*1 all, Browning official After tion. could be estab performance
reporter’s output only by comparing lished actually during a committee said what was Thus, claim meeting. litigation required legis have examination would Browning, acts. See lative event, under the Brown even 930. formulation, prevails, Plaintiff here be satisfy job not duties do cause act. Her legislative standard for a Gravel and others constituents discussions integral part “an delibera were not by processes which tive and communicative participate committee and Members Gravel, 408 proceedings.” House U.S. 2614. The “communicative 92 S.Ct. are only processes” referred to Gravel Congress within itself. those V. Conclusion cause of action hold Plaintiffs
We the CAA is not barred under Debate We or Clause. REVERSE Speech court and dismissal the district proceedings REMAND for further consis- opinion. tent with this America, STATES of UNITED Plaintiff-Appellant, WILLIAMS, Brenda J. Defendant-
Appellee. No. 03-15395. Appeals, United States Court Eleventh Circuit.
Nov. 2004. *2 EDMONDSON,
Before Judge, Chief FAY, Judge, *, Circuit and CORRIGAN Judge. District FAY, Judge: Circuit juryA returned a verdict of against Defendant, Williams, Brenda J. on one count of bank aiding fraud or abetting bank fraud.1 The Government maintains that the Defendant made false representations to bank officials in an at- tempt to have them extend credit to her daughter. Citing insufficiency of the evi- dence, the trial judge granted the Defen- dant’s motion for judgment acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The Government now appeals the judgment. district court’s The Government contends that the district court improperly viewed the light most favorable to the Defendant and incorrectly portions credited those that conflicted with the Gov- ernment’s evidence. After careful consid- eration, we hold that the district court erred in entering the judgment acquittal and reverse and remand.
Background
The Defendant charged, in Count Eleven of an indictment, eleven count bank fraud in violation of 18 U.S.C. 1344(2), § or aiding and abetting bank fraud violation of 18 U.S.C. 2. The daughter, Tammy Williams Hess, Nancy FL, Pensacola, J. E. Bryan Neely (“Neely”), primary defendant Wilson, Tallahassee, FL, for Plaintiff-Ap- Indictment, named in the pled guilty to pellant. four of the eleven charged counts against George F. Murphy (Court-Appointed), her, including Count Eleven. The Defen- Valparaiso, FL, Defendant-Appellee. dant, charged only count, one pro- ceeded to trial. Count Eleven charged that the knowingly willfully * Timothy Corrigan, Honorable J. abetting bank fraud. The verdict makes Judge District for the Middle District of Flori- finding distinction in the Defendant da, silting by designation. ''Guilty'' of Count Eleven. 1. Count Eleven charges of the Indictment or, alternative, bank fraud aiding in the Downing re- September and artifice to obtain On “a scheme
executed Rut- monies, telephone call from credits owned ceived Chris funds and MECU, control the Mon- custody ledge (“Rutledge”), the CEO of under the *3 letter, (‘MECU’), Union Employees Credit a referred' santo who asked about institution, by financial federally a insured Tammy Neely.” The let- to “Dr. Williams and materially false fraudulent of means Neely held a six-month ter stated representations promises.” and pretenses, (“CD”) De- of under the deposit certificate case, the of At the close the Government’s in excess account number valued fendant’s judgment acquit- for a of Defendant moved million, despite the fact that of $6.7 The tal, judge the trial denied. which $2,050. only CD was worth then and renewed testified letterhead, con- was The letter on MECU. judgment acquittal. Reserv- motion for Downing’s signature, and dated tained was motion, judge the trial ruling on the 2002, pro- Downing date had May jury, case to the go allowed the to Neely regarding with the letter vided After guilty. a jury returned verdict $5,000 Downing denied of her loan. status to the scheduled sen- prior the verdict a writing such letter. hearing, the district court issued tencing Neely had several outstand- Apparently, judgment acquit- granting the its order at term loans First National ing short a tal, justify to citing insufficient evidence Crestview, $138,000. totaling The Bank of conviction. overdue, to show loans were money at National that she had First Facts2 MECU, Neely earlier Downing’s altered husband, Jimmy and her The Defendant presented it to National. letter First Williams, savings at joint held a account explained First National that Neely to a Neely, had daughter, Their MECU. signed had from the money come sale outstanding well loan savings as belonged Series baseball3 World to According account at MECU. Wenda First then grandfather. National to her supervisor a at the Downing (“Downing”), verify the at MECU to Rutledge contacted MECU, in May Branch of Milton letter. requested setting a out the Neely letter Downing day learned after Downing provided of her loan. status letter, Defendant called her altered letter, that' Neely which stated ex- money wire that she inquire about a $5,000 Septem- loan in she had received a into her to. transfer account. Jimmy paid pected 1999 and that Williams ber Downing that was ex- $2,016.38. told the loan to down were, fact, below, Neely's two baseballs explained where returns 3. There 2. As World baseball possession: Series and the district court sets verdict signed by the York Yankees and a 1972 New entering judgment verdict aside that signed by the Detroit World Series baseball insufficiency acquittal based $6 Neely Tigers. valued the baseball evidence, court is the decision of district $2 million. and the 1972 baseball at million to no deference. United States entitled is Though analysis, our there not material to (11th 1988). Greer, Cir. throughout evi- inconsistency the record some Therefore, pre set forth herein are facts alternating to one references dence due light Gov in a most favorable to the sented Other than versus two baseballs. baseball ernment, regardless of whether the $8 can be inferred references what million, United States v. is direct or circumstantial. Neely pur- whether was unclear Burns, Cir. only one base- porting to or both have sold balls. good. from the sale of an pecting million million check was noti- When antique eight days. The Defendant also fied by First National were there (1) sought daughter, Neely, to: add her check, Neely insufficient to clear funds (2) account; her husband from remove and the Defendant stated that they would account he would spend because go fix problem. They MECU (3) money she expecting; make subsequently informed First National beneficiary on her CD. situation had been resolved they simply awaiting MECU—that were The Defendant visited MECU the fol- money wire into the account. 13, 2002, and, lowing day, September ac- *4 cording appeared to testimony, nervous Neely and Defendant requested then explained and excited. The Defendant meeting a Rutledge, of CEO Downing antique that was a baseball MECU, So, their regarding account. time, family that had been for in her some 18, 2002, October a meeting was be- held person money and that a who “had more Defendant, Neely, tween Rutledge, brains,” than purchasing was ball. Special Agent and Steve Harker of the The Defendant Downing also told that she FBI, meeting FBI. taped by The was Neely money and intended to invest the during meeting, and Agent Harker real estate ventures. posed as an outside auditor for the bank. September On the Defendant The of transcript meeting showed Neely and her husband added as a benefi- that, at of meeting, the outset account, ciary to their savings and on Oc- Defendant whether asked million $8 15, 2002, tober Defendant Neely and wire had She Rutledge arrived. then told attempted joint checking a open account Agent that Harker the baseball “was MECU, at the Milton Branch but were something that keeping we’ve been as a day, refused. Later that same the Defen- time, heirloom for a long gonna it’s not opened dant and her a checking husband (Octo- any do us good after we’re dead.” account at branch in MECU’s main Pensa- Transcript, ber Gov’t Exh. at 10B (their Neely cola with Nelson Jaime 5). explained The in- Defendant that she daughter) other as beneficiaries. The De- tended to transfer some of expected anyone fendant never informed at National, wire to First but that she would MECU’s main that branch she had not money leave some of the her account permitted been an account open earlier with MECU. The Defendant also request- day. provided that was Defendant ed a cashier’s check to take to Na- First starter checks for the account. The tional, appeared and when it prog- Defendant knew that account beneficiaries ress being made at the meeting, the permitted MECU were not to write Neely expressed they checks on the account. would makes efforts retrieve additional (cid:127)Neely then went to First National on i.e., transfer, information about the wire 16, 2002, wrote a October million sale, bill of attorney of handling name check from the Defendant’s MECU starter transaction. open money checks to a market account. At the conclusion Government’s Neely directed million of the mil- $5.67 case, the judgment Defendant moved for money lion into the market and the re- acquittal, arguing that she did not have checking mainder into the she account held n 17, 2002, criminal intent because with the Defendant. October she believed On First telephone daughter National received call when told her that she agent advising court, from FBI that Neely’s had sold the baseballs. The district they motion, finding question solve the of what believe however, denied they and what don’t believe. fact as to question of intent. fraudulent (Gov’t Therefore, Exhibit 10B at permitted Federal Rule of Criminal Defendant’s defense The basis 29(b), ruling court Procedure deferred fact, was, victim her was that she motion, reserving pend- its on the decision lies. Significant fraud and return sentence. analysis, the elect- Court’s verdict, but the then returned in her defense. ed to take the stand own adjudication guilt court until withheld believed The Defendant testified sentencing. much Neely she told her how when worth, and were various other baseballs sentencing, the court issued Just before had can- deceptions, including granting its the Defendant’s motion doctor, cer, and had earned was medical finding insuffi- judgment acquittal, a Ph.D. The Defendant contended cient a conviction of main opened the account she MECU’s opinion, bank fraud. the court’s *5 nothing in to do with branch Pensacola proof did not the Government’s establish joint attempt open her to account guilt beyond a Defendant’s reasonable Neely, and that after the appeals this doubt. Government Rutledge, meeting with judgment.
called National at the direction of First Discussion Neely to advise that funds would be addition, soon. In available jury returns a verdict of Where that knew had taken admitted she guilty and the court sets aside that district some of the starter checks from new judgment acquittal by entering verdict that of the account but she unaware evidence, insufficiency of the based on just to prior until amount of check “is enti of the district court decision meeting Rutledge. United States v. tled to no deference.” Cir.1988) (11th Greer, 1447, F.2d 1450 850 that
The Defendant also admitted she Hayes Corp., States v. Int’l (citing United ownership lied about the to bank officials (11th Cir.1986)). 1499, 786 F.2d 1500 baseballs, and that knew that of the Therefore, we decide “whether the must Neely’s they belonged to husband. She evidence, light in a most favor examined also that had done research via stated Government, to able was sufficient to year to of the the Internet determine the support jury’s conclusion that de signatures, failed balls based on their but guilty beyond a reasonable fendant was question valuation States v. Varko (citing doubt.” Id. United baseballs at million. (5th Cir.1980)). 84, F.2d nyi, 611 85-86 rested, the Defendant After the defense credibility All must be made choices judgment of ac- renewed her motion (citing verdict. Id. support of responded: The district court quittal. Gianni, 956, F.2d v. 678 I what Ms. Williams testified believe (11th Cir.1982); United States v. 958-59 Now, I it’s not what from stand. Cir.1979)). (5th 939, Burns, 941 believed, jury but what believes among case, juryA free choose think is so I that controls. of the evidence. jury reasonable constructions certainly evidence that There Vera, v. 1357 States way. keep find But I will United could either Cir.1983). (11th Thus, not neces- advisement, “[i]t is re- under let 1324 every rea-
sary
alleged
that the evidence exclude
the MECU until
wire transfer
arrived,
hypothesis
or be
required
sonable
of innocence
the court was
to resolve
every
wholly
inconsistent with
conclusion
in favor of
conflicts
the evidence
except
guilt, provided
that of
a reasonable
accept
all
in
Government
reasonable
that
trier of fact could find
the evidence
ferences
tend
Govern
guilt beyond a
Ward,
establishes
reasonable
case.
ment’s
See United States v.
v. Young,
(11th Cir.1999).
doubt.”
States
F.2d
United
F.3d
This
(11th Cir.1990).
615, 618
applies regardless
test
of whether the evi
dence is direct or circumstantial. United
argues
On
appeal,
Government
Macko,
in granting
post-
court erred
district
Cir.1993); Burns,
Although requesting district the Harker revealed the Defendant believed testimony Defendant’s and did not million cashier’s check. The believe $6 requested reasonably she ever action from have could inferred that intent, 4. particular principals employed While the Government must show means to carry knowledge activity. need not out show Defendant's the criminal Id. previously This Court has held that cir- requested provide that MECU Defendant time, may prove knowledge check at that her with the cashier’s cumstantial evidence Macko, to the wire transfer arrived MECU. generally before and intent. See by supported is further an inference Such at the case here. F.2d 1538. Such is actually be- Rutledge’s that he In addition to the aforementioned wanted MECU lieved that of guilt, evidence Defendant elected to to million cashier’s check issue testify and to in her own take stand meeting. The showed taped evidence “Defendants in criminal trials defense. willing to re- that the lie to obliged testify. not And a defen are. as well peatedly for her benefit present who chooses to a defense dant gain (e.g., misrepresentations own bolstering of runs substantial risk the true owner- regarding to bank officials d case.” Government’s Unite States v. baseballs). ship million alleged Bennett, Cir. by court was troubled The district important, a statement “Most misrepresenta- absence of “some material defendant, jury, may if disbelieved to attempt tion to obtain by the defendant be considered as substantive evidence of money deposit or credit in addition to guilt.” the defendant’s (Court’s Order, checks.” Docket bad (11th Cir.1995). Brown, 5-6). The Entry 58 at court found “By ‘substantive’ we mean evidence ad “were, misrepresentations the Defendant’s purpose proving for a fact in duced best, only tangentially related the $6 given opposed issue as 6. regard million check.”5 Id. at With (i.e., purpose discrediting witness defraud, intent the dis- Defendant’s belief), unworthy is or showing that he showing trict court found no evidence testimony.” his corroborating Id. This knowledge million of the $6 that “when a defendant Circuit has said just meeting. prior taped check until testify, he runs risk if chooses “finding” problem with such jury might conclude the disbelieved upon court based it the testi- district *7 of his is true.” Id. opposite Defendant, mony overlooking of the con- omitted). (citations presented by evidence Govern- flicting was free to disbelieve the jury ment. testified under oath that' testimony of Defendant in favor of the independent knowledge of the she no testimony presented by the Government. baseballs, transfer, value .wire of the million check—that she relied or certainly
The evidence was sufficient daughter. what told her She on knew that there prove that get not trying that she was also testified baseballs, was was no sale there the bank to issue a million cashier’s transfer, aiding and that she was wire check, and credit to her abetting essentially bank fraud. extend federally-insured bank extend cred 5. relied Williams v. Unit vince The district court 279, 3088, States, ed 458 S.Ct. 73 U.S. it can violate 18 U.S.C. 1344. 102 (1982) proposition 1555, (11th for L.Ed.2d 767 Swearingen, Cir. v. 858 F.2d 1557 check, merely writing depositing a bad or or 1988). Also, necessary it is not for Gov kiting taking part in a scheme even check that the Defendant ernment to demonstrate Although we bank does not amount to fraud. in personally from the artifice benefited merely passing fraudu have concluded that United be sustained. for conviction fraud, constitute bank this lent check cannot Williams, (11th v. F.2d 1402 Cir. States 728 specifically making found that addi Court has con representations false in order to tional 1326 daughter, government’s
and her
before the arrival
erated the
fundamental obli
However,
jury, hearing
wire
transfer.
gation to
its
establish
case-in-chief.” See
demeanor,
seeing
words
(citing
id.
1293
United
Rudi
the Defendant’s
entitled to disbelieve
testi
(11th
sill,
1260,
Cir.1999);
187 F.3d
1268
and,
fact,
in
mony
opposite
to believe
Martinez,
United States v.
Brown,
of what
said.
F.3d at
See
(11th Cir.1996);
United States v. Me
314.
(11th Cir.1996)).
jia, 82 F.3d
Where some corroborative evidence
view,
my
in
remains unclear
(as
guilt
charged
for
exists
offense
when negative
Eleventh Circuit
inferences
case)
true
this
and the defendant takes
guilt
from defendant’s denial of
can be
defense,
in her
the stand
own
the Defen
by an appellate
remedy
used
court to
testimony, denying guilt, may
dant’s
estab
government
otherwise
deficient
case.
lish,
itself,
the offense. Id.
elements
Both Brown and McCarrick indicate that
applies
special
at 315. “This rule
negative
posi
such
inferences can become
force
proved
where
elements
be
guilt,
only
tive evidence of
but
where there
highly subjective
conviction include
ele
is “some
guilt.”
corroborative evidence of
example,
ments: for
the defendant’s intent
How much corroborative evidence is neces
knowledge.”
or
Id.
sary,
establishing
short of
guilt
evidence
find that
Consequently, we
there was
beyond a reasonable doubt? Neither
support
jury’s
sufficient evidence to
Brown nor
that ques
McCarrick answer
Thus,
guilty verdict on bank fraud.
we
recognized
tion. Other courts have
reverse
remand for the district court
problem and have held
an appellate
jury’s
reinstate the
verdict and sentence
may
court
not affirm “on
supposition
Defendant,
Williams,
Brenda J.
accord-
the defendant’s demeanor filled the
ingly.
gap
government’s
proof’
appel
lest
REVERSED AND REMANDED.
concerning
review
sufficiency
late
the evidence
meaningless
become
cases
CORRIGAN,
Judge, concurring:
District
where the defendant
testifies
denies
that,
I concur
holding
the Court’s
guilt. See
Zeigler,
United States v.
giving
government’s
every
(D.C.Cir.1993);
also,
845-46
see
doubt,
benefit
there was sufficient
Sliker,
(2d
United States v.
there insufficient evidence to notwithstanding verdict that the defendant testified guilt, and denied ex- plained: cases since Brown reit- “Our have