Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 CR 766 Richard W. McLaren, Judge.
Cummings and Pell, Circuit Judges, and Campbell, Senior District Judge.*fn*
The defendant-appellant Charles Braverman was charged in a six-count indictment with conspiracy and five substantive counts arising from the procurement of two fraudulent loans. After a jury found Braverman guilty on all six counts, the district court judge, who had reserved ruling on Braverman's motion for judgment of acquittal, found that the Government had failed to prove four accessory counts (Counts 2 through 5) and granted Braverman's motion on these counts. Braverman now appeals from his conviction on the remaining Counts 1 and 6, which charged, respectively, conspiracy and making false statements to a bank in order to obtain two loans, in violation of 18 U.S.C. § 1014. The major issues raised on appeal are: (1) whether the evidence was sufficient to prove Braverman intended to defraud the bank; (2) whether the evidence was sufficient to prove Braverman's involvement in the conspiracy; (3) whether the district court erred in deferring its ruling on Braverman's motion for judgment of acquittal; (4) whether the evidence was sufficient to show the materiality of the financial statement; and (5) whether the district judge erred in replaying the tape of the jury instructions and permitting the jury to take notes during this time.
1. Braverman contends, with respect to both Counts 1 and 6, that the evidence was insufficient to prove that he intended to defraud the Steel City National Bank.
The intent of the defendant, in a case such as this, may, of course, be inferred from the facts and circumstances in proof. United States v. Acree, 466 F.2d 1114, 1117 (10th Cir. 1972), cert. denied, 410 U.S. 913, 35 L. Ed. 2d 278, 93 S. Ct. 962 (1973). Viewing the evidence here, as we must, in the light most favorable to the Government, we find that the evidence was more than sufficient to support the jury's verdict.
Braverman, a broker on the Chicago Mercantile Exchange, agreed to use a fictitious name, "Peter Weis," to secure a $30,000 bank loan for his insolvent friend Robert Ness. After being assured by Ness that Ness could "handle" such a loan at the bank, Braverman signed a blank bank note with the fictitious name, see United States v. Iannelli, 461 F.2d 483 (2d Cir. 1972), cert. denied, 409 U.S. 980, 34 L. Ed. 2d 243, 93 S. Ct. 310, 93 S. Ct. 331, 93 S. Ct. 345, and arranged for a mailing address where bank notices could be mailed.
The conditions under which the loan was granted, moreover, were highly unusual. A few days after Braverman had signed the blank note but before any financial statement was filed with the bank, Ness told Braverman that he could expect loan approval in a day. Later when Braverman and Ness did "get together" to prepare a financial statement, Braverman simply signed the blank statement with the fictitious name and left it to the insolvent Ness to fill in the financial data.*fn1 At no time did Braverman provide Ness with any information concerning his actual financial situation.
Later, when the note became due, it was renewed by using renewal notes signed by Braverman in the fictitious name.
Furthermore, when difficulties arose with regard to the false address given for Peter Weis, Braverman arranged for a second false address, that of his nephew.*fn2 When questioned by his nephew about the bank correspondence, Braverman simply told him to "throw it out."
The evidence also indicated that although Braverman originally refused to secure a second "Peter Weis" loan for Ness, funds from that $20,000 loan, once secured by Ness, were used to place a particular commodities account in a credit position. Braverman's handling of this account had generated over $3,500 in commissions for him until a deficit position forced a halt to the trading. Once restored to a credit position, the account generated a further $5,500 in commissions for Braverman. Moreover, the evidence indicated that at some point Braverman signed the fictitious name to a second blank financial statement which Ness completed and submitted to the bank.
The fact that Braverman was willing to repay the loans and did in fact do so does not negate his intent to defraud. United States v. Acree, supra at 1118; United States v. Fortunato, 402 F.2d 79, 80-81 (2d Cir. 1968), cert. denied, 394 U.S. 933, 22 L. Ed. 2d 463, 89 S. Ct. 1205 (1969).
The question of Braverman's intent was a matter for the jury to decide. The jury was aware of Braverman's illness during the pertinent period as well as the defendant's contention that he had merely been duped by Ness. However, given the facts outlined above, we cannot say that the evidence was insufficient to support the jury's verdict.
2. Count 1 charged a conspiracy involving Braverman, Ness, and two officers of the Steel City National Bank, Stanley Johnson and Charles Helms. The conspiracy, as charged, had three objectives: (1) the willful misapplication of bank funds, (2) the making of false entries in bank records, and (3) the submission of false statements to the bank. The defendant argues that the evidence was insufficient to prove Braverman's involvement in the first two objectives of the conspiracy. Braverman contends that the only conspiracy with ...