United States v. Wright

• Citation: 848 F.3d 1274
• Decision Date: 21 February 2017
• Docket Number: No. 15-5090,15-5090
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bruce Carlton WRIGHT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

848 F.3d 1274

UNITED STATES of America, Plaintiff–Appellee,

v.Bruce Carlton WRIGHT, Defendant–Appellant.

No. 15-5090

United States Court of Appeals, Tenth Circuit.

FILED February 21, 2017

Barry L. Derryberry, Research and Writing Specialist (Julia L. O'Connell, Federal Public Defender, William Patrick Widell, Assistant Federal Public Defender, and Julie K. Linnen, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Tulsa, Oklahoma, for Defendant–Appellant.

Joel-lyn A. McCormick, Assistant United States Attorney (Danny C. Williams, Sr., United States Attorney, with her on the brief), Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff–Appellee.

Before PHILLIPS and BALDOCK, Circuit Judges.^*

PHILLIPS, Circuit Judge.

A jury convicted Bruce Carlton Wright of conspiracy to commit bank fraud and of eleven counts of bank fraud arising from his participation in a scheme to submit false draw requests and invoices to obtain bank loans. The district court sentenced Wright to thirty-three months' imprisonment and ordered him to pay $1,094,490.60 in restitution. Wright raises several issues on appeal, concerning jury instructions, withheld impeachment evidence, and bank loss and restitution amounts. We affirm.

BACKGROUND

A grand jury sitting in the Northern District of Oklahoma indicted Wright and Alan Blaksley on one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344 (Count 1), and on twelve counts of bank fraud in violation of 18 U.S.C. § 1344(1) (Counts 2–13). Before trial, Blaksley pleaded guilty to conspiracy to commit bank fraud and agreed to testify as a government witness at trial. Wright chose to defend against the charges at trial.

During the time charged in the Indictment, June 2007 to July 2008, Wright served as president of five Oklahoma limited liability companies owned by Blaksley. One of these companies, Group Blaksley Properties, LLC, obtained a $6.5 million loan from International Bank of Commerce (Bank) to develop a senior-living community in Bentonville, Arkansas.¹ Sometime during the development of the property, Wright and Blaksley agreed to a fraudulent scheme in which Wright submitted fraudulent monthly draw requests for unperformed work and duplicate draw requests for work already performed elsewhere. As part of their scheme, Wright and Blaksley included with the draw requests pictures of construction work supposedly (but not) completed at the Bentonville project. Misled by the false information, the Bank paid $1,176,490.60 in draw requests to Group Blaksley Properties. In fact, Group Blaksley Properties had performed little work on the Bentonville site. Blaksley pocketed almost all of the $1,176,490.60 for his personal use, and Wright obtained incidental benefits.

In April 2008, the Bank inspected the property and saw that Group Blaksley Properties had done much less work than represented. Before 2015, the Bank foreclosed and sold the Bentonville property, but the record doesn't say how much it got from the sale.

The jury convicted Wright on the conspiracy count and eleven of the twelve bank-fraud counts.² Wright didn't object to the Presentence Investigation Report (PSR) or any of its contents, either before or at sentencing. The district court adopted the PSR's uncontested loss calculation of $1,094,490.60, and sentenced Wright to thirty-three months' imprisonment. Relying also on the PSR's uncontested restitution calculation, the district court ordered Wright to pay $1,094,490.60 in restitution. Wright appealed.

DISCUSSION

Wright asserts that the district court erred in five ways: (1) the district court plainly erred by not including within its listed elements of conspiracy to commit bank fraud the necessary element of intent to defraud; (2) the district court erred in responding to a written question from the jury during deliberations by directing the jury to consider each indictment count separately; (3) the district court erred in denying Wright's Motion for New Trial based on a claimed Brady violation; (4) the district court plainly erred in calculating the loss amount under USSG § 2B1.1(b)(1) ; and (5) the district court plainly erred in calculating the restitution amount.

We review Wright's first, second, fourth, and fifth asserted errors, to which he didn't properly object in the district court, under the plain-error standard. United States v. Faust , 795 F.3d 1243, 1251 (10th Cir. 2015). Under this standard, Wright must establish "(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Gonzalez–Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (quoting United States v. Burbage , 365 F.3d 1174, 1180 (10th Cir. 2004) ). Plain error affects a defendant's substantial rights if "there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." United States v. Hale , 762 F.3d 1214, 1221 (10th Cir. 2014) (quoting United States v. Rosales–Miranda , 755 F.3d 1253, 1258 (10th Cir. 2014) ).

Because Wright's Motion for New Trial, his third asserted error on appeal, alleges a Brady violation, we review de novo the district court's denial of that motion. United States v. Velarde , 485 F.3d 553, 558 (10th Cir. 2007).

I. The district court didn't plainly err in its jury instruction listing the elements of conspiracy to commit bank fraud.

We review the jury instructions "in the context of the entire trial to determine if they accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues in the case." United States v. Kalu , 791 F.3d 1194, 1200–01 (10th Cir. 2015) (quoting United States v. Thomas , 749 F.3d 1302, 1312 (10th Cir. 2014) ).

Wright argues that the district court plainly erred by not including "intent to defraud" as an element of conspiracy to commit bank fraud in Jury Instruction 14. Appellant's Opening Br. at 13. Because Wright didn't object to this jury instruction, we review under the plain-error standard. United States v. LaVallee , 439 F.3d 670, 684 (10th Cir. 2006). Wright's plain-error argument fails on the first step of the analysis—he cannot show error. Though the conspiracy instruction didn't list "intent to defraud" as an element of the conspiracy, the district court cured this deficiency by incorporating into the conspiracy instruction that same intent element from Instruction 15, which provided the elements of bank fraud.

Count 1 charged Wright with conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349. "[C]onspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself." United States v. Robertson , 473 F.3d 1289, 1292 (10th Cir. 2007) (quoting Ingram v. United States , 360 U.S. 672, 678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959) ). And bank fraud requires intent to defraud a financial institution. United States v. Gallant , 537 F.3d 1202, 1223 (10th Cir. 2008). In this circumstance, our circuit's pattern jury instructions favor listing "intent to defraud" as an element of conspiracy to commit bank fraud. Tenth Circuit Pattern Jury Instructions Criminal § 2.19 (Use Note). Here, the district court's conspiracy instruction neglected to expressly include this intent-to-defraud element.

Even so, we disagree with Wright that the district court's straying from the most proper instruction amounts to error in his case.³ See United States v. Knight , 659 F.3d 1285, 1287 (10th Cir. 2011) (in reviewing jury instructions for error, we read and evaluate them in their entirety to determine whether the instructions as a whole fairly, adequately, and correctly state the governing law and provide the jury with an ample understanding of the applicable principles of law). Under Instruction 14—the conspiracy instruction—the district court informed the jury that it could not convict of conspiracy absent finding that Wright had agreed with another person to commit "bank fraud":

The defendant Bruce Carlton Wright is charged in Count 1 with conspiring to commit bank fraud . It is a crime for two or more people to agree to commit a crime. To find the defendant guilty of conspiracy to commit bank fraud you must be convinced the government has proved each of the following beyond a reasonable doubt:

First: two or more people reached an agreement to commit the crime of bank fraud ;

Second: the defendant knew the essential objectives of the conspiracy;

Third: the defendant knowingly and voluntarily participated in the conspiracy; and

Fourth: the alleged coconspirators were interdependent.

R. Vol. 1 at 45 (emphasis added). And under Instruction 15, the district court told the jury that bank fraud required proof that Wright had "acted with intent to defraud." Id. at 47; see Weeks v. Angelone , 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) ("A jury is presumed to follow its instructions," and "to understand a judge's answer to its question."). Hence the conspiracy instruction incorporated "intent to defraud" into its elements by requiring an agreement to commit bank fraud.⁴

II. Wright waived any objection to the district court's response to a jury question by failing to argue plain error on appeal.

During deliberations, the jury sent the district court a note asking, "Your Honor, does the defendant have to be guilty of Count No. 1 in order to be guilty or not guilty of other counts."⁵ R. Vol. 2 at 1614. In conferring with counsel, the district court stated its belief that the proper response was "no." Id. It proposed to respond, "No, the counts should be reviewed separately." Id. at 1618. Wright's counsel stated that he preferred that the court respond, "You have...