Eric K. Lam was convicted by a jury of one count of conspiracy to commit bank fraud, 18 U.S.C. § 371, and six counts of bank fraud, 18 U.S.C. § 1344, based on an alleged check-kiting scheme involving three federally insured banks. At the close of the government’s case-in-chief, and again in а post-trial motion, Lam moved for judgment of acquittal. The district court 1 denied the motion. Lam appeals, arguing that: (1) the government failed to prove the fraudulent representations essential to bank fraud; and (2) the government failed to prove thе identity of Lam as the perpetrator of the charged bank transactions in the substantive fraud counts. We affirm the district court.
I.
“In considering a district court’s denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict.”
United States v. Big Crow,
On October 4, 2000, Lam opened a bank account at each of the three named banks with an initial $100 cash deposit. On October 10, 2000, Lаm and his two accomplices began making deposits into and withdraw *870 als from the accounts. They continued to make deposits and cash checks on the accounts until October 17, 2000. Many of the transactions involved “split deposits” in which Lam would prеsent a deposit check for several thousand dollars but ask for a significant portion back in cash. 2 A total of thirty-one checks totaling $37,721.11 were deposited into the three accounts from October 10 to October 16, 2000. Twenty-one of the cheсks were returned for insufficient funds, totaling $36,848.11. Thus, the net deposit in all the accounts was $873. The government’s expert concluded that between October 10 and October 17, 2000, Lam received approximately $25,000 from the scheme.
The proof of the cheсk kiting scheme consisted of testimony from bank personnel, and an IRS Special Agent who analyzed the accounts and the bank records of deposits and withdrawals from the accounts. The testimony and the exhibits showed multiple banking transactions at differеnt branches of the same banks throughout the week of October 10, 2000. Some of the transactions involved checks written from one Lam account to another or to one of his accomplices, some involved check deposits drawn on closed accounts from several banks, including Wells Fargo, in the name of Minh Nguyen, and others involved traveler’s checks purchased with funds from one of Lam’s accounts. Sandra Torrey, a bank teller, specifically identified Lam as the person who conducted a transaction at a branch of the First Bank of Missouri. 3 Ms. Torrey later alerted police, on October 17, 2000, by which time Lam’s account had been frozen, that Lam had just left the branch office after picking up blank deposit slips and unsuccessfully аttempting to use a branch ATM. Using the information and vehicle description she provided, police located Lam, with two other men, four blocks away at a branch of the Commerce Bank. Lam and the two others were arrested, and a pad of blank checks in the name of Minh Nguyen was found in the car.
At the close of the government’s case, Lam made a written motion for judgment of acquittal. Lam claimed that the government had failed to prove that he was the person who executed thе scheme to defraud the banks, and that Ms. Torrey’s identification to an uncharged transaction was not sufficient to establish his role in the charged offenses. The district court denied the motion, finding sufficient circumstantial evidence to establish Lam’s part in the сharged fraud transactions.
Lam subsequently testified on his own behalf, during which he admitted opening the three bank accounts, and depositing checks and traveler’s checks into the accounts every day during the week of October 10, 2000. The defense theory оf the case was that Lam was an unknowing pawn in a scheme by Heip Vu, one of the men with whom he was arrested on October 17. Lam testified that he believed the checks were valid payment for two diamond rings from his previous marriage that he was selling to Vu fоr $10,500, and that Vu had instructed him to open three accounts to facilitate faster payment by multiple small checks rather than one large check. According to Lam, Vu told him he could keep the rings as collateral until the payment checks сleared the bank. Lam admitted going to multiple bank branches every day to conduct transactions. He further admitted receiving sig *871 nificantly more cash from the transactions than the $10,500 that he claims Vu owed him for the rings.
Lam was convicted of all charges. In а post-trial motion for judgment of acquittal, Lam renewed his challenge that the government had not properly identified him as the perpetrator of the substantive fraud charges. Lam also argued that the government indicted, and prosecuted him, only undеr subsection two of 18 U.S.C. § 1344, 4 and failed to prove the false or fraudulent representation or promise required under that subsection. Lam argued that the government’s reliance on subsection one—which would encompass a check-kiting scheme-was a post-hoc justification which violated his due process rights under the Fifth Amendment because he was unaware that the government was proceeding under that theory of prosecution. The district court rejected Lam’s contention that the govеrnment had changed tack, finding instead that the government had from the beginning alleged, and prosecuted, a § 1344(1) “scheme to defraud” the banks by means of a check kiting scheme.
II.
Lam’s appeal from the denial of his motion for judgment of acquittal challеnges the sufficiency of the evidence on all counts. To prevail, Lam “must show that the evidence presented by the government was not sufficient to permit a reasonable jury to find him guilty beyond a reasonable doubt.”
United States v. Hart,
With regard to Lam’s argument that the government failed to present sufficient evidence of identity to sustain the bank fraud charges, we agree with the district court that circumstantial evidence in this case was sufficient for a reasonable jury to conclude beyond a reasonable doubt that Lam was the perpetrator of the charged transactions in the substantive fraud counts. Lam’s direct testimony proved his participation in many of the charged transactions and circumstantial evidencе inferred his involvement as well. Lam argues that the government must directly link Lam to each charged transaction by witness identification, but it is well-settled that a jury is entitled to consider circumstantial evidence exactly as it would direct evidence.
See Lenza v. Wyrick,
In his opening appellate brief, Lam opines, “Although circumstantial evidence may support an inference that Mr. Lam
*872
was involved in these transactions, the evidence also supports an inference that a person other than Mr. Lam presented such checks.” Appellant brief, at 16. This may be true, but it does not support Lam’s argument in this case. As we recently restated, “[t]he facts and circumstances relied on by the government must be consistent with guilt, but they need not be inconsistent with any other hypothesis, and it is enough to convict if the entire body of evidence is sufficient to convince the jury beyond a reаsonable doubt that the defendant is guilty.”
United States v. Chavez,
With rеgard to Lam’s second argument — that the evidence was insufficient to prove the requisite fraudulent representation or promise for bank fraud — we again agree with the district court’s resolution of the issue. Lam’s argument on this point is somewhat convoluted in that Lam does not appear to contest the sufficiency of the evidence to support a conviction under 18 U.S.C. § 1344(1), which makes it a crime to scheme to defraud a financial institution, including,
inter alia,
through check-kiting schemes.
See, e.g., United States v. Whitehead,
We agree with the district court that both the indictment and trial evidenced the government’s prosecution of a check-kiting scheme which falls within 18 U.S.C. § 1344(1), and that the evidence suрported the jury’s conviction on each count. Review of the indictment in its entirety supports the conclusion that the indicted facts alleged a check-kiting scheme, and hence a violation of § 1344(1), despite the absence of that speсific term or the statutory subsection. Although the indictment includes language from both subsections of the statute, the “manner and means” and “overt acts” set forth in the indictment adequately describe a check-kiting scheme. Review of the trial transcript demonstrates that the government proceeded on a check-kiting theory at trial as well. The government discussed check-kiting in both its *873 opening statement and closing arguments, and the special agent’s testimony and exhibits were clearly intended to explain to the jury how the defendant used the different accounts in concert to inflate the balances and facilitate the eheck-Mting scheme. Because we see nothing inconsistent in the government’s conduct throughout the prosecution of this case, Lam cannot establish a due process violation. And because the evidence was more than sufficient to prove a check-kiting scheme, the district court properly rejected Lam’s sufficiency challenge.
Accordingly, we affirm the distriсt court’s denial of Lam’s motion for judgment of acquittal.
Notes
. The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.
. For example, on October 16, 2000, Lam deposited a check for $2,290 and received $2,000 back in cash.
. The October 12, 2000, transаction about which Ms. Torrey testified was not one of the substantive counts charged in the indictment.
. The indictment did not specifically reference either subsection one or two, but rather alleged, generally, a violation of 18 U.S.C. § 1344, which provides:
Whoever knowingly executes, or attempts to execute, a scheme or artifice—(1) to defraud a financial institution; or (2) to obtain any of the moneys funds, credits, assets, securities, or other property owned by, or under the custody or control of, a finanсial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
. "[A] check is not a factual assertion at all, and therefore cannot be charаcterized as 'true' or 'false.' ”
Williams v. United States,