United States v. John Markert
2014 U.S. App. LEXIS 23884
| 8th Cir. | 2014Background
- Markert, as Pinehurst Bank President, approved five nominee loans to Wintz's associates to cover a nearly $1.9 million overdraft.
- Proceeds were funneled to Wintz’s account by disguising them as investments in Cue Properties and then transferring to McCallum Transfer.
- Following discovery of check-kiting, the true borrower's identity was revealed; Markert was terminated in 2010 and the bank was later closed in 2010.
- Markert was convicted of willful misapplication of bank funds under 18 U.S.C. § 656; the district court initially applied a loss-based 16-level enhancement.
- On remand, the government argued loss equaled the nominal loan face amount minus limited credits; the district court re-imposed the same 42-month sentence.
- Our prior opinion remanded to determine the net value of the nominee loans, as loss could not be simply the loan face amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| How is actual loss calculated for § 2B1.1(b)(1)? | Markert | Markert | Remanded; actual loss may be zero on remand |
| Did the government prove actual loss by the preponderance of the evidence on remand? | Markert | Markert | No; government failed to prove loss with properly admissible evidence |
| Whether credits against loss (Note 3(E)) apply to reduce loss for sentencing. | United States | Markert | Inapplicable given lack of initial loss evidence; burden not met |
| Appropriate remedy when the government fails to prove loss after remand | United States | Markert | Sentence vacated; remanded to sentence to time served |
Key Cases Cited
- United States v. Hartstein, 500 F.3d 790 (8th Cir. 2007) (defines actual loss as reasonably foreseeable pecuniary harm)
- United States v. Thomas, 422 F.3d 665 (8th Cir. 2005) (illustrates loss measurement where bank disbursements occur)
- United States v. Gammage, 580 F.3d 777 (8th Cir. 2009) (addresses procedural posture of sentencing on remand)
- United States v. Holthaus, 486 F.3d 451 (8th Cir. 2007) (standard of review for factual findings and de novo on guidelines interpretation)
- United States v. Barket, 530 F.2d 181 (8th Cir. 1975) (elements of willful misapplication of bank funds)
- United States v. Willis, 997 F.2d 407 (8th Cir. 1993) (definition of nominee loans and related fraud concepts)