Miriam G. Cedarbaum, Judge, convicting him of one count of conspiracy to

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submit false loan applications to the Bank of Seoul, in violation of 18 U.S.C. § 371 ("bank fraud case"); the second, also filed on January 14, 1999, after a trial on indictment S2 97 Cr. 170, before Sidney H. Stein, Judge, convicting him of one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, § 1014, and six counts of mail fraud, in violation of 18 U.S.C. § 1341 ("mail fraud case"). On appeal, Koh contends among other things that: (1) 18 U.S.C. § 1014 ("the false statements statute") is inapplicable to fraudulent loan applications submitted to a United States agency of a foreign bank that is neither federally chartered nor federally insured; (2) his prosecution for mail fraud was vindictively motivated; (3) the District Court's charge was misleading and confusing to the jury; and (4) the District Court's calculation of the "loss" attributable to him under the Sentencing Guidelines was erroneous.

We hold that the false statements statute is applicable to fraudulent loan applications submitted to a United States agency of a foreign bank that is not federally chartered or federally insured. Finding Koh's additional claims to be meritless, we affirm his conviction.

BACKGROUND

As the details of the crimes of which Koh was convicted, as well as the evidence on which those convictions were based, are not relevant to the issues raised on appeal, we set forth only a brief procedural and factual background.

On July 14, 1997, Koh proceeded to trial on the redacted version of Count Four of indictment S2 96 Cr. 82, which charged him with conspiring to submit false loan applications to the Bank of Seoul, a New York agency of a foreign bank. These charges arose from Koh's submission of approximately twelve applications for letters of credit to the Bank of Seoul on behalf of a series of companies owned and controlled by Koh. The letters described fictitious transactions engaged in by the companies, which were suffering serious financial problems and were unable to repay loans from the Bank of Seoul. The false documentation served as the basis for the Bank of Seoul's issuance of checks to Koh's companies, which were in turn deposited in a second bank. At the same time, Koh obtained another check from the second bank in the same amount as that deposited, which he then used to repay the Bank of Seoul on another letter of credit that was then due to be paid by one of his companies. In this manner, Koh's companies were able to obtain credit from the Bank of Seoul when they were in fact insolvent. On July 16, 1997, the jury returned a verdict of guilty on that count, finding that Koh had conspired with others to submit false loan applications to the Bank of Seoul in 1990-1991.

On January 20, 1998, Koh and two of his co-defendants proceeded to trial on the conspiracy and substantive mail fraud charges contained in the S2 97 Cr. 170 indictment. The government offered substantial testimony and documentary proof showing that Koh and others conspired to operate a business, Korbean International Investment Corporation ("KIIC"), fraudulently between the Spring of 1992 and February 1995. In particular, the government offered evidence that Koh and his co-conspirators induced persons to invest in accounts controlled by KIIC, a company that had been essentially insolvent from the Fall of 1992 forward. In fact, Koh had signed a consent judgment drafted by the Commodities Futures Trading Commission ("CFTC"), agreeing to shut down KIIC's operations in December 1994. On February 11, 1998, the jury returned a verdict of guilty on all counts.

Following the mail fraud trial, Koh moved for a judgment of acquittal or, alternatively, for a new trial arguing, inter alia, that this Court's decision in United States v. Rossomando, 144 F.3d 197 (2d Cir. 1998), held that instructions such as those given to his jury were misleading and confusing. The District Court denied

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that motion, finding that there was a factual predicate for the charge given.

Following Koh's convictions on both indictments, the District Court ordered that the two indictments be consolidated for purposes of sentencing. After two lengthy sentencing hearings, the District Court sentenced Koh at the bottom end of the applicable Sentencing Guidelines to a term of seventy months' imprisonment, followed by a three-year term of supervised release, a special assessment of $400 and restitution of $7,600,000, for his convictions on both indictments. On January 14, 1999, following a remand by this Court for the correction of technical errors, the District Court entered amended judgments of conviction.

This timely appeal followed.

DISCUSSION

I. Application of the False Statements Statute

We review questions of statutory interpretation de novo, and begin with the language of the statute. See United States v. Figueroa, 165 F.3d 111, 114 (2d Cir. 1998).

The conspiracy of which Koh was convicted in the bank fraud trial centered on the substantive crime of submission of false loan applications to the Bank of Seoul under 18 U.S.C. § 1014, which provides in pertinent part:

Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of . . . a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978) . . . upon any application, advance, discount...

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