U.S. v. Chandler

• Decision Date: 23 October 1996
• Docket Number: D,No. 620,620
• Parties: UNITED STATES of America, Appellee, v. Carrie CHANDLER, also known as Amy Glasper, Defendant-Appellant. ocket 94-1522.
• Court: U.S. Court of Appeals — Second Circuit

Page 711

98 F.3d 711

UNITED STATES of America, Appellee, v. Carrie CHANDLER, also known as Amy Glasper, Defendant-Appellant.

No. 620, Docket 94-1522.

United States Court of Appeals, Second Circuit.

Argued Jan. 22, 1996.

Decided Oct. 23, 1996.

Carrie Chandler, Bronx, NY, Pro Se.

Burton Ryan, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney, Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, NY, of counsel), for Appellee.

Before: WINTER, JACOBS and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Carrie Chandler, pro se, appeals from a judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge ) entered on September 28, 1994. Following a jury trial, Chandler was convicted of one count of possessing and using five or more false identification documents in violation of 18 U.S.C. § 1028(a)(3) one count of making a false statement in the application and use of a passport in violation of 18 U.S.C. § 1542, and one count of bank fraud in violation of 18 U.S.C. § 1344. On appeal, the defendant challenges the jury instructions for all three counts.

For the reasons that follow, we affirm on all counts.

I. BACKGROUND

By superseding indictment entered on March 17, 1993, Chandler was indicted on five counts. Count One charged that between September 1987 and June 1992 Chandler possessed and used five or more false identification documents--namely, a U.S. passport, a State of Michigan driver's license, a certified copy of a birth certificate, a State of Michigan voter registration card, and a Social Security Card--in violation of 18 U.S.C. § 1028(a)(3). Count Two alleged that in July 1989, by stating her name as Amy L. Glasper, Chandler made a false statement in the application and use of a passport in violation of 18 U.S.C. § 1542. Count Three charged that between December 1987 and June 1992 Chandler used a passport procured by a false statement (the passport was issued in the name of Gail T. Wilson), violating 18 U.S.C. § 1546(a), which proscribes fraud and misuse of visas, permits, and other documents. Count Four charged Chandler with attempting in May 1992 to prevent a witness from testifying in the grand jury investigation into Counts One through Three, constituting obstruction of justice in violation of 18 U.S.C. § 1512(b)(1).

Count Five alleged that Chandler committed bank fraud in violation of 18 U.S.C. § 1344. Count Five charged that, between November 1991 and March 1992, Chandler falsely obtained a line of credit from Household Finance Corporation, a division of Household Bank, by giving her name as Amy L. Walker. The indictment alleges that the real Amy L. Walker, Chandler's sister, died in 1968 and that Chandler used her credit line to sign checks totalling $4,898.

A jury trial was held in July 1994. Chandler represented herself with the assistance of a legal advisor. At trial, the Government presented evidence that Chandler obtained credit cards, passports, driver's licenses, and a social security card, in the names Amy Glasper, Gail Thomas Wilson, and Alma Pearsall, and visited Gregory Glasper, an inmate whom she has since married, using this identification and in violation of the terms of her parole. The Government also presented evidence that, under the name of Amy L. Walker, Chandler withdrew money using a check from one of the credit card accounts, an action which formed the basis of the bank fraud count.

Before charging the jury, the district court dismissed the counts for fraud and misuse of visas, permits, and other documents (Count Three) and for obstruction of justice (Count Four). The court charged the jury on July 12, 1994. Chandler did not object to the portion of the charge covering bank fraud. Later that day, the jury returned a verdict of guilty on all three remaining counts.

On September 16, 1994, the district court sentenced Chandler to twenty-one months of imprisonment, with credit for time served, five years of supervised release, $4,898 in restitution, and a $150 special assessment. Having served her sentence, Chandler is no longer incarcerated.

On appeal, Chandler argues the district court erred in the jury instructions for each of the three counts presented to the jury. Chandler challenges the bank fraud conviction (Count Five) on the ground that the court failed to charge the jury that in order to convict it had to find that she intended to harm the bank. Chandler challenges the false identification conviction (Count One) on several grounds, including that the court failed to provide a "specific unanimity" charge. Finally, Chandler contends that the court's instructions to the jury on the false passport charge (Count Two) were prejudicially unbalanced.

We address each argument in turn.

II. DISCUSSION

A. Bank Fraud

Chandler claims that the court erred in charging the jury that it could convict her of bank fraud under 18 U.S.C. § 1344 if it found that she intended to deceive the bank. She claims that § 1344 requires not just intent to deceive but intent to harm or cheat. Chandler points out that while intent to deceive can be found if the defendant knowingly gave false information, intent to harm or cheat can only be satisfied if the defendant intended to cause the bank an actual or potential loss.

The bank fraud statute provides that

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.

18 U.S.C. § 1344 (emphasis added). Subsections (1) and (2) are distinct, though often overlapping, offenses. The statute plainly provides that conviction for bank fraud requires proof of subsection (1) or subsection (2), but not both. See, e.g., United States v. Ragosta, 970 F.2d 1085 (2d Cir.1992) (affirming conviction based on subsection (1) only).

The district court instructed the jury on the three essential elements of bank fraud. For the first element, the court summarized the statute but changed it to the conjunctive, thereby erroneously indicating that Chandler could be convicted only if the jury found that she violated both § 1344(1) and § 1344(2): ¹ "In order to prove the defendant guilty [of bank fraud], the [G]overnment must prove .... [that] the defendant knowingly and wilfully executed a scheme or artifice to defraud and to obtain the money or funds from or under the control of a financial institution by means of false or fraudulent representations" (emphasis added). The court explained that the second element is "intent to defraud" and that the third element is that the bank was insured by the Federal Deposit Insurance Corporation.

The court defined the term "scheme or artifice to defraud" ("scheme to defraud") in the first element by stating: "The phrase scheme or artifice to defraud means any deliberate plan or action or course of conduct by which someone intends to deceive or to cheat another or by which someone intends to deprive another of something of value" (emphasis added). The court defined the second element of bank fraud as follows:

Definition of intent to defraud.

To act with an intent to defraud means to act knowingly and with the intention or purpose to deceive or to cheat.

An intent to defraud is accompanied, ordinarily, by a desire or purpose to bring about some gain or benefit to oneself or by a desire or purpose to cause some loss to some person, in this case to the bank.

(Emphasis added.)

During the jury's deliberations, one juror asked the court to define the difference between "fraud" and "defraud" and the foreman asked how the terms "fraud" and "defraud" apply to the bank fraud count. The court reconvened the jury and gave substantially the same bank fraud charge. The court again explained the first element of the offense by restating the statute in the conjunctive. The court repeated word for word its definition of a component of the first element, "scheme to defraud," and of the second element, "intent to defraud," again using the disjunctive "or" rather than the conjunctive "and."

Chandler argues that the court's definition of the first two elements did not require the jury to find intent to harm and that the bank fraud statute requires such a finding. Chandler did not object to the charge below, so we review the charge for plain error pursuant to Federal Rule of Criminal Procedure 52(b).

Plain error (1) is error, (2) is clear or obvious, and (3) affects the substantial rights of the defendant, which generally means that prejudice results. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993); United States v. Birbal, 62 F.3d 456, 461 (2d Cir.1995). If, as here, the error was error under circuit law at the time of trial, the plaintiff bears the burden of persuasion for each of the three requirements for plain error. United States v. Viola, 35 F.3d 37, 42-43 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). When it finds plain error, this court has discretion to grant relief, based on whether the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 732, 113 S.Ct. at 1776 (quotation marks omitted).

Here, we find that there was error. Viewing the error in the context of the charge as a whole, as we must, United States v. Vebeliunas, 76 F.3d 1283, 1290 (2d Cir.1996), we find that the error neither prejudiced the defendant nor diminished her rights.

Since the bank fraud statute was modelled after the mail and wire fraud statutes, precedents interpreting those statutes are helpful in interpreting the...