United States v. Gregg

179 F.3d 1312, 1999 U.S. App. LEXIS 14884, 1999 WL 449856
Court of Appeals for the Eleventh Circuit·Decided July 2, 1999·No. No. 98-2347·Published·Cited by 61 cases

Opinion

RONEY, Senior Circuit Judge:

Thomas Vance Gregg appeals his conviction and 41-month sentence for bank fraud [1314] (18 U.S.C. § 1344); theft of bank funds, (18 U.S.C. § 2113(b)); and money laundering, (18 U.S.C. § 1957). He argues insufficiency of the evidence on (1) the bank fraud conviction and (2) the money laundering conviction; and two sentencing issues: (3) improper enhancement for obstructing justice, and (4) failure to consider his ability to pay in ordering restitution. We affirm on all issues.

The case involved a fire insurance claim settlement check in which Gregg and other parties had an interest and which Gregg converted to his own use. Gregg was the president and sole shareholder of TEY Productions, Inc. (“TEY”). TEY purchased rental property from Mr. and Mrs. Walter J. Germack. The Germacks retained a mortgage interest in the property through a wrap-around mortgage. First Union National Bank held the first mortgage on the property, and DJC Properties held a third mortgage as collateral on an unrelated loan. The Germacks filed a foreclosure suit against TEY and Gregg. While foreclosure proceedings were pending, the property caught fire and sustained considerable damage. TEY’s insurance carrier sent a casualty-loss check to Gregg in the amount of $261,000.00 in settlement of TEY’s claim made payable to TEY, First Union, the Germacks, DJC Properties, and Tutwiler & Associates, the public adjuster that negotiated the claim on behalf of Gregg. Gregg caused the settlement check to be deposited in TEY’s SunTrust Bank account, with only the endorsements of TEY, First Union, and Tut-wiler. Gregg withdrew funds for his own use from the insurance proceeds deposited in the account. The bank suffered a $208,000.00 loss, the amount it had to pay to the Germacks and DJC Properties who had not endorsed the check but who had an interest in the funds from the settlement check. Gregg was charged with bank fraud, theft of bank funds, and money laundering.

1. Sufficiency of Evidence on Bank Fraud Conviction

Gregg argues that the government failed to prove that the false representation he made to the bank was “material.” A person commits the crime of bank fraud who “knowingly executes, or attempts to execute, a scheme ... to defraud a financial institution ... by means of false or fraudulent pretenses, representations or promises.” 18 U.S.C. § 1344.

There is no doubt in the law now that the false representation in a bank fraud ease has to be “material.” The trial court instructed the jury that the government had to prove that Gregg made a “material” misrepresentation. After the trial in this case, we had held to the contrary in United States v. Neder, 136 F.3d 1459 (11th Cir.1998). After this appeal was argued before us, however, the Supreme Court reversed our decision in Ned-er and held that “materiality of falsehood is an element of the ... bank fraud statute[ ].” United States v. Neder, (June 10,1999). Since the jury was properly instructed, the only issue before us is whether there is sufficient evidence to support the jury verdict on this fact.

The evidence, viewed in the light most favorable to the government, shows that the bank manager told Gregg he would need the endorsement of and signature guarantees for every payee before the settlement check could be deposited. Nevertheless, Gregg presented the settlement check without all the requisite endorsements at the bank’s drive-through window while the manager was out of the office, and told the teller that the bank manager had approved its deposit. According to the bank manager’s testimony, he inspected the check later that day and mistakenly assumed that all endorsements were on the check. Gregg argues that his statement to the teller that the bank manager had approved the check was not material because the teller did not rely on Gregg’s false assurances to deposit the check, but that in fact the check was finally deposited [1315] to his account only after actual approval by the manager.

Gregg’s argument fails for two reasons: First, reliance is not necessary to make the false statement material. “In general, a false statement is material if it has ‘a natural tendency to influence, or [is] capable of influencing, the decision of the decision making body to which it was addressed.’ ” Neder, (quoting United States v. Gaudin, 515 U.S. 506, 509, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). In other words, the statement need not have exerted actual influence, so long as it was intended to do so and had the capacity do so. See, e.g. United States v. Lopez, 728 F.2d 1359, 1362 (11th Cir.)(discussing whether false statement material under 18 U.S.C. § 1001), cert denied, 469 U.S. 828, 105 S.Ct. 112, 83 L.Ed.2d 56 (1984).

Second, the evidence would indicate the bank manager at least partially relied on Gregg’s representation. The manager testified that he thought the check had all the endorsements, as he had instructed Gregg and as was implicit in Gregg’s representation that the manager had approved the deposit, and that he never intended to approve the deposit with two endorsements missing. Because of the number of endorsements on the back of the check and the bank guaranty of endorsements on it, there was some difficulty in discerning exactly which endorsements were there and which were not. The evidence is sufficient to support Gregg’s bank fraud conviction.

2. Sufficiency of Evidence on Money Laundering Conviction

Gregg was convicted on two counts of money laundering based on the withdrawal from his bank account of the proceeds from the insurance check. Money laundering occurs when one “knowingly engages or attempts to engage in a monetary transaction in criminally derived property.” 18 U.S.C. § 1957. The withdrawal of money from a bank account Is a “monetary transaction.” 18 U.S.C. § 1957(f)(1). The government had to prove, however, that before that withdrawal, the proceeds in that account were “obtained from a criminal offense.” 18 U.S.C. § 1957(f)(2). Thus, the bank fraud offense had to be a completed criminal offense when the proceeds went into Gregg’s account.

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United States v. Gregg, 179 F.3d 1312, 1999 U.S. App. LEXIS 14884, 1999 WL 449856 (11th Cir. 1999).

179 F.3d 1312 (United States v. Gregg) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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