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United States v. Davis

filed*fn*: February 8, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES H. DAVIS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-91-0512-Kn-1. David V. Kenyon, District Judge, Presiding

Before: Beezer, Brunetti, and Thompson, Circuit Judges

MEMORANDUM

Appellant James H. Davis appeals his jury conviction for three counts of bank fraud, in violation of 18 U.S.C. § 1344. We affirm.

I

Appellant was general manager of Tillie's Memorial Chapel, a funeral parlor. To secure the prepayment of funeral expenses for its clients, Tillie's arranged for "pre-need" accounts to be established on its behalf at Life Savings Bank, in San Bernardino, California. Under this arrangement, Tillie's clients deposited funds into the "pre-need" trust accounts. These funds were withdrawable by an authorized Tillie's representative upon presentation of the client's death certificate to the bank. The withdrawn funds were then used to satisfy the burial expenses of the client.

Louise Pugh was a Tillie's customer who had established a pre-need trust account. Appellant personally negotiated Mrs. Pugh's pre-need contract on behalf of Tillie's. Mrs. Pugh's account contained approximately $2800. Upon Mrs. Pugh's death in 1989, her pre-need account was closed by an authorized Tillie's representative, and the proceeds of that account used to satisfy her burial expenses. After the pre-need account was closed on May 5, 1989, appellant learned that Life Savings Bank had a second account in Mrs. Pugh's name -- a six-month certificate of deposit in the amount of $68,253.75, with a maturity date of August 14, 1989. This account, which was erroneously attributed to Mrs. Pugh through a clerical mistake, had a blank signature card bearing only the legend, "See authorization letter." Apparently, no such letter existed.

On August 19, 1989, appellant closed the certificate of deposit account and withdrew the $68,253.75. Appellant completed a withdrawal slip for that amount, inserted the account number, and received a check in the full amount payable to Tillie's. He immediately endorsed the check and caused the bank to issue one check payable to himself in the amount of $36,253.75, and one check payable to Frank Tillie Jr. in the amount of $32,000.

Appellant was charged and convicted of bank fraud in connection with this transaction, and he appeals.

II

Appellant complains that the district court erred in denying his motion for judgment of acquittal at the close of the government's case. This denial was error, he claims, because the indictment failed sufficiently to charge and the government failed to prove a prima facie case of bank fraud.

We review a district court's denial of a motion for judgment of acquittal in the same manner as a challenge to the sufficiency of the evidence. United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir. 1989) (citations omitted). "Consequently, we review the evidence presented against [appellant] in the light most favorable to the government to determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We review de novo, however, the core question as to the sufficiency of the indictment. United States v. Dischner, 960 F.2d 870, 886 (9th Cir. 1992). The statute under which appellant was indicted provided:

(a) Whoever knowingly executes, or attempts to execute, a scheme or artifice --

(1) to defraud a federally chartered or insured financial institution; or

(2) to obtain any of the moneys, funds, credits, assets, securities or other property owned by or under the custody or control of a federally chartered or insured financial institution by means of false or fraudulent pretenses, representations, or promises, shall be fined ...


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