U.S. v. Hord

• Decision Date: 22 October 1993
• Docket Number: No. 91-6261,91-6261
• Citation: 6 F.3d 276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas James HORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 276

6 F.3d 276

62 USLW 2322

UNITED STATES of America, Plaintiff-Appellee, v. Douglas James HORD, Defendant-Appellant.

No. 91-6261.

United States Court of Appeals Fifth Circuit.

Oct. 22, 1993.

Marjorie Meyers and Richard Frankoff, (court-appointed) Houston, TX, for defendant-appellant.

James L. Turner, Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING and BARKSDALE, Circuit Judges, and PARKER, District Judge. ¹

BARKSDALE, Circuit Judge:

This appeal concerns, inter alia, multiplicious convictions for bank fraud, and turns, once again, on the question of when a "scheme" is "executed" for purposes of the bank fraud statute, 18 U.S.C. Sec. 1344(a)(1). Douglas James Hord was convicted on 19 counts: nine for executing and attempting to execute a scheme to defraud a federally insured bank, in violation of Sec. 1344(a)(1); and ten for making false statements to the bank, in violation of 18 U.S.C. Sec. 1014. He was sentenced, inter alia, to 19 concurrent six-month terms of imprisonment. We AFFIRM IN PART and REVERSE and VACATE IN PART.

I.

Hord's convictions arose from a series of bank transactions involving bogus checks, ² in which he participated in 1988. ³ The transactions for which Hord was indicted began in April 1988. ⁴ Using a $300 check drawn on his account at First Interstate Bank, Hord opened a checking account at National Bank of Texas (NBT) in Houston on April 20, 1988. He explained to the account representative that he was an attorney, and would be using the account as a trust account to probate the estate of a Florida client.

Between April 21 and 26, 1988, five deposits were made to the account. Hord first deposited three bogus checks into the NBT account. The checks, accompanied by a deposit slip and totalling $9,634.96, were made payable to the estate of Winifred Mae Hunter. Later, Hord deposited another bogus check for $4,138, again using a deposit slip. Again, the check was payable to the Hunter estate. Bank employees immediately suspected a problem with the checks; they were poorly printed on poor-quality paper, and had incorrect routing numbers. Bank management notified the FBI, and told the employees to continue accepting the checks, but to refuse to clear them or tell Hord that he was under suspicion.

A few days later, Hord deposited three more bogus checks, totalling $68,549.70, with a deposit slip. Three additional bogus checks were also deposited into the account that day, by Hord or someone else: one check for $82,500 in the first transaction; two, totalling $57,425, in the second. ⁵

Hord tried to make three withdrawals from the NBT account. On April 22, he deposited a check for $16,000, drawn on the NBT account, into his account at MBank. It was later returned unpaid. And, on or about April 26, he tried first to withdraw $1,000; he was told the funds had not yet cleared. Later, he requested $250 at the drive-in window. Again, the bank refused to allow him to make a withdrawal.

NBT was insured by the FDIC, which closed NBT in May 1988. Sometime after this, First Interstate Bank returned to NBT the $300 check Hord had used to open the NBT account, because there were insufficient funds in Hord's First Interstate account. Hord received notice of a "charge back" for $300, as well as a charge back for a $8,100 check drawn on a Florida bank, and payable to Winifred Mae Hunter, estate trustee. NBT also advised Hord by letter that his account had been closed and his records subpoenaed by the FBI.

Hord was indicted in July 1990 on nine counts of executing and attempting to execute a scheme to defraud NBT, in violation of 18 U.S.C. Sec. 1344(a)(1); and ten counts of making false statements to NBT, in violation of 18 U.S.C. Sec. 1014. A jury convicted him on all 19 counts. After the verdict, the government moved for a downward departure in sentencing, based on Hord's assistance in the investigation and possible prosecution of Williams. See U.S.S.G. Sec. 5K1.1(a). The trial court overruled Hord's objections to the presentence report, but agreed to depart downward in accordance with the government's recommendation. The applicable guidelines range for sentencing was a term of imprisonment of 18-24 months. After the downward departure, Hord was sentenced to six months in prison on each of the 19 counts, running concurrently. He was also ordered to pay $2,438.45 in restitution, ⁶ and a special assessment of $50 per count (totalling $950). Finally, Hord was sentenced to a two-year term of supervised release following his imprisonment on counts one-nine, to run concurrently with a one-year term of supervised release for counts ten-nineteen.

II.

Hord contends that the nine bank fraud charges under Sec. 1344 were multiplicious, with the sentences imposed as a result violating the double jeopardy clause of the Fifth Amendment; and that his convictions on the ten false statement counts must be reversed, and those counts dismissed, because the government failed to allege or prove a violation of Sec. 1014. ⁷

A.

Count one of the indictment charged that Hord had executed the scheme by opening a trust account at NBT; counts two-six, that he had executed the scheme by making the five deposits, or causing them to be made; and counts seven-nine, that he had attempted to execute the scheme by attempting to withdraw funds from the account on three occasions (on or about April 22 and 25).

Hord contends that all nine counts relate to the same offense--a single scheme to defraud a single financial institution. Before trial, he moved, as required, to consolidate all nine counts on the ground that they were multiplicious; the district court denied the motion. Because, as hereinafter discussed, we agree that counts one and seven-nine were multiplicious, we reverse those convictions and vacate the sentences imposed pursuant to them. ⁸ We affirm the convictions and sentences imposed pursuant to counts two-six.

Following Hord's conviction, we have had occasion to review the issue of multiplicity under the bank fraud statute. See, e.g.,United States v. Lemons, 941 F.2d 309 (5th Cir.1991) (per curiam). An indictment that charges a single offense in more than one count is multiplicious. Id. at 317. The primary danger created by such an indictment is that the defendant may receive more than one sentence for a single offense, in violation of the double jeopardy clause. Id. (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985)). We review such issues de novo. See, e.g.,United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir.1993) (per curiam).

The crux of any argument that convictions are multiplicious is, of course, what constitutes the offense charged. " 'Whether a continuous transaction results in the commission of but a single offense or separate offenses ... is determined by whether separate and distinct prohibited acts, made punishable by law, have been committed.' " Swaim, 757 F.2d at 1536 (quoting United States v. Shaid, 730 F.2d 225, 231 (5th Cir.), cert. denied, 469 U.S. 844, 105 S.Ct. 151, 83 L.Ed.2d 89 (1984)), quoted inLemons, 941 F.2d at 317. Therefore, our first task is to review what constitutes the offense of bank fraud under Sec. 1344. ⁹

In Lemons, we noted that "the bank fraud statute imposes punishment ... for each execution of the scheme" to defraud, rather than for each act in execution of the scheme. 941 F.2d at 318 (emphasis added). Lemons involved a fraudulent scheme to, inter alia, procure $212,000 from a single financial institution; however, the defendant received the money in a series of transactions occurring over the course of several months. Id. We held that the incremental movement of the benefit to the defendant was "only part of but one performance, one completion, one execution of that scheme." Id. Similarly, in United States v. Heath, 970 F.2d 1397, 1402 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993), we found a single execution of a scheme to defraud, although the scheme involved procuring two separate loans from a single financial institution. A critical factor in our holding in Heath that there had been but a single execution of the scheme was the fact that the two loans were integrally related; neither could have succeeded without the other. Id.

In Hord's case, the scheme to defraud, as stated in the indictment,

consisted essentially of a plan to deposit forged and counterfeited checks in a trust account opened in the name of ... HORD and to withdraw the money credited to that account as a result of those deposits.

The government concedes, and we agree, that opening the account (count one) did not constitute an execution of the scheme, but was instead only a necessary act in preparation of the scheme. We, therefore, hold that count one is multiplicious.

The transactions for which Hord was indicted are five deposits (counts two-six), and three attempts to withdraw part of those deposits (counts seven-nine). As stated, counts seven-nine (withdrawal attempts) are multiplicious. It is the deposits, not Hord's withdrawal attempts, that constitute executions of the scheme. The attempted withdrawals were integrally related to the deposits, and could not have succeeded without them. SeeHeath, 970 F.2d 1397. Further, the deposits, without more, satisfy Sec. 1344's prohibition against "execut[ing], or attempt[ing] to execute, a scheme or artifice" to defraud the bank. 18 U.S.C. Sec. 1344. While the term "scheme to defraud" in Sec. 1344 is not "capable of precise definition", United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.1987), cited inLemons, 941 F.2d at 315, we have no doubt that Hord's making deposits using bogus checks with forged signatures and in the name of a fictitious payee,...