U.S. v. Wolfswinkel

• Decision Date: 05 January 1995
• Docket Number: No. 93-10763,93-10763
• Citation: 44 F.3d 782
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Conley D. WOLFSWINKEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 782

44 F.3d 782

UNITED STATES of America, Plaintiff-Appellee, v. Conley D. WOLFSWINKEL, Defendant-Appellant.

No. 93-10763.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 17, 1994.

Decided Jan. 5, 1995.

John P. Frank, Lewis and Roca, Phoenix, AZ, William J. Hardy and W. Gary Kohlman, Kleinfeld, Kaplan and Becker, Washington, DC, for defendant-appellant.

Richard A. Friedman, Asst. U.S. Atty., Crim. Div., Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: FARRIS, BOOCHEVER, and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Conley Wolfswinkel was convicted of bank fraud, conspiracy to commit bank fraud and misapplication of bank funds, and aiding and abetting misapplication of bank funds. He appeals. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

Appellant is a major real estate developer in Arizona. At his trial, the prosecution presented evidence that from June through August of 1986, he employed a scheme designed to satisfy the cash needs of his business without liquidating any of its assets. As payment for his business obligations, appellant wrote ordinary checks that were not backed by sufficient funds (NSF checks). When those checks were to be presented, he then wrote checks from his accounts at other banks in order to cover the original checks. Often, the new checks were also not backed by sufficient funds.

Eventually, several banks began requiring appellant to cover his NSF checks with cashier's checks, which are the direct obligation of the issuing bank. Therefore, appellant persuaded John O'Neill, an officer at United Bank of Arizona, to allow him to purchase cashier's checks with NSF checks. Appellant also asked O'Neill to delay processing those NSF checks for several days until he could provide sufficient funds to cover them. On several occasions, O'Neill delayed processing the cashier's checks as well, but it is unclear whether appellant encouraged this practice. Prior to trial, O'Neill pled guilty to misapplication of bank funds and testified for the prosecution.

The jury found appellant guilty of one count of bank fraud. That count involved appellant's purchase and deposit of a $1,760,546 cashier's check issued by United Bank on August 7, 1986. The jury also found appellant guilty of several counts of aiding and abetting O'Neill's misapplication of bank funds, and of conspiracy to commit both these crimes. The district court sentenced appellant to five years probation and a $75,000 fine.

I.

Appellant first claims that he has been convicted multiple times for the same offense, thereby subjecting him to double jeopardy. He claims that his conviction for bank fraud under 18 U.S.C. Sec. 1344 and his conviction for misapplication of bank funds under 18 U.S.C. Sec. 656 were separate punishments for the same offense. See Ball v. United States, 470 U.S. 856, 861, 865, 105 S.Ct. 1668, 1671, 1673, 84 L.Ed.2d 740 (1985) (each criminal conviction, regardless of the sentence imposed, is a separate punishment). Among other things, the Double Jeopardy clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). However, since Congress has full authority to define distinct offenses and to prescribe punishments for those offenses, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). Thus, in this context, the Double Jeopardy clause only requires that a court not exceed its legislative authorization. Id. If Congress enacts statutes that indicate an intent to impose separate punishments, those statutes define separate offenses, and the punishments do not violate the Constitution. Id.

Whether a defendant's double jeopardy rights have been violated is a question of law reviewed de novo. United States v. Horodner, 993 F.2d 191, 193 (9th Cir.1993). We conclude that appellant was not punished multiple times for the same offense.

In order to determine whether bank fraud and misapplication of bank funds are the same offense, we look to congressional intent. We first use the rule of statutory construction announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182. When applying this test, we focus upon the statutory elements of each offense, rather than on the actual evidence presented at trial. Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct 2260, 2265, 65 L.Ed.2d 228 (1980). After applying this so-called "same elements" test, we then look to other indications of legislative intent in order to insure that Congress did not express a contrary intent. Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981).

Application of the Blockburger test indicates that the bank fraud and misapplication statutes do not prohibit the same offense. The version of 18 U.S.C. Sec. 1344 (bank fraud) applicable to appellant's case provides: "Whoever knowingly executes, or attempts to execute, a scheme or artifice--(1) to defraud a federally chartered or insured financial institution ... shall be fined not more than $10,000, or imprisoned not more than five years, or both." The applicable version of 18 U.S.C. Sec. 656 (misapplication) provides: "whoever, being an officer ... of ... any Federal Reserve bank, member bank, national bank or insured bank ... willfully misapplies any of the moneys intrusted to the custody or care of such bank ... shall be fined not more $5,000 or imprisoned not more than five years, or both."

Clearly, in order to convict, the bank fraud statute requires proof that the defendant executed a scheme or artifice to defraud. "For purposes of the bank fraud statute, the terms 'scheme' and 'artifice' are defined to include 'any plan, pattern, or [course] of action ... intended to deceive....' " United States v. Cloud, 872 F.2d 846, 850 (9th Cir.) (quoting United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.1987), cert. denied, 493 U.S. 1002, 110 S.Ct. 561, 107 L.Ed.2d 556 (1989). The misapplication statute, on the other hand, does not require such a scheme; it requires only an isolated act of misapplication. It is equally clear that the misapplication statute requires the action of a bank officer in order to convict. The bank fraud statute does not. Therefore, each statute requires proof of an element that the other does not. The Blockburger analysis indicates that the bank fraud and misapplication statutes do not both punish the same offense. See United States v. Henderson, 19 F.3d 917, 926 (5th Cir.) (holding same), cert. denied, --- U.S. ----, 115 S.Ct. 207, 130 L.Ed.2d 137 (1994).

Other sources of legislative intent do not indicate to the contrary. The legislative history indicates that Congress enacted Sec. 1344 to assure federal criminal jurisdiction for banking offenses. See United States v. Seda, 978 F.2d 779, 782 (2nd Cir.1992). This history is not inconsistent with an intent to punish conduct under both statutes.

Appellant urges this court to apply the less mechanistic approach to the Blockburger test announced in United States v. Seda, 978 F.2d 779. The Supreme Court's recent decision in United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), disposes of this contention. While Dixon was a plurality decision, all of the Justices agreed that as a general matter, when a defendant challenges multiple punishments imposed at a single trial, a strict application of the Blockburger test to the elements of the charged statutes is appropriate. Id.

Because application of that test to Sec. 1344 and Sec. 656 reveals that each statute requires proof of an element that the other does not, those statutes do not proscribe the same offense. Therefore, the district court did not violate double jeopardy by convicting and sentencing appellant under both statutes.

II.

Appellant next claims that there was insufficient evidence to support his conviction for bank fraud. When reviewing for sufficiency of the evidence, we affirm a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Appellant claims that in order to convict him of bank fraud under 18 U.S.C. Sec. 1344(1), the prosecution was required to show that his scheme placed at least one bank at a risk of loss. The district court so instructed the jury. However, the government contends on appeal that risk of loss is not an essential element of the crime. Rather, the government argues, it is only one of several possible ways of proving intent to defraud, which is an element of the crime. The Courts of Appeals that have adopted a "risk of loss" analysis have not made clear whether its proof is necessary or merely sufficient to show intent. See, e.g., United States v. Brandon, 17 F.3d 409, 426 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 81, --- L.Ed.2d ---- (1994); United States v. Barakett, 994 F.2d 1107, 1110-11 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 701, 126 L.Ed.2d 668 (1994).

The Ninth Circuit has never adopted a "risk of loss" analysis in bank fraud cases. In this case, we need not decide whether exposing a bank to risk of loss is necessary to show appellant's intent. If it is necessary, the government offered...