UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE ERNEST SKOUTERIS, JR., Defendant-Appellant.
No. 21-6221
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
October 19, 2022
File Name: 22a0229p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:18-cr-20254-1—John Thomas Fowlkes Jr., District Judge.
Decided and Filed: October 19, 2022
Before: McKEAGUE, THAPAR, and READLER, Circuit Judges.
COUNSEL
ON BRIEF: Josie S. Holland, HOLLAND LAW, Memphis, Tennessee, for Appellant. Carroll L. Andre III, UNITED STATES ATTORNEY‘S OFFICE, Memphis, Tennessee, for Appellee.
CHAD A. READLER, Circuit Judge. George E. Skouteris Jr. is a former college football player. Following his playing days, Skouteris moved from the stadium to the courtroom, practicing as a personal injury lawyer. His client service, however, was more in the form of a turnover than a touchdown. Case in point, he routinely settled cases without client permission, forged client signatures on settlement checks, and then deposited those checks into his own account. Complaints from angry clients mounted, as did interest by state and federal authorities.
At his jury trial for federal bank fraud, Skouteris argued that his days on the gridiron had left him with mental impairments—including possible chronic traumatic encephalopathy (CTE)—that cast doubt on whether he had the requisite state of mind to commit bank fraud. The jury disagreed and found Skouteris guilty of the charged offense. He was sentenced to 30 months’ imprisonment and ordered to pay nearly $150,000 in restitution. On appeal, Skouteris argues that his football injuries warrant a replay of his jury trial or, in the alternative, his sentencing. We disagree and therefore affirm.
I.
Memphis attorney George E. Skouteris Jr. practiced plaintiff-side, personal injury law for clients injured in automobile accidents. One of those clients was Tiffany Williams. She sought Skouteris‘s services in the aftermath of a car accident that killed her fiance and put Williams in the hospital. Skouteris agreed to take on the representation. But from that point on, Williams struggled to get updates from Skouteris about her case. Eventually, she learned that Skouteris had settled the case (for $197,480) without her knowledge. Worse yet, Williams discovered that Skouteris had signed her name to the settlement check and deposited the proceeds into his account at Trust One Bank. With mounting medical bills and other life expenses, Williams pressed Skouteris for the money. But Skouteris gave her only “bits and pieces” of the settlement while assuring her that he was working with lienholders to resolve her pending bills.
Williams‘s experience with Skouteris, regrettably, was not unique. Skouteris continued his practice of unauthorized settling, forging, and then depositing those monies in his Trust One Bank accounts, at the expense of other clients, too. Some, like Williams, were lucky enough to receive from Skouteris a small piece of the settlement years after the fact. Others never saw any of the settlement proceeds from Skouteris.
Unsurprisingly, Skouteris‘s clients were not happy. A few filed complaints with Tennessee attorney disciplinary authorities. Another contacted the Shelby County District Attorney‘s office. Eventually, local authorities arrested Skouteris on state stolen property charges. He was also disbarred. And a federal grand jury indicted him for seven counts of bank fraud. The indictment covered activity from 2007 until 2013, but it did not specifically reference Skouteris‘s representation of Williams.
The central issue at Skouteris‘s federal trial was whether he had the requisite intent to commit bank fraud. Jurors heard from a parade of Skouteris‘s former clients. One was Williams, whose testimony was limited to proving Skouteris‘s intent under
The jury also heard from two psychologists who examined Skouteris—a defense expert and a government expert. The defense expert maintained that Skouteris suffered from a “major depressive disorder,” “alcohol use disorder,” and “seizure disorder,” the latter of which began to manifest during Skouteris‘s football career. The expert concluded that these disorders, taken together, would have “significantly limited” Skouteris‘s “ability to organize his mental efforts during the” period of the alleged offenses, producing the “errors” in his handling of client settlements. The government‘s expert agreed that Skouteris suffered from depression and alcohol use disorder but concluded that Skouteris was “capable of having the mental ability to form and carry out complex thoughts, schemes, and plans.”
At the charging conference, the parties largely agreed on the scope of the jury instructions, including how to explain the state of mind Skouteris needed to be found guilty. The parties also agreed to include an instruction explaining the limited purpose of the
evidence of “diminished mental capacity” could provide “reasonable doubt that” Skouteris had the “requisite culpable state of mind.” The district court declined to include the instruction.
The jury returned guilty verdicts on all seven counts. At sentencing, the district court determined Skouteris‘s sentencing range was 46 to 57 months. As Skouteris‘s criminal history was minimal, the nature of Skouteris‘s offenses largely drove the calculated range. Skouteris‘s offense level
Skouteris‘s conviction also required him to make restitution to the victims of his offenses. See
II.
A. Skouteris first takes aim at the sufficiency of the evidence supporting his conviction under
on appeal, Skouteris has forfeited any argument that the indictment, by including both
Although we ultimately opt to frame
1. The government need not demonstrate proof of actual loss by a bank to satisfy
The jury heard ample evidence that Skouteris engaged in such conduct. Testimony from more than a half dozen witnesses as well as voluminous physical evidence painted a clear picture
of Skouteris‘s legal practice. Without client awareness or approval, Skouteris regularly affixed his client‘s signature on the client‘s settlement check, resulting in Trust One Bank depositing the check‘s proceeds into Skouteris‘s own account. In so doing, the bank was wrongfully “‘deprived of its right’ to use” those funds, satisfying
Skouteris pushes back. He claims he had either actual or apparent authority to cash the checks. Yet he concedes that his argument is irrelevant as to virtually all of the clients named in the indictment. And even then, his argument has no legs. For starters, Skouteris identifies no evidence suggesting that the remaining clients expressly authorized him to settle any pending claims they had, let alone cash any resulting settlement check. Instead, the jury heard evidence that each client learned of the settlement well after it occurred, contrary to Tennessee law, which requires an attorney to receive express authorization from his client detailing settlement specifics before surrendering his client‘s rights. See, e.g., Borena v. Yellow Cab Metro, Inc., 342 S.W.3d 506, 509-10 (Tenn. Ct. App. 2010). Skouteris‘s apparent authority argument is equally flawed. Apparent authority is established by the “acts of the principal.” Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432-33 (Tenn. 2008). Yet Skouteris points to no evidence showing that his clients clothed him “with the appearance of authority” to cash an unknown settlement check. Id. at 433 (quoting S. Ry. Co. v. Pickle, 197 S.W. 675, 677 (Tenn. 1917)).
With Skouteris lacking any authority (actual or apparent) to settle his clients’ claims, it is difficult to believe he was
client never knew existed. In fact, after cashing a client‘s settlement check, Skouteris either ignored the client‘s calls or falsely claimed that he was still working on a settlement, hardly the conduct of one fully clothed with the authority to endorse a settlement check on the client‘s behalf.
Skouteris has one last theory. He argues that at least one of his clients ratified his endorsement of her settlement check by accepting partial proceeds of the settlement after the fact. Ratification may redeem the underlying transaction—in this case, the settlement reached by Skouteris. But it does not “relieve” Skouteris of “criminal liability” for falsifying endorsements on the settlement checks and depositing the proceeds into his bank accounts. See
2(a). That leaves the “intent to defraud” element. And it leads us to ask what must the government show to satisfy the “intent” aspect of the crime? The answer is not straightforward. “Intent” as used in the criminal law setting has “always been [a] rather obscure” concept. Wayne R. LaFave, 1 Subst. Crim. L. § 5.2 (3d ed. 2021). Traditionally, “intent” encompassed “knowledge.” Id. So a defendant‘s knowledge of the “practical certainty of the results” of his actions satisfied the “intent” state of mind requirement. Id. § 5.2(b). The more “modern approach,” however, has been to distinguish between the mental states of “intent” and “knowledge“—with the former being satisfied when a defendant acts “purposely” consistent with his conscious objective to “cause such a result.” Id. (quoting Model Penal Code § 2.02(2)(a)(i)). It is not entirely clear whether our reference in prior bank fraud cases to the “intent to defraud” element suggests the traditional or modern view of “intent.” At times, we have described
equated “intent to defraud” with having the “purpose of causing a financial loss to another or bringing about a financial gain to oneself.” See United States v. Kerley, 784 F.3d 327, 343 (6th Cir. 2015) (quoting United States v. Olds, 309 F. App‘x 967, 972 (6th Cir. 2009)); see also United States v. Benchick, 725 F. App‘x 361, 365 (6th Cir. 2018); United States v. Dowlen, 514 F. App‘x 559, 563 (6th Cir. 2013).
This latter view—that
So where, one might ask, did the “intent to defraud” element—and its connotation of a purposeful mens rea—come from? By all accounts, a nearly three-decades old decision by the First Circuit. To reconstruct that history, begin with our adoption of an “intent to defraud” element in United States v. Hoglund. See 178 F.3d at 413 (creating the three-part test); see also supra at 5 (tracing the test to Hoglund). Yet Hoglund seemingly crafted its three-element test from a decision by the First Circuit, United States v. Brandon, 17 F.3d 409 (1st Cir. 1994). Hoglund, 178 F.3d at 413. Brandon thus deserves renewed attention. The decision started innocently enough: it employed a three-part test for measuring violations of
another, or bringing about some financial gain to oneself.” Id. at 425 (citations omitted). In line with other purposivist decisions of that era, Brandon viewed a state of mind requirement as implicit in
The net result was a mens rea of purposefulness being grafted onto the statute. Doing so, however, “read[] the word ‘knowingly’ out of the statute.” Cf. Loughrin, 573 U.S. at 371 (Alito, J., concurring) (distinguishing between what the statute requires concerning the “design of the scheme” under
Today, this line of cases is largely a remnant of a bygone era. Especially so following the Supreme Court‘s intervening decision in Shaw. See United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010) (recognizing that an “inconsistent decision of the United States Supreme Court requires modification of the earlier panel decision“) (citations and quotations omitted). Shaw rejected the view that the government must show something “more than [the defendant‘s] simple knowledge that [the defendant] would likely harm the bank‘s property interest” to prove bank fraud. 580 U.S. at 468. And it emphasized that, in view of
need not “prove that” the defendant‘s “purpose” was to deprive a bank of its funds. Id. at 469. In other words,
Ultimately, the significance of the knowledge requirement may only matter at the margins. By and large, “[p]roof that a defendant acted knowingly very often gives rise to a reasonable inference that the defendant also acted purposely.” Loughrin, 573 U.S. at 371 (Alito, J., concurring). In that respect, proof as to the “scheme to defraud” element will almost invariably show a purpose to deprive a bank out of its property. Id. Nonetheless, the text of
(b). Applying our clarified standard to the record before us, a mountain of circumstantial evidence demonstrated Skouteris‘s knowledge that depositing unauthorized settlement checks into his own account was likely to wrongfully deprive the bank of its property. See Staples v. United States, 511 U.S. 600, 615-16 n.11 (1994) (observing that a person‘s knowledge can be inferred from circumstantial evidence). Expert testimony indicated that Skouteris was “capable of having the mental ability to form and carry out complex thoughts, schemes, and plans.” Lay witness testimony was to the same end. Former clients and colleagues described Skouteris as a detail-oriented lawyer who did not exhibit signs of a diminished mental capacity. Jurors also heard that Skouteris repeatedly lied to clients about the status of their settlements, suggesting that he knew he was engaged in deception when cashing the settlement checks. On top of that, the jury heard from a parade of witnesses who collectively explained that for the better part of a decade, Skouteris engaged in this pattern of behavior with more than half a dozen clients, suggesting that his actions were no accident. Consider, for example, that Skouteris continued to forge client signatures even after being confronted by fellow attorneys and sued over his conduct. That evidence is reliable proof that Skouteris knew the likely consequences of his behavior. See Dowlen, 514 F. App‘x at 563 (“[E]ven if the court assumes that Dowlen‘s
criminal intent was not clear before the warning, there is no explanation other than an intent to defraud for his actions after the warning.“); see also Abboud, 438 F.3d at 593-94.
Skouteris‘s arguments to the contrary are many. But none are persuasive. First, he asserts that Shaw requires proof of a “specific intent to deceive.” That quote, however, comes from Shaw‘s description of the petitioner‘s argument. 580 U.S. at 66. And Skouteris otherwise does not grapple with Shaw‘s
B. We now turn to Skouteris‘s challenges to the jury instructions. When a defendant preserves an objection to a proposed jury instruction, we review the refusal to give the instruction for an abuse of discretion. United States v. Hills, 27 F.4th 1155, 1188 (6th Cir. 2022). Such an abuse occurs when (1) the denied instruction correctly states the law; (2) the actual instruction did not substantially cover the denied instruction; and (3) the refusal to give the denied instruction substantially impaired the defense. United States v. Henderson, 2 F.4th 593, 597 (6th Cir. 2021). When a defendant fails to object to a particular instruction, however, we review for plain error. See United States v. Eaton, 784 F.3d 298, 307 (6th Cir. 2015). That requires a showing that the instructions, taken as a whole, were so “clearly wrong” that they produced a grave miscarriage of justice. Id.
Skouteris first argues that there should have been a specific instruction “as to diminished capacity” with respect to his “CTE . . . negating” the state-of-mind requirement. As he preserved this objection, we review for abuse of discretion. Hills, 27 F.4th at 1188. The crux of Skouteris‘s argument is that his proposed instruction would have detailed
In any event, even if Skouteris were arguing that the instruction was needed to negate
Second, Skouteris contends that the trial court‘s instructions failed to “admonish the jury against using” Williams‘s and Levick‘s testimony “for propensity purposes,” in violation of
used. As we presume that juries follow limiting instructions concerning
C. With Skouteris‘s conviction affirmed, we turn to his sentence. Skouteris maintains that his sentence was both procedurally and substantively unreasonable. A sentence may be procedurally unreasonable if, for instance, the district court miscalculates the Guidelines range, considers an impermissible factor during sentencing, or fails to adequately explain the chosen sentence. United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). In contrast, a substantive reasonableness challenge focuses on the length of the sentence itself, see United States v. Clayton, 937 F.3d 630, 643 (6th Cir. 2019), asking if the sentence is “too long (if a defendant appeals) or too short (if the government appeals).” Rayyan, 885 F.3d at 442. Typically, challenges to the reasonableness of a sentence are reviewed for abuse of discretion, meaning we grant relief only for an error of law, a clearly erroneous finding of fact, or where we are otherwise left with the “definite and firm conviction” that the district court clearly erred. See United States v. Hymes, 19 F.4th 928, 932-33 (6th Cir. 2021) (citations omitted). But unpreserved procedural challenges are reviewed for plain error, requiring an obvious error that would result in a miscarriage of justice without reversal. Id. at 933. With this rubric in mind, we turn first to Skouteris‘s procedural error arguments.
1. Skouteris maintains that the district court erred in applying a 12-level enhancement by miscalculating the “loss” amount under
Today, Skouteris argues that the $392,230.57 was overstated because it included amounts where the actual losses suffered by two victims were less than the face value of the forged settlement checks. As this is a new argument, plain error
Skouteris also suggests that unindicted conduct should not be considered as “relevant conduct” when calculating losses under
Finally, Skouteris claims that the district court erred by failing to “put its reasoning on the record as to its computation of total amount of loss.” But any silence by the district court on this
front seemingly traces back to Skouteris‘s own silence on the topic. By all accounts, Skouteris never challenged the computation made in the presentence report. With that in mind, the district court did not plainly err by accepting the calculations therein. See Carter, 355 F.3d at 925 (holding that “[t]he district court is allowed to accept as true all factual allegations in a presentence report to which the defendant does not object“) (citation omitted); see also Gall v. United States, 552 U.S. 38, 54 (2007) (observing that it is “not incumbent on the District Judge to raise every conceivably relevant issue on his own initiative.“).
2. Next Skouteris argues that the district court erred in applying a two-level enhancement for conduct that “resulted in substantial financial hardship” to Williams under
Skouteris‘s challenge to the substantial financial hardship enhancement has been a moving target. Before the district court, Skouteris conceded that Williams suffered a substantial financial loss yet maintained that it was inappropriate to apply the enhancement because Williams was “not included in the indictment.” Yet on appeal, Skouteris has abandoned that argument. Instead, he takes issue with whether the government can satisfy
As Skouteris did not make this particular argument before the district court, we review for plain error. United States v. Johnson, 627 F.3d 578, 585 (6th Cir. 2010). Skouteris does not
clear this high bar. Hymes, 19 F.4th at 932-33. That is so for numerous reasons. For one, Skouteris points to no binding case law suggesting that it is unforeseeable that a victim of fraudulent activity will undertake debt in reliance on the fraud. And a lack of binding case law that answers the question presented precludes a finding of plain error. United States v. Woodruff, 735 F.3d 445, 450 (6th Cir. 2013). For another, Skouteris misreads the record. True, as he emphasizes, Williams made a passing comment at trial about her decision to attend graduate school at Tulane. But nothing suggests that the district court applied the substantial financial hardship enhancement due to that comment. By all accounts, the government pursued the enhancement because Williams, injured in a horrific accident, suffered significant financial harm after Skouteris deprived her of her settlement, leaving her with “substantial medical bills” and “long-term” credit damage. This view of how Skouteris‘s offense “resulted” in a loss to Williams, it bears adding, aligns with examples offered by the Guidelines’ commentary. See
3. Skouteris also maintains that the district court should have departed from the applicable Guidelines range for diminished capacity under
4. Finally, Skouteris suggests that his sentence was substantively unreasonable.
calculated range by 16 months, was too long. See United States v. Nunley, 29 F.4th 824, 834 (6th Cir. 2022). Skouteris notes in passing that his conduct was not “egregious” in that at least some clients did “benefit” from his “labor.” But the district court thoughtfully considered the seriousness of Skouteris‘s offense and balanced those concerns against other relevant
D. Skouteris‘s final arguments take aim at the district court‘s restitution order. Under the Mandatory Victim Restitution Act, a district court must “order restitution” from a defendant convicted of certain offenses (including federal bank fraud) “if an identifiable victim has suffered a loss.” See Hills, 27 F.4th at 1201 (citing
Skouteris focuses on two restitution awards: one to Jacqueline Smith-Ehrat and another to Williams. With regard to Smith-Ehrat, he argues that the district court erred in ordering restitution of $1,700 to her when, he claims, “she received her settlement.” Skouteris waived that argument, however, by expressly proposing that exact amount below.
As to the Williams restitution order, Skouteris does not press the argument made in the district court—that the award should have been reduced to account for Skouteris‘s attorney‘s fees. Instead, he suggests (with little explanation) that Williams‘s actual loss was $56,000, not
the $77,882 ordered. With Skouteris making this argument in such “a perfunctory manner, unaccompanied by some effort at developed argumentation” the argument is forfeited, so we need not consider it any further. United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
Finally, Skouteris maintains that a lien still exists against Williams that would reduce the restitution amount. Even if that were the case, it would not mean that Skouteris owed any less money to Williams. Rather, the lienholder would have a right to any restitution Williams receives. See, e.g., Sereboff v. Mid Atl. Med. Servs., 547 U.S. 356, 368 (2006) (“A subrogation lien is not an express lien based on agreement, but instead is an equitable lien impressed on moneys on the ground that
III.
For the aforementioned reasons, we affirm the judgment of the district court.