65 F.3d 82 (8th Cir. 1995), 94-3925, United States v. Gardner

Docket Nº94-3925, 94-3927.
Citation65 F.3d 82
Party NameUNITED STATES of America, Appellee, v. Steven M. GARDNER, Appellant. UNITED STATES of America, Appellee, v. Edward L. MORRIS, Appellant.
Case DateAugust 28, 1995
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 82

65 F.3d 82 (8th Cir. 1995)

UNITED STATES of America, Appellee,

v.

Steven M. GARDNER, Appellant.

UNITED STATES of America, Appellee,

v.

Edward L. MORRIS, Appellant.

Nos. 94-3925, 94-3927.

United States Court of Appeals, Eighth Circuit

August 28, 1995

Submitted April 12, 1995.

Page 83

Michael Dwyer, Federal Public Defender's Office (argued), St. Louis, MO, for Gardner.

Samuel C. Ebling (argued), St. Louis, MO, for Morris.

Michael W. Reap, Assistant U.S. Attorney (argued), St. Louis, MO, Mary Jane Lyle (on the brief), for appellee.

Before WOLLMAN and MURPHY, Circuit Judges, and BENNETT, [*] District Judge.

Page 84

WOLLMAN, Circuit Judge.

Steven M. Gardner and Edward L. Morris appeal from the district court's 1 denial of their motions to dismiss on double jeopardy grounds an indictment alleging conspiracy to defraud and fraud. We affirm.

I.

In the mid-1980s, Germania Bank, a St. Louis area savings and loan association, began to suffer losses on its real estate loan portfolio. To increase its regulatory capital, Germania sought approval for a $10,000,000 public offering of uninsured, subordinated capital notes, commonly referred to as Schnotes, and a private offering of $7,500,000 of convertible subordinated debentures to Laclede Development Company.

Sales of the Schnotes began in October 1987, following governmental approval. By February 1988, approximately $8,500,000 worth of Schnotes had been sold, and on December 23, 1987, Laclede purchased $5,800,000 of the debentures. Germania's financial condition failed to improve, however, and in June 1990, Germania was placed in conservatorship by the Resolution Trust Corporation.

Gardner and Morris were indicted, along with Joseph Mason, by a federal grand jury in the Eastern District of Missouri on November 19, 1992. The indictment charges them with one count of conspiracy in violation of 18 U.S.C. Sec. 371, three counts of false entries in the books of a federally insured lending institution in violation of 18 U.S.C. Sec. 1006, one count of a false statement to a department or agency of the United States in violation of 18 U.S.C. Sec. 1001, and thirteen counts of mail fraud in violation of 18 U.S.C. Sec. 1341. All of the counts arose in connection with the operation of Germania Bank and the sale of the debt instruments. The indictment alleges that in connection with the proposed offerings, Morris, Gardner, Mason, and Jimmie W. New, 2 all officers of Germania, reviewed Germania's portfolio and decided not to book losses that would have required an addition of approximately nine million dollars in loan loss reserves and would have also required posting a loss for the third quarter of 1987, a consideration relevant to regulatory approval and important to the marketing of the Schnotes. The losses were also allegedly concealed from Germania's accountants and attorneys.

The same day on which the Missouri indictment was returned, Gardner and Morris were indicted by a federal grand jury in the Southern District of Illinois. The Illinois indictment alleged two counts of mail fraud in violation of 18 U.S.C. Sec. 1341 and one count of wire fraud in violation of 18 U.S.C. Sec. 1343, all arising out of the operation of Germania. The charges in both indictments relate generally to the intentional underfunding of Germania's loss loan reserves and the concealment of this fact from regulators and investors. The two indictments allege the same general course of fraudulent dealings in the same time frame and general geographic area, although the specific counts themselves are distinguishable.

At a hearing held in the Southern District of Illinois in February 1993, Gardner and Morris sought transfer of...

To continue reading

Request your trial
32 practice notes
  • 469 F.Supp.2d 941 (D.Colo. 2007), Crim. 05-CR-179, United States v. Weiss
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • January 4, 2007
    ...Id. Under the mail and wire fraud statutes, each individual use of the mail and the wires constitutes a separate offense. U.S. v. Gardner, 65 F.3d 82, 85 (8th Cir.1995). See also U.S. v. Kennedy, 64 F.3d 1465, 1476 (10th Cir.1995) ("The statute clearly contemplates a separate mail frau......
  • United States v. Weiss, 010807 CODC, 05-CR-179
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • January 8, 2007
    ...Id. Under the mail and wire fraud statutes, each individual use of the mail and the wires constitutes a separate offense. U.S. v. Gardner, 65 F.3d 82, 85 (8thCir. 1995). See also U.S. v. Kennedy, 64 F.3d 1465, 1476 (10th Cir. 1995) (“The statute clearly contemplates a separate mail fraud co......
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 49 Nbr. 2, March 2012
    • March 22, 2012
    ...Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes); United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) (holding that because defendants' conspiracy, false entry, and false statement counts were all plainly separate statutory offen......
  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 51 Nbr. 4, September 2014
    • September 22, 2014
    ...issue. (167.) U.S. Sentencing Guidelines Manual [section] 2B1.1 (2012) [hereinafter U.S.S.G. Manual]. (168.) See United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) ("[I]t is not the plan or scheme that is punished, but rather each individual use of the mails in furtherance of tha......
  • Request a trial to view additional results
15 cases
  • 469 F.Supp.2d 941 (D.Colo. 2007), Crim. 05-CR-179, United States v. Weiss
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • January 4, 2007
    ...Id. Under the mail and wire fraud statutes, each individual use of the mail and the wires constitutes a separate offense. U.S. v. Gardner, 65 F.3d 82, 85 (8th Cir.1995). See also U.S. v. Kennedy, 64 F.3d 1465, 1476 (10th Cir.1995) ("The statute clearly contemplates a separate mail frau......
  • United States v. Weiss, 010807 CODC, 05-CR-179
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • January 8, 2007
    ...Id. Under the mail and wire fraud statutes, each individual use of the mail and the wires constitutes a separate offense. U.S. v. Gardner, 65 F.3d 82, 85 (8thCir. 1995). See also U.S. v. Kennedy, 64 F.3d 1465, 1476 (10th Cir. 1995) (“The statute clearly contemplates a separate mail fraud co......
  • 225 F.Supp.2d 1022 (N.D.Iowa 2002), CR 00-3034, United States v. Johnson
    • United States
    • Federal Cases United States District Courts 8th Circuit
    • August 13, 2002
    ..."[t]his holds true despite the fact that [the offenses] arose out of the same course of conduct." United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995), cert. denied, 516 U.S. 1064, 116 S.Ct. 748, 133 L.Ed.2d 696 Just as the Court in Texas v. Cobb held that the Blockburger test......
  • 420 F.3d 134 (2nd Cir. 2005), 03-1262, United States v. Ramirez
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • August 23, 2005
    ...that the mailing represents the "individual act[ ]" prohibited, not the fraudulent scheme. See United States v. Gardner, 65 F.3d 82, 85 (8th Cir.1995) (charging multiple mail fraud offenses based on the same fraudulent scheme does not violate double jeopardy under Blockburger beca......
  • Request a trial to view additional results
17 books & journal articles
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 49 Nbr. 2, March 2012
    • March 22, 2012
    ...Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes); United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) (holding that because defendants' conspiracy, false entry, and false statement counts were all plainly separate statutory offen......
  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 51 Nbr. 4, September 2014
    • September 22, 2014
    ...issue. (167.) U.S. Sentencing Guidelines Manual [section] 2B1.1 (2012) [hereinafter U.S.S.G. Manual]. (168.) See United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) ("[I]t is not the plan or scheme that is punished, but rather each individual use of the mails in furtherance of tha......
  • False statements and false claims.
    • United States
    • American Criminal Law Review Vol. 51 Nbr. 4, September 2014
    • September 22, 2014
    ...Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes); United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) (holding that because defendants' conspiracy, false entry, and false statement counts were all plainly separate statutory offen......
  • Mail and wire fraud.
    • United States
    • American Criminal Law Review Vol. 48 Nbr. 2, March 2011
    • March 22, 2011
    ...money laundering was subject to mandatory forfeiture). (146.) U.S.S.G. MANUAL [section] 2B1.1 (2009). (147.) See United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) ("[I]t is not the plan or scheme that is punished, but rather each individual use of the mails in furtherance of tha......
  • Request a trial to view additional results