U.S. v. Means, 81-4391
| Citation | 695 F.2d 811 |
| Decision Date | 03 January 1983 |
| Docket Number | No. 81-4391,81-4391 |
| Parties | 12 Fed. R. Evid. Serv. 249 UNITED STATES of America, Plaintiff-Appellee, v. James H. MEANS and Edgar C. Lloyd, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Earl Keyes, Jackson, Miss., for Rep. Means.
Samuel H. Wilkins, L.C. James, Jackson, Miss., for Rep. Lloyd.
James B. Tucker, Jerry A. Davis, Asst. U.S. Attys., Jackson, Miss., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Mississippi.
Before RUBIN, RANDALL and JOLLY, Circuit Judges.
I. INTRODUCTION
On July 20, 1981, after pleas of not guilty, Edgar C. Lloyd, Jr., and James H. Means were found guilty by a jury on three counts of mail fraud, fraud by wire, and aiding and abetting. The conduct with which the defendants were charged generally involved the use of their influence in obtaining banking charters from the State of Mississippi in exchange for money. During the time in question defendant Means was serving as Bank Comptroller for Mississippi. Lloyd was his friend and a former business associate.
Lloyd was sentenced on count 1, mail fraud, to 5 years, with 38 months suspended, leaving 22 months to serve, and a fine of $1,000. On counts 2 and 3, he was given a suspended 5-year sentence and fined $1000 on each count. Means was given the identical sentence except that he was given a 44-month suspension on count 1, thus having to serve 16 months.
Despite the vigorous and forceful efforts by counsel for both defendants in this case, we cannot find that there was insufficient evidence to support the jury verdict nor do we find any reversible errors committed by the trial court. The judgment is therefore affirmed.
II. FACTS
For purposes of clarity we will discuss separately the facts as they pertain to each defendant. In recounting the evidence below, we are required to take the view most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Bound by this standard there is certainly substantial testimony and other evidence, although disputed in several respects by the appellants, which supports the following version of the facts.
In October 1974, the five-member State Banking Board conducted a 3-day hearing on the application for incorporation of Singing River Bank [hereinafter "SRB"] in Moss Point, Mississippi. The application had been pending since October 1973.
Evidence was presented to show that during the course of the hearing, Lloyd approached the SRB attorney who testified that Lloyd told him he was a friend of Means's and that he, Lloyd, would help get the charter. According to the SRB attorney, Lloyd said that, without his help, SRB would not get a charter. Lloyd indicated he would use his influence in exchange for $50,000-worth of stock in SRB with the understanding that the stock would be bought back within 2 years for $100,000.
The SRB attorney talked with bank officials and told Lloyd that they would accept his offer. The acceptance occurred during the October 1974 hearing.
Lloyd admitted that he had an agreement with the SRB attorney but denied representing that the charter would not be forthcoming without his help.
Subsequently, on October 24, 1974, Means signed the charter for SRB. SRB was still required to raise sufficient capital by selling their stock, after which the certificate to do business would be issued.
During this time period, the majority stockholders for First Mississippi Bank of Commerce [hereinafter "FMBC"] in Booneville, Mississippi, including the bank president, became concerned about their application for a branch office in Walnut, Mississippi, which had been pending since July 1974 in Means's office. 1 The delay was explained by Means to be the result of local opposition.
The FMBC president went to see Lloyd, believing that he could exert influence in such matters, and, after two meetings, raised $25,000 cash to be paid to Lloyd.
In early February 1975, a meeting was held at the Sheraton Motor Inn in Jackson, Mississippi. While those present were in the room, a call came in and the FMBC president said, "Ed is waiting." Although no one testified to having seen the $25,000 handed to Lloyd, he was seen on and about the premises, the money had been brought for him, and it did not go back with the men who brought it.
Part of the $25,000 was raised by a check from the FMBC president to "cash" for $5,000. The check was dated February 3, 1975.
On February 3, 1975, Means signed the FMBC application for the Walnut branch. Lloyd admitted talking to Means about the Walnut branch. He also admitted that the president had asked for his help but he denied any payoff.
During this time SRB was trying to sell stock in order to raise the necessary capital. Lloyd needed $50,000 to purchase the SRB stock. Although he was not a friend of the FMBC president or a customer with FMBC, Lloyd contacted the FMBC president who agreed to loan him the $50,000.
A vice president of FMBC was instructed to meet with Lloyd at the Jackson Sheraton where, on July 2, 1975, Lloyd filled out the loan papers and received a deposit slip for $50,000. The note was secured by the stock, which Lloyd told the vice president that day was worth $20-per share. However, Lloyd purchased 5,000 shares of SRB stock at $10-per share.
Although the loan occurred on July 2, 1975, it was not reflected on FMBC's books until August 4, 1975. On that date Means signed the certificate authorizing SRB to begin business as a bank.
At some point during 1976, Lloyd's $50,000 FMBC loan came due, and according to testimony, he began making demands on the SRB attorney for the $100,000 repurchase of SRB stock. The attorney could not raise the money, but did succeed in arranging a $60,000 loan for Lloyd, with the stock as collateral, from Southern National Bank in Birmingham, Alabama. SRB sponsored the loan. Lloyd was not a customer of either SRB or Southern National.
The count 1 essential mailing is the SRB letter to Southern National Bank requesting the loan and enclosing Lloyd's financial statement. The entire loan process was handled by mail and telephone.
Pending approval of the Southern National Bank loan, Lloyd demanded an immediate advance of $10,000 from the SRB attorney. On October 1, 1976, $10,000 was wired from SRB's account with correspondent Hancock Bank in Gulfport, Mississippi, to Lloyd's checking account in Jackson. That same day, a telephone conversation occurred between Southern National Bank and SRB indicating approval of the $60,000 Lloyd loan.
This telephone conversation constitutes the count 2 essential wire.
On October 8, 1976, Southern National Bank disbursed $60,000 to Lloyd. Of that amount, $50,000 went to FMBC as partial payment on the loan used to purchase the SRB stock. The remaining $10,000 went to Hancock Bank to pay off the advance.
On October 11, 1976, Lloyd paid Means $4,200. Means converted this to a cashier's check, which he cashed. Lloyd agrees that the $4,200 paid to Means came out of the $10,000 advance from SRB. Lloyd testified that this $4,200 was part of a real estate deal between Means and Lloyd.
The next day, on October 12, 1976, Means authorized the opening of SRB's Pascagoula branch.
A few months later, Lloyd renewed his demand for the $100,000 from SRB's attorney. This time the attorney got a co-stockholder at SRB to borrow $100,000 from Southern National Bank to buy Lloyd's stock. From the proceeds of that loan Southern National Bank was repaid $60,855.30, which canceled the Lloyd note.
The count 3 essential wire is the December 9, 1976, wiring of the payment of the $60,000 Lloyd note from the correspondent Hancock Bank to Southern National Bank.
The SRB attorney received the remaining $39,144.70, which he converted to a cashier's check, payable to Lloyd, for $39,126.80. 2
On December 9, 1976, the SRB attorney delivered the cashier's check to Lloyd. Evidence was presented to show that the next afternoon, after 5:15 p.m., Means called the president of Fidelity Bank in Jackson, requesting a favor and saying that he needed some cashier's checks. Means and Lloyd went into the bank. Means had the check payable to Lloyd for $39,126.80. Means had the check broken down into several smaller checks. According to the evidence introduced by the government at trial, there was essentially an even-split of the check. 3
Lloyd's position regarding the payment to Means was that this was part of an $18,000 loan to Means.
James H. Means served as Bank Comptroller for the State of Mississippi during the relevant time period. He supervised the State Department of Banking which had responsibility for all banking activities in the state, including bank charters for new banks and permits for branch banks.
At some point during the October 8-10, 1974, hearing on the SRB charter, Lloyd contacted the SRB attorney and said that "he was friends with the comptroller and he [Lloyd] could get us this charter." The financial arrangement discussed above was agreed to, and on October 24, 1974, one year after its filing, the SRB charter application was granted by Means.
During this period, according to testimony, FMBC made its deal with Lloyd, with the $25,000 payment being brought on or about February 3, 1975, to the Sheraton Motor Inn in Jackson. There was testimony that, at one point, Means came into the room where three of the FMBC bankers were waiting, although not at the same time that Lloyd was there. Although no one claims to know what happened to the money, the men who brought it did not take it back to Booneville with them.
Means signed the FMBC branch permit on February 3, 1975. The permit had been pending since July 1974. Lloyd discussed the branch application with Means. Means stated that the reason for the delay was that there was local opposition to the branch.
On August 4, 1975, Means signed...
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