U.S. v. Key, No. 95-8052

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before EDMONDSON, DUBINA and BARKETT; PER CURIAM
• Citation: 76 F.3d 350
• Parties: 43 Fed. R. Evid. Serv. 1154 UNITED STATES of America, Plaintiff-Appellee, v. Michael KEY, Defendant-Appellant.
• Docket Number: No. 95-8052
• Decision Date: 28 February 1996

Page 350

76 F.3d 350 43 Fed. R. Evid. Serv. 1154 UNITED STATES of America, Plaintiff-Appellee,
v.
Michael KEY, Defendant-Appellant. No. 95-8052. United States Court of Appeals,
Eleventh Circuit. Feb. 28, 1996.

Page 352

Marcia G. Shein, Atlanta, GA, for appellant.

Kent Alexander, U.S. Atty., Bryan J. Farrell, Asst. U.S. Atty., Atlanta, GA, for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Michael Key appeals his conviction on charges of bank fraud under 18 U.S.C. § 1344 and making false statements on a loan application under 18 U.S.C. § 1014. He contends that there was insufficient evidence to convict him, that the government improperly introduced evidence of earlier bad acts, that the district court abused its discretion by denying a continuance, and that his sentences for bank fraud and making false statements are multiplicitous. ¹ We see no error and affirm the convictions.

I.

Key visited the Trust Company Bank ("Trust Company" or the "bank") in 1990 seeking a residential loan. Trust Company is federally insured, as indicated by several signs posted inside the bank. Key met with an officer of the bank for a loan application. Later, Key filled out the loan application but used the name of his deceased brother. He indicated on the application that the applicant had no outstanding civil judgments against him, when in fact Michael Key had several. The Trust Company Bank name and logo appeared in large print on the loan application. No other financial institution was named on the application.

The record is vague on the events that transpired thereafter, but the facts appear to be as follows. The loan application was sent by Trust Company to SunTrust Mortgage, Inc., a non-federally insured institution. SunTrust had responsibility for processing the loan application and verifying the information contained in it, but final approval of the loan was made after involvement by officers at both entities. The check presented to Key's attorney at the closing named Trust Company Bank as the drawee bank. Some time after the loan proceeds were disbursed

Page 353

to Key, SunTrust sold the mortgage to Trust Company, in accordance with a standing arrangement between the institutions.

After his arrest, Key was tried before a jury in the Northern District of Georgia and convicted of the counts named above.

II.

Key asserts that his convictions for bank fraud and making false statements cannot stand because the government failed to prove he intended to victimize a federally-insured financial institution. Proof of federally-insured status of the affected institution is, for both section 1344 and section 1014, a jurisdictional prerequisite as well as an element of the substantive crime. E.g., United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir.1979). Whether the defendant knew of the victim institution's insured status is not important. That the defendant knowingly directed his conduct at a bank that the government can prove was insured is enough. See United States v. Bowman, 783 F.2d 1192, 1198 (5th Cir.1986) (citing United States v. Lentz, 524 F.2d 69 (5th Cir.1975)). ² Key challenges the sufficiency of the evidence only insofar as the insured status of the victim bank is concerned; he does not otherwise question that his conduct does come within section 1344 and section 1014. ³

Whether the government proved the jurisdictional element is measured as a challenge to the sufficiency of the evidence. United States v. Schultz, 17 F.3d 723, 725 (5th Cir.1994). For appellants, that standard, "though more lenient than the plain error standard, is still quite formidable." Id. All evidence and inferences therefrom are viewed in the light most favorable to the verdict. Id.

The issue is whether Key knew...