USA v. King

• Decision Date: 03 November 1999
• Docket Number: No. 99-10054,99-10054
• Citation: 200 F.3d 1207
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NORMAN ANTHONY KING, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1207

200 F.3d 1207 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NORMAN ANTHONY KING, Defendant-Appellant.

No. 99-10054

U.S. Court of Appeals for the Ninth Circuit

Submitted November 3, 1999¹

Filed December 22, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Fred D. Gibson, III, Law Offices of Fred D. Gibson, III, Las Vegas, Nevada, for the defendant-appellant.

Margaret M. Stanish, Assistant United States Attorney, Las Vegas, Nevada, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Johnnie B. Rawlinson, District Judge, Presiding. D.C. No. CR-94-00298-JBR

Before: Herbert Y. C. Choy, Mary M. Schroeder, and Arthur L. Alarcon, Circuit Judges.

OPINION

CHOY, Circuit Judge:

Norman Anthony King ("King") appeals his criminal conviction and sentencing following a jury trial in the District of Nevada. King was convicted of one count of bank fraud and three counts of wire fraud. The district court imposed a sentence of 51 months imprisonment, 5 years of supervised release, and $94,000 restitution. We have jurisdiction under 28 U.S.C. S 1291, and we affirm the conviction and sentence.

Background

I. Introduction

The charges against King stem from a scheme to defraud the Bank of America ("BofA") through the negotiation of checks drawn on closed business accounts in a Canadian bank. After one of the worthless checks was credited to King's business account at BofA, he withdrew the proceeds by three separate wire transfers. On November 23, 1994, a federal grand jury returned a four count indictment against King, charging him with a single count of bank fraud in violation of 18 U.S.C. S 1344, and three counts of wire fraud in violation of 18 U.S.C. S 1343. The indictment was superseded to make non-substantive changes on July 8, 1998 and August 19, 1998.

The United States sought to extradite King, a Canadian citizen, from British Columbia, Canada. After King twice failed to appear at his extradition hearing, a provisional warrant was issued for his arrest. On or about March 10, 1997, King was arrested in Mexico. The United States commenced formal extradition proceedings to prosecute him in the instant case and in another case pending in the Northern District of California. The United States took custody of King on November 7, 1997 and transported him to the District of Nevada.

II. TMC Target Marketing Corporation Check #1048

In 1991, King opened three commercial accounts at Valley Bank of Nevada (taken over by BofA in 1992) under the following corporate names: (1) Target Marketing Corporation, doing business as Win A Fortune Contest; (2) McKinley, Richards & Wright Corporation, doing business as Trivia Quiz; and (3) Pan-American Marketing Corporation, doing business as Quick Cash Contest. King was the only authorized signatory on each of these accounts.

On or about April 19, 1994, BofA received a check in the amount of $47,000 for deposit in the Target Marketing Account. The check was drawn on an account held in the name of TMC Target Marketing Corporation at the Hongkong Bank of Canada. The check, #1048, was dated April 13, 1993, and made payable to "Target Marketing Corp." The maker's signature was an illegible scribble. [This check is hereinafter called "TMC check #1048."] Unbeknownst to BofA, the Hongkong Bank account upon which TMC check #1048 was drawn had been closed since October 1992. King and his exwife, Cindy King, had been the signatories on that account.

Since TMC check #1048 was drawn on a foreign account, BofA sent it to its foreign currency services in Los Angeles, California. The BofA office in Los Angeles noted that the check was stale-dated and returned it to Las Vegas. The Target Marketing account was then debited $47,015 (including a $15 foreign fee) on May 9, 1994. Before BofA discovered the stale date and debited the Target Marketing account, King withdrew the proceeds of the check.

III. TMC Target Marketing Corporation Check #1049

After TMC check #1048 was returned as stale-dated, the Target Marketing account was about $48,868 overdrawn. After notifying King of the overdraft, BofA received a replacement check in the sum of $47,000 drawn on the same TMC account at the Hongkong Bank as TMC check #1048. This check, #1049, was also stale-dated April 13, 1993, and made payable to "Target Marketing Corp." The memo section of the check read, "to replace check #1048," and the maker's signature was an illegible scribble. [This check is hereinafter called "TMC check #1049."]

IV. The McKinley Hongkong Bank Checks

While BofA was still handling the overdraft created by the deposit of TMC check #1048, three additional checks were presented for deposit in King's accounts at BofA. Each of these checks was drawn on McKinley, Richard & Wright Corporation's account at the Hongkong Bank in Canada.[These checks are hereinafter called "McKinley checks. "] Like the TMC account at the Hongkong Bank, the McKinley account was closed. King had been the sole signatory of the McKinley account.

McKinley checks #51 for $196,000 and #52 for $47,000 were both payable to "Target Marketing Corporation." McKinley check #53 for $196,000 was payable to "McKinley, Richards, & Wright Corporation." The payment information on each check was typewritten. Each check was dated April 29, 1994, and the maker's signature on each was an illegible scribble. The memo line on each check read, "transfer."

BofA decided to process these checks on a collection basis, rather than immediately credit King's accounts, because it was suspicious of the banking activity. Accordingly, BofA sent the checks to the Hongkong Bank in Canada for collection on or about May 3, 1994. On or about May 9, 1994, Hongkong Bank informed BofA that the McKinley account was closed and that the checks would be returned unpaid.

V. The Barbados Check

Shortly before the deposit of TMC check #1048, King issued a worthless check in the sum of $47,000 to pay for the shipment of prize notification postcards from Barbados to the United States. Nigel Cobham, a postal accountant with the Barbados Postmaster, testified that King had contacted him to arrange the bulk mailing. Cobham further testified that when King requested the routing information for the Postmaster's bank, he expected that King was going to wire $47,000 to the Postmaster's bank as payment for this shipment of mail. On March 3, 1994, Cobham learned from the Postmaster's bank that it had received the $47,000. Cobham did not know that the $47,000 had been paid by check, not a money wire transfer. Believing that full payment had been received, Cobham ordered the shipment of 2,550 kilos of mail for King in March 1994.

After the mail had been shipped, the Federal Reserve Bank of New York notified the Central Bank of Barbados that the $47,000 check, drawn on the McKinley account at BofA, had been dishonored for non-sufficient funds.

Discussion and Analysis of Law

I. Duplicity Challenge

A duplicitous indictment compromises a defendant's Sixth Amendment right to know the charges against him, as well as his Fifth Amendment protection against double jeopardy. United States v. Aguilar, 756 F.2d 1418, 1420 n.2 (9th Cir. 1985) (citations omitted). Whether an indictment is duplicitous is a question of law reviewed de novo. United States v. Martin, 4 F.3d 757, 759 (9th Cir. 1993). The court limits its review to a reading of the indictment itself to determine whether it may be read to charge a single violation. Aguilar, 756 F.2d at 1422.

King contends that Count One is duplicitous because it alleges at least two separate offenses. He identifies the deposit of TMC check #1048 as one offense, the attempted deposit of the three McKinley checks as another, and the attempted deposit of TMC check #1049 as a possible third. However, while these independent acts probably could constitute separate offenses, Count One alleges only a single execution of the fraudulent scheme. Thus, the indictment is not duplicitous.

This court has not yet addressed a duplicity challenge in a bank fraud case. However, in multiplicity challenges under the bank fraud statute, we have held that each "execution" of a fraudulent scheme is punishable as a separate count. See United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987). In other words, the bank fraud statute "allows charging each execution of the scheme to defraud as a separate act." Id. (emphasis added). The question now before this court is whether an act which can be viewed as an independent execution of a scheme must be charged in a separate count.

The District of Columbia Circuit addressed this very question in United States v. Bruce, 89 F.3d 886, 889-90 (D.C. Cir. 1996). In that case, the court rejected a duplicity challenge in a bank fraud prosecution, holding that an act which can be viewed as an independent execution of a fraudulent scheme need not be charged in a separate count. Id. at 889. In so holding, the court endorsed the Seventh Circuit's reasoning in United States v. Hammen, 977 F.2d 379 (7th Cir 1992):

Each execution need not give rise to a charge in the indictment. The indictment in this case sets forth the existence of a scheme and alleges the scheme was executed on at least one occasion. The allegations tending to demonstrate the existence of the scheme do appear to be allegations that, if worded and structured differently, might constitute additional executions. This is hardly surprising; the actions that tend to prove the existence of the scheme will often be the actions actually taken to execute the scheme.

Id. at 383. We find this analysis sensible and persuasive, and we therefore hold that each execution of a scheme to defraud need not give rise to a charge in the indictment.

If the government is not required to charge every possible execution, the next question is whether King's indictment was written so as to allege only one execution of an...