U.S. v. Bouyea

• Decision Date: 10 August 1998
• Docket Number: Docket No. 97-1169
• Citation: 152 F.3d 192
• Parties: UNITED STATES of America, Appellee, v. Jeffrey P. BOUYEA, Defendant-Appellant, Robert Michael Bouyea, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

Page 192

152 F.3d 192

UNITED STATES of America, Appellee, v. Jeffrey P. BOUYEA, Defendant-Appellant Robert Michael Bouyea, Defendant.

Docket No. 97-1169.

United States Court of Appeals Second Circuit.

Argued Jan. 5, 1998.

Decided Aug. 10, 1998.

Dan E. Labelle, Owens, Schine & Nicola, Trumbull, Connecticut, for Defendant-Appellant.

Nora R. Dannehy, Assistant United States Attorney, Hartford, Connecticut (Christopher F. Droney, United States Attorney for the District of Connecticut, Hartford, Connecticut, Mark G. Califano, Assistant United States Attorney, New Haven, Connecticut, on the brief), for Appellee.

Before: VAN GRAAFEILAND and WALKER, Circuit Judges, and KOELTL, District Judge ^*.

PER CURIAM:

Defendant-appellant Jeffrey P. Bouyea appeals from the judgment of the United States District Court for the District of Connecticut (Alfred V. Covello, Chief District Judge ), convicting him, after a jury trial, of one count of bank fraud, in violation of 18 U.S.C. § 1344, and of one count of wire fraud, in violation of 18 U.S.C. § 1343. On appeal, he claims, inter alia, that there was insufficient evidence supporting his conviction for wire fraud, and that his conviction for bank fraud must be vacated because of prejudicial spillover from evidence introduced in support of the wire fraud conviction. On January 27, 1998, we rejected these contentions and affirmed the judgment of the district court by unpublished summary order. See United States v. Bouyea, No. 97-1169, 133 F.3d 908, 1998 WL 29818, at * 1 (2d Cir. Jan. 27, 1998). Bouyea petitioned for rehearing. On July 16, 1998, we entered an order denying Bouyea's petition and withdrawing our previously entered summary order. See United States v. Bouyea, No. 97-1169 (2d Cir. July 16, 1998) (order denying rehearing and withdrawing summary order). We now issue this opinion explaining our judgment of affirmance.

BACKGROUND

On February 22, 1996, a federal grand jury returned a three-count indictment charging Bouyea and one co-defendant with two counts of bank fraud and one count of wire fraud. The first bank fraud count alleged that Bouyea engaged in a scheme to defraud Chester Bank by causing Chester Bank to lend money on the basis of forged, false, and fraudulent documents. The second count charged Bouyea with wire fraud for using an interstate facsimile transmission to fraudulently obtain $150,000 in money and property from the Center Capital Corporation ("Center Capital") in a manner affecting Centerbank, a financial institution of which Center Capital is a wholly-owned subsidiary. The third count of the indictment charged Bouyea with bank fraud for devising a scheme or artifice to defraud Founders Bank, a financial institution.

On November 7, 1996, after a five day trial, a jury returned a verdict of guilty on counts two and three, but acquitted the defendants on the first count. The district court denied Bouyea's post-trial motions for a judgment of acquittal, see Fed.R.Crim.P. 29, and, in the alternative for a new trial, see Fed.R.Crim.P. 33. On February 12, 1997, the district court sentenced the defendant, in principal part, to thirty months' imprisonment, and ordered restitution in the amount of $450,000.

Bouyea appealed, claiming principally that (1) the wire fraud conviction should be reversed because the evidence was insufficient to support the necessary jury findings of intent and materiality; and (2) the bank fraud conviction should be vacated on grounds of "retroactive misjoinder" or "prejudicial spillover" from the wire fraud conviction. On December 22, 1997, Bouyea filed, with leave of this court, a supplemental letter brief positing that his conviction for wire fraud should be reversed because there was insufficient evidence that the fraud against Center Capital "affected a financial institution" within the meaning of 18 U.S.C. § 3293(2).

After hearing oral argument, we affirmed by summary order on January 27, 1998. On June 12, 1998, Bouyea filed a petition for rehearing. On July 16, 1998, we denied this petition as untimely. See United States v. Bouyea, No. 97-1169 (2d Cir. July 16, 1998) (order denying rehearing and withdrawing summary order). Nonetheless, Bouyea pointed out certain matters that led us to withdraw our previously entered summary order. See id. We now issue this published opinion in its stead.

DISCUSSION

In considering Bouyea's challenge to the sufficiency of the evidence supporting his wire fraud conviction, we review the evidence "in the light most favorable to the Government." United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994). All inferences from the evidence and issues of credibility must be resolved in favor of the verdict. See United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir.1995); Amato, 15 F.3d at 235. Bouyea bears "a heavy burden." United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994).

First, Bouyea argues that there is insufficient evidence to prove "intent" and "materiality." In order to convict Bouyea of wire fraud, the government was obligated to prove that he devised a scheme "to defraud, or for obtaining money or property by means of false or fraudulent pretenses, or promises ...," and that he used interstate wires or communications to execute the scheme. 18 U.S.C. § 1343. In addition, the government had to prove that Bouyea had a fraudulent intent. United States v. D'Amato, 39 F.3d 1249, 1257 (2d Cir.1994); United States v. Starr, 816 F.2d 94, 98 (2d Cir.1987). The false representation or failure to disclose must relate to material information. See United States v. Mittelstaedt, 31 F.3d 1208, 1216-17 (2d Cir.1994). The government presented more than sufficient evidence for a rational juror to conclude that Bouyea engaged in a scheme to defraud Center Capital; that Bouyea made misstatements in furtherance of that scheme; that he knew of the misstatements and intentionally made them in order to get a loan from Center Capital; that those misstatements were material; and that Bouyea used the interstate wires (that is, a facsimile machine) in order to effectuate his scheme. Accordingly, we decline to reverse the wire fraud conviction on this ground.

The second question is whether the evidence supported the jury's conclusion that Bouyea's scheme "affected a financial institution." Normally, conviction under the federal wire fraud statute does not require proof of an effect on a financial institution. See 18 U.S.C. § 1343 (effect on financial institution not an element of the offense, but where "violation affects a financial institution" heightened penalties apply). A five-year statute of limitations generally applies to the filing of a wire fraud indictment. See 18 U.S.C. § 3282. However, "if the offense affects a financial institution," then a ten-year statute of limitations applies. 18 U.S.C. § 3293(2). In the present case, the indictment was filed six years after the wire fraud took place. Therefore, the district court charged the jury that in order to convict, the government was required to prove that Bouyea's wire fraud against Center Capital affected a financial institution.

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