U.S. v. Sher, 81-1317
| Decision Date | 05 August 1981 |
| Docket Number | No. 81-1317,81-1317 |
| Citation | 657 F.2d 28 |
| Parties | UNITED STATES of America, Appellant, v. SHER, Michael. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Robert J. Cindrich, U. S. Atty., Paul J. Brysh, Edward J. Schwabenland, Asst. U. S. Attys., Thomas M. Fallert, Legal Intern, Pittsburgh, Pa., for appellant.
Michael W. Zurat, Mullen & Zurat, Pittsburgh, Pa., for appellee.
Before ALDISERT and WEIS, Circuit Judges, and RE, Chief Judge. *
Michael Sher was indicted by a grand jury in the Western District of Pennsylvania for a violation of 18 U.S.C. § 1014. 1 The indictment charged Sher with conducting a "check-kiting" scheme by depositing worthless checks in two different banks, alternatively covering each check with another worthless check drawn on his account in the other bank and taking advantage of the time lag necessary for clearance to "keep the kite afloat." Sher moved before trial to dismiss the indictment, arguing that § 1014 does not prohibit the conduct alleged. The district court agreed and granted the motion to dismiss. United States v. Sher, 505 F.Supp. 858 (W.D.Pa.1981). The United States appeals pursuant to 18 U.S.C. § 3731.
We have carefully considered the arguments presented by the appellant, 2 and we are in agreement with Judge McCune's thoughtful opinion for the court below. See also United States v. Pavlick, 507 F.Supp. 359 (M.D.Pa.1980). Accordingly, the judgment will be affirmed.
* Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation.
1 The statute reads in pertinent part as follows:
§ 1014. Loan and credit applications generally; renewals and discounts; crop insurance
Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of ... any bank the deposits of which are insured by the Federal Deposit Insurance Corporation, ... upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefor, shall be fined not more than $5,000 or imprisoned not more than two years, or both.
2 We have also considered but we do not accept ...
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Williams v. United States
... ... § 1014 are plausible, "it would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business ... See n. 2, supra ... 5. See United States v. Sher , 657 F.2d 28 (C.A.3 1981), cert. pending, No. 81-1047 (holding that § 1014 does not proscribe ... ...
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U.S. v. Bonnette, 84-6168
...outright split in the circuits did not exist until August 14, 1981, when the Third Circuit affirmed the district court in Sher, see 657 F.2d 28 (3d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3509, 73 L.Ed.2d 1383 The effect of developments in the law on the availability of collateral......
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U.S. v. Sher, 81-1317
...a violation of 18 U.S.C. § 1014 because Section 1014 does not specifically proscribe check kiting. A panel of this Court affirmed, 657 F.2d 28. Although the panel acknowledged that its decision was in conflict with the decision of the Fifth Circuit in United States v. Payne, 602 F.2d 1215 (......
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U.S. v. Krown, s. 278
...decisions, has held § 1014 inapplicable to a check kiting scheme. United States v. Sher, 505 F.Supp. 858 (W.D.Pa.), aff'd per curiam, 657 F.2d 28, reh'g en banc denied, 661 F.2d 34 (3d Cir. 1981). The Sher decision relied upon the reasoning in United States v. Pavlick, 507 F.Supp. 359 (M.D.......