United States v. Branch

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-2921
Summary Calendar
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
WAYNE L. BRANCH
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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(February 17, 1995)
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:
Appellant Wayne L. Branch (Appellant) appeals from the jury's
verdict finding him guilty of three counts of bank fraud, in
violation of 18 U.S.C. § 1344, and two counts of wire fraud, in
violation of 18 U.S.C. § 1343. For the reasons below, we affirm.
I. BACKGROUND
Appellant was accused in a seven count indictment of
committing bank fraud, wire fraud and bank theft through an
elaborate scheme of kiting checks and wire transfers. After trial
to a jury, Appellant was convicted of bank and wire fraud, but
acquitted of two counts of bank theft. Only one issue is before us
on appeal.
II. ANALYSIS
Prior to trial, Appellant and the government expressed a
desire to enter into a stipulation that four of the financial
institutions involved were federally insured.1 A written
stipulation was subsequently executed and filed with the court. It
is undisputed, however, that the stipulation was not tendered as a
trial exhibit nor was the stipulation published to the jury.
Instead, the trial court provided a jury instruction which stated,
in relevant part,
For you to find the defendant guilty of the crimes
charged in Counts One, Two, and Three of the indictment,
you must be convinced that the government has proved each
of the following beyond a reasonable doubt:
First: That the defendant knowingly executed or
attempted to execute a scheme or artifice to defraud;
Second: That the defendant acted with the intent
to commit fraud; and
Third: That the victim was a federally insured
financial institution.
M M M M
You are instructed that it has been stipulated and
agreed by the parties that the deposits of the banks
named in the indictment were at the times alleged insured
by the Federal Deposit Insurance Corporation.
Accordingly, you may accept as an established fact that
those banks were "insured depository institutions" and
were federally insured financial institutions.
1
Federally insured status is an essential element of the crime
of bank fraud. See e.g. United States v. Schultz, 17 F.3d 723 (5th
Cir. 1994).
2
Appellant offered no objection to the jury instruction as tendered,
nor did the Appellant request that the stipulation be published to
the jury or entered as an exhibit.
Appellant does not contest the veracity of the stipulation,
nor does he contest the fact that he actually executed the
stipulation and is thereby bound by its terms. Instead, Appellant
simply contends that the government failed to prove each essential
element of the crime of bank fraud because it did not offer the
stipulation into evidence. While the better practice would have
been to tender the stipulation as a trial exhibit, we find
Appellant's argument to lack merit.
Appellant misapprehends the function of a stipulation. Once
a stipulation is entered, even in a criminal case, the government
is relieved of its burden to prove the fact which has been
stipulated by the parties. See e.g. United States v. Harper, 460
F.2d 705, 707 (5th Cir. 1972); Poole v. United States, 832 F.2d
561, 565 (11th Cir. 1987), cert. denied, 488 U.S. 817 (1988).
Appellant himself signed the stipulation, and cannot now claim that
the government failed to offer evidence on an element to which he
confessed. The court's instruction to the jury was both factually
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and legally correct,2 and there is no dispute that the government
proved each element of the crimes that it was required to prove.
III. CONCLUSION
For the foregoing reasons, we find that the Appellant has not
shown that the government failed to prove an essential element of
the crime of bank fraud. Appellant's appeal is without merit, and
the judgment of the district court is AFFIRMED.
2
The standard for reviewing an instruction is whether the jury
was misled in any way and whether it had an understanding of the
issues and its duty to determine those issues. Sandidge v. Salen
Offshore Drilling Co., 764 F.2d 252, 261 (5th Cir. 1985). The
function of the reviewing court with respect to instructions is to
satisfy itself that the instructions show no tendency to confuse or
mislead the jury with respect to the applicable principles of law.
Rohner, Gehrig & Co. v. Capital City Bank, 655 F.2d 571, 580 (5th
Cir. Unit B Sept. 1981) (citing 9 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure: Civil § 2558 (1971)). No
harmful error is committed if the charge viewed as a whole
correctly instructs the jury on the law, even though a portion is
technically imperfect. Sandidge, 764 F.2d at 262.
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