U.S. v. Lam, 03-1415.

• Decision Date: 04 August 2003
• Docket Number: No. 03-1415.,03-1415.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric K. LAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

338 F.3d 868

UNITED STATES of America, Plaintiff-Appellee, v. Eric K. LAM, Defendant-Appellant.

No. 03-1415.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2003.

Filed: August 4, 2003.

Stephen C. Moss, Kansas City, MO, for appellant.

Paul S. Becker, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

MELLOY, Circuit Judge.

Eric K. Lam was convicted by a jury of one count of conspiracy to commit bank fraud, 18 U.S.C. § 371, and six counts of bank fraud, 18 U.S.C. § 1344, based on an alleged check-kiting scheme involving three federally insured banks. At the close of the government's case-in-chief, and again in a post-trial motion, Lam moved for judgment of acquittal. The district court¹ denied the motion. Lam appeals, arguing that: (1) the government failed to prove the fraudulent representations essential to bank fraud; and (2) the government failed to prove the identity of Lam as the perpetrator of the charged bank transactions in the substantive fraud counts. We affirm the district court.

I.

"In considering a district court's denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." United States v. Big Crow, 327 F.3d 685, 688 (8th Cir.2003) (internal quotations omitted). In this case, the government established the following in support of its allegation that Lam and two co-conspirators devised and conducted a check-kiting scheme involving three federally insured banks: First Bank of Missouri, Commerce Bank, and United Missouri Bank.

On October 4, 2000, Lam opened a bank account at each of the three named banks with an initial $100 cash deposit. On October 10, 2000, Lam and his two accomplices began making deposits into and withdrawals from the accounts. They continued to make deposits and cash checks on the accounts until October 17, 2000. Many of the transactions involved "split deposits" in which Lam would present a deposit check for several thousand dollars but ask for a significant portion back in cash.² A total of thirty-one checks totaling $37,721.11 were deposited into the three accounts from October 10 to October 16, 2000. Twenty-one of the checks were returned for insufficient funds, totaling $36,848.11. Thus, the net deposit in all the accounts was $873. The government's expert concluded that between October 10 and October 17, 2000, Lam received approximately $25,000 from the scheme.

The proof of the check kiting scheme consisted of testimony from bank personnel, and an IRS Special Agent who analyzed the accounts and the bank records of deposits and withdrawals from the accounts. The testimony and the exhibits showed multiple banking transactions at different branches of the same banks throughout the week of October 10, 2000. Some of the transactions involved checks written from one Lam account to another or to one of his accomplices, some involved check deposits drawn on closed accounts from several banks, including Wells Fargo, in the name of Minh Nguyen, and others involved traveler's checks purchased with funds from one of Lam's accounts. Sandra Torrey, a bank teller, specifically identified Lam as the person who conducted a transaction at a branch of the First Bank of Missouri.³ Ms. Torrey later alerted police, on October 17, 2000, by which time Lam's account had been frozen, that Lam had just left the branch office after picking up blank deposit slips and unsuccessfully attempting to use a branch ATM. Using the information and vehicle description she provided, police located Lam, with two other men, four blocks away at a branch of the Commerce Bank. Lam and the two others were arrested, and a pad of blank checks in the name of Minh Nguyen was found in the car.

At the close of the government's case, Lam made a written motion for judgment of acquittal. Lam claimed that the government had failed to prove that he was the person who executed the scheme to defraud the banks, and that Ms. Torrey's identification to an uncharged transaction was not sufficient to establish his role in the charged offenses. The district court denied the motion, finding sufficient circumstantial evidence to establish Lam's part in the charged fraud transactions.

Lam subsequently testified on his own behalf, during which he admitted opening the three bank accounts, and depositing checks and traveler's checks into the accounts every day during the week of October 10, 2000. The defense theory of the case was that Lam was an unknowing pawn in a scheme by Heip Vu, one of the men with whom he was arrested on October 17. Lam testified that he believed the checks were valid payment for two diamond rings from his previous marriage that he was selling to Vu for $10,500, and that Vu had instructed him to open three accounts to facilitate faster payment by multiple small checks rather than one large check. According to Lam, Vu told him he could keep the rings as collateral until the payment checks cleared the bank. Lam admitted going to multiple bank branches every day to conduct transactions. He further admitted receiving significantly more cash from the transactions than the $10,500 that he claims Vu owed him for the rings.

Lam was convicted of all charges. In a post-trial motion for judgment of acquittal, Lam renewed his challenge that the government had not properly identified him as the perpetrator of the substantive fraud charges. Lam also argued that the government indicted, and prosecuted him, only under subsection two of 18 U.S.C. § 1344,⁴ and failed to prove the false or fraudulent representation or promise required under that subsection. Lam argued that the government's reliance on subsection one — which would encompass a check-kiting scheme-was a post-hoc justification which violated his due process rights under the Fifth Amendment because he was unaware that the government was proceeding under that theory of prosecution. The district court rejected Lam's contention that the government had changed tack, finding instead that the government had from the beginning alleged, and prosecuted, a § 1344(1) "scheme to defraud" the banks by means of a check kiting scheme.

II.

Lam's appeal from the denial of his motion for judgment of acquittal challenges the sufficiency of the evidence on all counts. To prevail, Lam "must show that the evidence presented by the government was not sufficient to permit a reasonable jury to find him guilty beyond a reasonable doubt." United States v. Hart, 212 F.3d 1067, 1070-71 (8th Cir.2000) (citations omitted); see also Big Crow, 327 F.3d at 688 ("We will uphold the conviction unless no reasonable jury could have found the defendant guilty beyond a reasonable doubt.") (internal quotations omitted). After careful review of the record, including the indictment and trial transcript, we conclude that the district court properly denied Lam's motion.

With regard to Lam's argument that the government failed to present sufficient evidence of identity to sustain the bank fraud charges, we agree with the district court that circumstantial evidence in this case was sufficient for a reasonable jury to conclude beyond a reasonable doubt that Lam was the perpetrator of the...