United States v. Hoke , 551 F. App'x 611 ( 2014 )

13-615
United States v. Hoke
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of January, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-615
16
17 KENITA E. HOKE,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: TIMOTHY AUSTIN (Molly Corbett,
22 on the brief), for Lisa A.
23 Peebles, Federal Public Defender
24 for the Northern District of New
25 York, Albany, New York.
26
27 FOR APPELLEES: RAJIT S. DOSANJH (Edward P.
28 Grogan, on the brief), for
1
1 Richard S. Hartunian, United
2 States Attorney for the Northern
3 District of New York, Syracuse,
4 New York.
5
6 Appeal from a judgment of the United States District
7 Court for the Northern District of New York (McAvoy, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Kenita Hoke appeals from the judgment of the United
14 States District Court for the Northern District of New York
15 (McAvoy, J.), convicting her of bank fraud, in violation of
16 18 U.S.C. § 1344(2), and passing and uttering a forged
17 Treasury check, in violation of 18 U.S.C. § 510. The
18 charges arose from Hoke’s deposit into her own account of a
19 Social Security check made out to a third party. After Hoke
20 withdrew the funds, the Treasury sought to recover the funds
21 because the beneficiary’s endorsement (and direction to pay
22 to the order of Hoke) was forged. We assume the parties’
23 familiarity with the underlying facts, the procedural
24 history, and the issues presented for review.
25 1. Intent to Defraud
26 Hoke challenges the sufficiency of the evidence
27 demonstrating her intent to defraud under both counts.
28 Because Hoke preserved this objection, we review the
29 sufficiency issue de novo. United States v. Sabhnani, 599
30 F.3d 215, 241 (2d Cir. 2010). “A defendant challenging the
2
1 sufficiency of trial evidence bears a heavy burden, and the
2 reviewing court must view the evidence presented in the
3 light most favorable to the government and draw all
4 reasonable inferences in the government’s favor.” United
5 States v. Gagliardi, 506 F.3d 140, 149 (2d Cir. 2007)
6 (internal quotation marks omitted). “The jury’s verdict
7 will be affirmed unless no rational trier of fact could have
8 found all of the elements of the crime beyond a reasonable
9 doubt.” Id. at 149-50 (internal quotation marks omitted).
10 Hoke has not sustained this burden. The beneficiary
11 testified that she never received the check or endorsed it.
12 While the handwriting analysis concluded that the false
13 signature and the endorsement to Hoke was not done in Hoke’s
14 hand, the evidence could lead a juror to believe Hoke knew
15 the check was forged. There is no dispute that Hoke
16 endorsed the check, deposited it, and withdrew the money.
17 In the course of the investigation, Hoke gave conflicting
18 accounts of how she came to deposit the check. Furthermore,
19 the bank teller testified that Hoke was nervous when
20 depositing the check, and that was one reason the teller
21 consulted her supervisor. A reasonable juror could find
22 beyond a reasonable doubt on this evidence that Hoke
23 possessed the requisite intent to defraud.
3
1 To the extent Hoke contests the credibility of the
2 government’s witnesses at trial, we “defer to a jury’s
3 assessments with respect to credibility [as long as they
4 are] ‘reasonably based on evidence presented at trial.’”
5 United States v. Torres, 604 F.3d 58, 67 (2d Cir. 2010)
6 (quoting United States v. Ceballos, 340 F.3d 115, 125 (2d
7 Cir. 2003)). We disagree with Hoke’s contention that the
8 testimony given by the beneficiary was so incredible as to
9 overcome this deference.
10 2. Intent to Victimize the Bank
11 Based on this Court’s decision in United States v.
12 Nkansah, 699 F.3d 743 (2d Cir. 2012), Hoke argues that the
13 evidence was insufficient on the bank fraud charge to show
14 an intent to victimize First Niagara. Since this argument
15 was never raised below, we review for plain error. See
16 United States v. Draper, 553 F.3d 174, 179 (2d Cir. 2009).
17 “For an error to be plain, ‘it must be a clear or obvious
18 deviation from current law that affected the outcome of the
19 district court proceedings.’” Id. (quoting United States v.
20 Crowley, 318 F.3d 401, 415 (2d Cir. 2003)).
21 Nkansah, decided after Hoke’s conviction, held that the
22 bank fraud statute “is a specific intent crime requiring
23 proof of an intent to victimize a bank by fraud. [A]
24 federally insured or chartered bank must be the actual or
4
1 intended victim of the scheme.” Nkansah, 699 F.3d at 748
2 (internal citations and quotation marks omitted). In
3 Nkansah, “[t]here [was] no evidence of the Treasury
4 dishonoring the checks or seeking reimbursement from any of
5 the banks,” id. at 750, whereas here the Treasury Department
6 did seek reimbursement. Still, Nkansah is sufficiently
7 analogous to find some weight in Hoke’s argument. Assuming
8 error in Hoke’s case, however, the error was not plain.
9 3. Jury Instructions
10 Hoke contests an aiding and abetting jury charge on two
11 grounds. First, Hoke argues that the evidence did not
12 support the instruction. “We review a claim of error in
13 jury instructions de novo, reversing only where, viewing the
14 charge as a whole, there was a prejudicial error.” United
15 States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006)
16 (internal quotation marks omitted). “An error is harmless
17 only if it is clear beyond a reasonable doubt that a
18 rational jury would have found the defendant guilty absent
19 the error.” Id. (internal quotation marks omitted). As the
20 evidence makes it clear beyond a reasonable doubt that a
21 rational jury would have found the defendant guilty as a
22 principal, any alleged error was harmless.
23 Secondly, Hoke argues that the aiding and abetting
24 charge constructively amended the indictment in violation of
5
1 the Fifth Amendment’s Grand Jury Clause. “To prevail on a
2 constructive amendment claim, a defendant must demonstrate
3 that either the proof at trial or the trial court’s jury
4 instructions so altered an essential element of the charge
5 that, upon review, it is uncertain whether the defendant was
6 convicted of conduct that was the subject of the grand
7 jury’s indictment.” United States v. Frank, 156 F.3d 332,
8 337 (2d Cir. 1998). “[T]he inclusion of an aiding and
9 abetting charge to the jury will rarely, if ever,
10 constructively amend an indictment because an aiding and
11 abetting charge is arguably implicit in every indictment.”
12 United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.
13 1994). “Accordingly, it is well established that a trial
14 judge may properly give an aiding and abetting instruction
15 even if the indictment does not expressly charge a[n aiding
16 and abetting charge].” Id. Hoke contends that the jury
17 instructions might have led the jury to convict her of
18 conspiracy. However, the jury charge did not include any of
19 the elements of a conspiracy. To the extent Hoke argues the
20 instructions led the jury to convict her of fraud against
21 the Treasury, the jury was instructed solely on bank fraud
22 and the evidence supported that charge. The jury
23 instructions did not constructively amend the indictment.
24
6
1 4. Read-Back of Testimony
2 A ruling that permits a read-back of trial testimony to
3 the jury is reviewed for abuse of discretion. See United
4 States v. Escotto, 121 F.3d 81, 84 (2d Cir. 1997). The
5 portions of Agent Duffalo’s testimony read back to the jury
6 were responsive to the jury’s request and included portions
7 from the direct examination, cross examination, rebuttal,
8 and recross. While the district court denied Hoke’s request
9 for some portions to be included in the read back, the
10 information Hoke sought to have included was read back in
11 other contexts. The district court did not abuse its
12 discretion.
13
14 For the foregoing reasons, and finding no merit in
15 Hoke’s other arguments, we hereby AFFIRM the judgment of the
16 district court.
17
18 FOR THE COURT:
19 CATHERINE O’HAGAN WOLFE, CLERK
20
7