NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10355
Plaintiff-Appellee, D.C. No. 3:21-cr-00402-RS-2
v. MEMORANDUM* VICTOR MAKRAS,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding
Argued and Submitted February 8, 2024 San Francisco, California
Before: R. NELSON, FORREST, and SANCHEZ, Circuit Judges.
A jury convicted Defendant-Appellant Victor Makras of two crimes: (a)
making, and aiding and abetting the making of, false statements to a bank in violation
of 18 U.S.C. §§ 1014 and 2; and (b) bank fraud and aiding and abetting bank fraud
in violation of 18 U.S.C. §§ 1344 and 2. On appeal, Makras challenges the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. sufficiency of the Government’s evidence. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review de novo the sufficiency of the evidence supporting a criminal
conviction. United States v. Chang Ru Meng Backman, 817 F.3d 662, 665 (9th Cir.
2016). Sufficient evidence supports a conviction if, “after 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.” Id. at 667–68
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
1. Making False Statements to a Bank. Makras first contends that there
was insufficient evidence to convict him of making a false statement to a bank and
aiding and abetting the same. Specifically, he argues the Government failed to prove
“that he made a false statement” that he knew was false because, under California
law, it was true that the Kellys owed him $200,000.
In California, a promissory note represents “an unconditional promise to pay
money signed by the person undertaking to pay.” Saks v. Charity Mission Baptist
Church, 110 Cal. Rptr. 2d 45, 58 (Cal. Ct. App. 2001). A note is invalid, however,
if it lacks consideration or if it was intended as a sham to fool a third party. Id. at
58–59. Although extending the time for repayment can constitute consideration for
a note, the extension of time must be based on an actual agreement by the parties.
See Levine v. Tobin, 26 Cal. Rptr. 273, 274–75 (Cal. Dist. Ct. App. 1962).
2 Here, a rational jury could conclude that the amended note lacked
consideration because there was no agreement for an extension of time to repay. The
evidence at trial showed that Makras never demanded repayment from the Kellys
after they missed their June 2014 deadline nor did the Kellys seek an extension for
repayment. Cf. id. at 275 (extension contract drafted after plaintiffs demanded
performance from defendants and defendants requested an extension of time to
perform). The Government also presented evidence that the note was a sham because
Makras never loaned or intended to loan the Kellys more than $70,000,1 and
amended the note only after Harlan Kelly (Harlan) told Makras that he wanted to
increase his cash-out amount. Accordingly, a rational juror could have concluded
that the promissory note for $915,000—$130,000 more than Makras or the investors
ever lent to the Kellys—was invalid for want of consideration or because it was
intended to fool the lender, Quicken Loans, Inc. (Quicken). Moreover, even
assuming the Kellys owed $915,000, a rational juror could have found that Makras’s
statement that the entire principal was subject to 8% interest was false.
A rational juror could have further concluded that Makras knew his statements
concerning the loan amount were false. In addition to the evidence regarding the
loan amount, the Government presented testimony that Makras had approximately
1 The Government introduced evidence that Makras wrote several checks for approximately $130,000 to pay off various bills for the Kellys, but those payments occurred after the lender disbursed—and Makras received—the loan proceeds.
3 40 years of experience as a real estate professional, working on at least eight to ten
real-estate transactions per year.
Alternatively, the jury could have determined that Makras aided and abetted
Harlan’s false statements to the lender. See United States v. Singh, 532 F.3d 1053,
1057 (9th Cir. 2008) (listing elements of aiding and abetting). Like his principal-
offender argument, Makras contends that Harlan did not make a false statement to a
bank because Harlan’s statements to Quicken about the loan amount were true. But
the Government presented sufficient evidence that Harlan also knowingly made a
false statement to a bank because Harlan’s statements that he owed Makras $200,000
were false for the same reasons that Makras’s statements about the loan amount were
false. Additionally, the Government introduced evidence that the Kellys had been
unable to repay the investors, that they owed Makras $70,000, and that their first
attempt to secure a refinance loan through their credit union was unsuccessful. The
Government also offered testimony from a Quicken underwriter that for large cash-
out loan applications, such as $130,000, Quicken requires the borrower to explain
how the cash will be used. From this evidence, a rational juror could have found that
Harlan knowingly lied to Quicken about owing Makras $200,000 to prevent any
difficulty or delay in receiving the desired refinance loan.2
2 Makras argues that the Government’s theory about why Harlan lied about the debt on his loan application—to conceal unpaid construction costs—is illogical because Harlan had no reason to lie. The Government, however, was not required to
4 The Government likewise proved that Makras had the requisite intent for
aiding and abetting where evidence at trial showed that Makras was heavily involved
in the Kellys’ efforts to secure a refinance loan, Harlan told Makras why he wanted
the note amount increased, and Makras prepared a revised note and stated that the
Kellys owed him $200,000 on multiple documents associated with the Kellys’ loan
application. A rational juror could have concluded that Makras knew that these
documents would be presented to Quicken, particularly given his extensive real-
estate experience. See United States v. Bellucci, 995 F.2d 157, 159 (9th Cir. 1993)
(per curiam) (explaining that a rational juror could conclude that the defendant knew
his loan application would be presented to a bank based on his “familiarity with
mortgage and construction lending”). Further, a rational juror could have found that
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10355
Plaintiff-Appellee, D.C. No. 3:21-cr-00402-RS-2
v. MEMORANDUM* VICTOR MAKRAS,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding
Argued and Submitted February 8, 2024 San Francisco, California
Before: R. NELSON, FORREST, and SANCHEZ, Circuit Judges.
A jury convicted Defendant-Appellant Victor Makras of two crimes: (a)
making, and aiding and abetting the making of, false statements to a bank in violation
of 18 U.S.C. §§ 1014 and 2; and (b) bank fraud and aiding and abetting bank fraud
in violation of 18 U.S.C. §§ 1344 and 2. On appeal, Makras challenges the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. sufficiency of the Government’s evidence. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review de novo the sufficiency of the evidence supporting a criminal
conviction. United States v. Chang Ru Meng Backman, 817 F.3d 662, 665 (9th Cir.
2016). Sufficient evidence supports a conviction if, “after 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.” Id. at 667–68
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
1. Making False Statements to a Bank. Makras first contends that there
was insufficient evidence to convict him of making a false statement to a bank and
aiding and abetting the same. Specifically, he argues the Government failed to prove
“that he made a false statement” that he knew was false because, under California
law, it was true that the Kellys owed him $200,000.
In California, a promissory note represents “an unconditional promise to pay
money signed by the person undertaking to pay.” Saks v. Charity Mission Baptist
Church, 110 Cal. Rptr. 2d 45, 58 (Cal. Ct. App. 2001). A note is invalid, however,
if it lacks consideration or if it was intended as a sham to fool a third party. Id. at
58–59. Although extending the time for repayment can constitute consideration for
a note, the extension of time must be based on an actual agreement by the parties.
See Levine v. Tobin, 26 Cal. Rptr. 273, 274–75 (Cal. Dist. Ct. App. 1962).
2 Here, a rational jury could conclude that the amended note lacked
consideration because there was no agreement for an extension of time to repay. The
evidence at trial showed that Makras never demanded repayment from the Kellys
after they missed their June 2014 deadline nor did the Kellys seek an extension for
repayment. Cf. id. at 275 (extension contract drafted after plaintiffs demanded
performance from defendants and defendants requested an extension of time to
perform). The Government also presented evidence that the note was a sham because
Makras never loaned or intended to loan the Kellys more than $70,000,1 and
amended the note only after Harlan Kelly (Harlan) told Makras that he wanted to
increase his cash-out amount. Accordingly, a rational juror could have concluded
that the promissory note for $915,000—$130,000 more than Makras or the investors
ever lent to the Kellys—was invalid for want of consideration or because it was
intended to fool the lender, Quicken Loans, Inc. (Quicken). Moreover, even
assuming the Kellys owed $915,000, a rational juror could have found that Makras’s
statement that the entire principal was subject to 8% interest was false.
A rational juror could have further concluded that Makras knew his statements
concerning the loan amount were false. In addition to the evidence regarding the
loan amount, the Government presented testimony that Makras had approximately
1 The Government introduced evidence that Makras wrote several checks for approximately $130,000 to pay off various bills for the Kellys, but those payments occurred after the lender disbursed—and Makras received—the loan proceeds.
3 40 years of experience as a real estate professional, working on at least eight to ten
real-estate transactions per year.
Alternatively, the jury could have determined that Makras aided and abetted
Harlan’s false statements to the lender. See United States v. Singh, 532 F.3d 1053,
1057 (9th Cir. 2008) (listing elements of aiding and abetting). Like his principal-
offender argument, Makras contends that Harlan did not make a false statement to a
bank because Harlan’s statements to Quicken about the loan amount were true. But
the Government presented sufficient evidence that Harlan also knowingly made a
false statement to a bank because Harlan’s statements that he owed Makras $200,000
were false for the same reasons that Makras’s statements about the loan amount were
false. Additionally, the Government introduced evidence that the Kellys had been
unable to repay the investors, that they owed Makras $70,000, and that their first
attempt to secure a refinance loan through their credit union was unsuccessful. The
Government also offered testimony from a Quicken underwriter that for large cash-
out loan applications, such as $130,000, Quicken requires the borrower to explain
how the cash will be used. From this evidence, a rational juror could have found that
Harlan knowingly lied to Quicken about owing Makras $200,000 to prevent any
difficulty or delay in receiving the desired refinance loan.2
2 Makras argues that the Government’s theory about why Harlan lied about the debt on his loan application—to conceal unpaid construction costs—is illogical because Harlan had no reason to lie. The Government, however, was not required to
4 The Government likewise proved that Makras had the requisite intent for
aiding and abetting where evidence at trial showed that Makras was heavily involved
in the Kellys’ efforts to secure a refinance loan, Harlan told Makras why he wanted
the note amount increased, and Makras prepared a revised note and stated that the
Kellys owed him $200,000 on multiple documents associated with the Kellys’ loan
application. A rational juror could have concluded that Makras knew that these
documents would be presented to Quicken, particularly given his extensive real-
estate experience. See United States v. Bellucci, 995 F.2d 157, 159 (9th Cir. 1993)
(per curiam) (explaining that a rational juror could conclude that the defendant knew
his loan application would be presented to a bank based on his “familiarity with
mortgage and construction lending”). Further, a rational juror could have found that
Makras intended to help Harlan make a false statement to a bank.
2. Bank Fraud. Makras argues that the Government failed to prove that
he committed bank fraud for the same reasons it failed to prove that he made a false
statement to a bank. 18 U.S.C. § 1344 provides two alternative methods for
establishing bank fraud. Section 1344(1) “criminalizes schemes to defraud financial
institutions,” while § 1344(2) “criminalizes schemes to obtain money or property in
the custody or control of a bank by deceptive means.” United States v. McNeil, 320
prove that Harlan’s reasons for lying made sense but only that he lied to the lender. See United States v. Grasso, 724 F.3d 1077, 1087 (9th Cir. 2013) (reciting elements for making a false statement to a bank).
5 F.3d 1034, 1037 (9th Cir. 2003). Because the Government presented sufficient
evidence to convict Makras under § 1344(2), we do not address § 1344(1).
For the reasons explained above, a rational juror could have found that the
Kellys did not owe Makras $200,000 either because there was no consideration for
the promissory note or because the note was a sham to fool Quicken. Alternatively,
the jury could have convicted Makras under an aiding and abetting theory. As
previously explained, a rational juror could have found that Harlan knowingly lied
about owing Makras $200,000 to defraud and obtain additional money from Quicken
and that Makras intended to facilitate Harlan’s bank fraud.
AFFIRMED.