U.S. v. Begnaud, 85-1578

• Decision Date: 10 February 1986
• Docket Number: No. 85-1578,85-1578
• Parties: UNITED STATES of America, Appellee, v. Michael S. BEGNAUD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 144

783 F.2d 144

UNITED STATES of America, Appellee, v. Michael S. BEGNAUD, Appellant.

No. 85-1578.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1986.

Decided Feb. 10, 1986.

Charles Atwell, Kansas City, Mo., for appellant.

Cynthia Clark Campbell, Asst. U.S. Atty., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ROSS, Circuit Judge.

LAY, Chief Judge.

Michael Begnaud was convicted on nine counts of wire fraud for allegedly obtaining almost $8 million from various federal agencies and credit unions through fraudulent means and converting the money to his own use. Begnaud appeals on the ground that the district court's ¹ instructions to the jury did not correspond to the charges alleged in the indictment. Begnaud asserts that the jury may have convicted him on charges not set forth in the indictment, thus violating his constitutional rights. We find that the trial court's instructions, when taken as a whole, were not improper. We affirm the judgment of the district court.

Background

In November 1984, a grand jury indicted Begnaud on nine counts of wire fraud in violation of 18 U.S.C. Sec. 1343 (1982). ² The Begnaud testified at trial that he had never represented himself as an authorized representative of the Oak Park Credit Union in order to receive deposits. Begnaud further testified that he never represented that the account in which the funds were deposited belonged to the Oak Park Credit Union or that the funds would be federally insured.

                evidence at trial, the sufficiency of which is not challenged on appeal, established that Begnaud approached the Oak Park Credit Union in late 1983 or early 1984, offering to raise money for the small minority-owned credit union.  Begnaud was elected to the board of directors of the Oak Park Credit Union soon thereafter.  Then, allegedly representing himself as the authorized representative of the credit union, Begnaud secured deposits through money brokers from the Bureau of Indian Affairs, Bergstrom Federal Credit Union, and T.I.C. Federal Credit Union.  Begnaud instructed the brokers to deposit these funds in a bank account he had opened in the name of "Oak Park Community C.U. Funding Account."    Begnaud had designated himself as the authorized signatory, director, and secretary of the account and listed as the federal tax identification number of the account the number assigned to the Oak Park Credit Union.  Begnaud allegedly used some of the money deposited in this account to make loans, investments, and various personal purchases.  In March 1984, after investigating rumors that brokered funds supposedly ordered by the Oak Park Credit Union had not been deposited in the credit union's account, the Missouri State Division of Credit Unions took control of the Oak Park Credit Union and froze Begnaud's accounts
                

At the close of all the evidence, the district court instructed the jury on the elements of the crime of wire fraud under Count One as follows:

The crime of wire fraud as charged in count I of the indictment, has five essential elements which are, one, that the defendant made up a plan or scheme to defraud; two, in furtherance of said plan or scheme to defraud the defendant made certain false pretenses, statements or representations and that at the time he made such false pretenses, statements or representations he knew that they were false; three, that the false pretenses, statements or representations related to something important to the plan; four, that on or about January 26 of 1984, for the purpose of carrying out such plan or scheme, the defendant caused sounds or signals to be transmitted by means of interstate wire which resulted in the transfer of funds belonging to the United States Bureau of Indian Affairs in an amount of $5,267,000 from the United States Treasury Department, Federal Reserve Bank, New York, New York, to the account of Mark Twain Bank South, Kansas City, Missouri, and; five, the defendant acts [sic] with the intention of obtaining money by false Begnaud's counsel objected to this instruction on the ground that each count charged in the indictment set forth two specific misrepresentations allegedly made by Begnaud, whereas the jury instructions allowed the jury to convict Begnaud on the basis of any "false pretenses, statements or representations related to something important to the plan." The district court overruled Begnaud's objection and the jury returned a verdict against Begnaud on all nine counts.

pretenses, statements or representations. ³

Discussion

The thrust of Begnaud's contention on appeal is that the district court's instructions on the elements of wire fraud constructively amended the indictment and allowed the jury to convict him of charges not alleged in the indictment. ⁴ Begnaud thus asserts that his conviction violates the principle that a defendant may not be tried on charges not made in the indictment. See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); United States v. Yeo, 739 F.2d 385, 387 (8th Cir.1984). We disagree.

In cases in which courts have found a constructive amendment of an indictment by virtue of the trial court's instructions to the jury, the instructions in effect allowed the jury to convict the defendant of an offense different from or in addition to the offenses alleged in the indictment. For example, in Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960), the leading case on constructive amendments of indictments, the grand jury indicted Stirone on a charge of obstructing shipments of sand into Pennsylvania by means of extortion in violation of the Hobbs Act. The prosecution, however, also introduced evidence that the defendant had obstructed the export of steel out of Pennsylvania through extortion. The trial court instructed the jury that it could convict Stirone if it found that Stirone had obstructed shipments of sand into Pennsylvania or obstructed shipments of steel out of Pennsylvania through extortion. The Supreme Court reversed Stirone's conviction because it concluded that the jury might have convicted Stirone of using extortion to obstruct steel exports out of Pennsylvania, a separate offense not alleged in the indictment. Stirone, 361 U.S. at 217-19, 80 S.Ct. at 273-74.

Similarly, in United States v. Yeo, 739 F.2d 385 (8th Cir.1984), this court reversed the conviction of a defendant indicted for extortion in the collection of a debt from one Jim Crouch. Because the trial court instructed the jury that it could convict the defendant if it found that the defendant used "extortionate means to collect from Jim Crouch or another," this court concluded that the jury may have convicted the defendant of extortion in collecting a debt from someone other than Jim Crouch, a crime different from that for which the defendant was indicted. Id. at 386-87 (emphasis added in Yeo ).

In contrast, Count One of Begnaud's indictment and the district court's instruction to the jury on the elements of Count One charged Begnaud with the same offense: using wire communications to It is enough to repeat that the gist of the offense, the use of the mails, was proved, and the scheme to defraud was proved substantially as allegated [sic]. All the allegations relative to false representations need not be proved as a part of the scheme. A scheme to defraud is necessarily made up of numerous elements, no particular one of which need be proved if sufficient is shown to constitute the scheme.

                willfully and knowingly effect the transfer of $5,267,000.00 through a scheme or artifice to defraud.  The precise misrepresentations allegedly made by Begnaud in furtherance of the fraudulent scheme did not need to be set forth in the jury instructions any more than did every other precise detail of the allegedly fraudulent scheme contained in the indictment, such as the fact that Begnaud opened two bank accounts on January 20, 1984, or the fact that Begnaud was appointed to the board of directors of the Oak Park Credit Union. 5   As this court stated long ago in Holmes v. United States, 134 F.2d 125 (8th Cir.), cert. denied, 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722 (1943): 6
                

Id. at 133; see also United States v. West, 549 F.2d 545, 552 (8th Cir.), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977) (citing Holmes ); Baker v. United States, 115 F.2d 533, 542 (8th Cir.1940), cert. denied, 312 U.S. 692, 61 S.Ct. 711, 85 L.Ed.2d 1128 (1941) (same). We therefore conclude that the trial court's instructions to the jury on the elements of wire fraud did not constitute a constructive amendment of the indictment. ⁷

We also reject Begnaud's contention that a fatal variance resulted from the fact that the indictment set forth two specific representations Begnaud allegedly made in furtherance of his scheme to defraud whereas the prosecution offered evidence of, and the court's instructions allowed the jury to consider, other misrepresentations allegedly made by Begnaud. ⁸ A...