997 F.2d 1108 | 5th Cir. | 1993
Lead Opinion
Ronald Brechtel and Phillip Gattuso appeal their convictions of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006. Finding no reversible error in either Brechtel’s or Gattuso’s convictions, we affirm.
Background
Brechtel and Gattuso served as directors of Enterprise Federal Savings & Loan (EFS & L). Brechtel also served as secretary of the board and as a member of the loan committee. In addition to their involvement with EFS & L, Brechtel and Gattuso had interests in the Saulet and Ames Farm partnerships, two real estate development concerns owning land in Jefferson Parish, Louisiana. Gattuso’s cousin Roy Gattuso managed those partnerships.
In 1984 and 1985, Gattuso executed documents by which Saulet and Ames Farm granted options on parcels of land. Stavros Amitsis, holder of the Saulet option, had exhausted his credit line and could not secure financing at EFS & L to purchase this property. Nikitas Pepis and Lynn Yao — two Am-itsis associates — sought EFS & L loans with which to purchase the Saulet and Ames Farm parcels. Marilyn Ortalano, an EFS & L loan officer, informed the loan committee that if the loans were approved, Amitsis ultimately would receive the proceeds thereof. She also informed them that Robert Evans, EFS & L’s board chairman, wanted the Yao and Pepis loans approved to keep Amitsis afloat. Brechtel urged the loan committee to approve the transactions.
On December 18, 1984, the $420,000 Pepis loan received committee approval. At a January 11, 1985 closing, Saulet sold its parcels to G & N Enterprises, a company recently
In March 1985, the loan committee approved the $500,000 Yao transaction. The record contains no minutes reflecting approval of this loan by the full EFS & L board. On April 1, 1985, Yao took title to the Ames Farm parcel, giving in return cash and a note secured by the property. Brechtel and Gat-tuso attended .that closing and signed the act of sale. EFS & L received a second mortgage on the Ames Farm property.
By 1986, Pepis and Yao were experiencing difficulty meeting their obligations under the Saulet and Ames Farm notes. On April 22, 1986, to avoid a foreclosure EFS & L purchased the first mortgage on the Saulet parcels. On April 29, 1986, Gattuso and Bre-chtel were advised by letter from Roy Gattu-so of Yao’s delinquency on the Ames Farm note and that Yao would seek to refinance his debt to the partnership through EFS & L. Roy Gattuso also advised that if Yao failed to obtain supplemental financing through EFS & L, foreclosure proceedings would be initiated. On June 19,1986, the EFS & L board approved a $1.8 million loan permitting Yao to work out his financial problems. Brechtel, but not Gattuso, attended the June 19 meeting. Brechtel testified that he disclosed his and Gattuso’s interest in the Yao loan and abstained from voting on it. The minutes from the June 19 meeting and the testimony of two other board members belie Brechtel’s statement.
The grand jury indicted Brechtel and Gat-tuso on four counts of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006.
Analysis
On appeal, both defendants challenge the sufficiency of the evidence and contend that the district court improperly permitted testimony regarding their violation of civil banking regulations. Brechtel further challenges the district court’s refusal to: (1) dismiss counts of the indictment as multiplicitous, (2) permit his presentation of habit evidence, and (3) grant him a new trial. He also maintains that the statute of limitations barred his prosecution.
1. Multiplicity
Brechtel first faults the district court’s denial of his motion to dismiss portions of the indictment on multiplicity grounds. An indictment is multiplicitous if it charges a single offense in multiple counts,
Brechtel suggests that the two loans to Yao constituted individual steps in an overarching scheme to procure improper benefit from EFS & L through sale of the Ames Farm parcel. By charging the two Yao transactions as separate offenses, Brechtel argues that the government improperly splintered a single offense. He claims that in United States v. Lemons,
Lemons involved a bank-fraud prosecution under 18 U.S.C. § 1344. The indictment charged Lemons with separate violations of § 1344 for each of eight occasions on which he indirectly received or caused the bank to disburse funds. We noted that, although Lemons improperly received and caused disbursement of bank funds on several occasions, his acts constituted a single execution of a fraudulent scheme. We thus concluded, relying on the language of § 1344, that the indictment charged a single violation in multiple counts.
Because of the differences between 18 U.S.C. § 1006 and § 1344 Lemons is not dispositive of the case at bar. Rather than punishing “execut[ion] ... of a scheme or artifice to defraud,” 18 U.S.C. § 1006 punishes bank officials.who “reeeive[ ] ... any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of ... [the] institution.” This language suggests intent to punish receipt of improper benefit from individual transactions, rather than from overarching schemes. Brechtel violated § 1006 each time he benefited from an extension of credit to Yao. The district court properly rejected his contrary contention.
2. Limitations Period
Brechtel next asserts that the five-year limitations period of 18 U.S.C. § 3282 bars his prosecution.
Recent Supreme Court teachings reject the proposition that retroactive legislation violates the ex post facto clause merely because it adversely affects the position of criminal defendants.
3. Habit Evidence
At trial, Brechtel sought to present testimony by his stock broker James Man-gum. Through Mangum’s testimony, Brechtel sought to establish that, as a matter of habit, he took an entirely passive role in his real estate and stock investments, permitting advisors to act on his behalf without inquiry into the substance of the transactions they proposed.
Relying on our opinion in United States v. Riley,
Mangum’s proffered testimony did not involve Brechtel’s business relationship with real estate advisor Sam Gattuso. Further, it involved Brechtel’s standard operating procedure for stock transactions, which involve substantially less formality than the real estate transactions here at issue. Thus, Man-gum’s proffered testimony had at best tenuous relevance
1/.. Evidence of Regulatory Violations
Both Brechtel and Gattuso claim that the district court erred in permitting testimony by Ronald Hall, an examiner with the Office of Thrift Supervision. Over defense objection, Hall testified that regulations require directors to disclose any interest they may have in transactions under consideration by the bank and abstain from deliberations concerning such transactions, and prohibit loans in which bank officials have an interest unless made directly to the official in question.
In United States v. Christo,
The ease at bar differs substantially from Christo. Testimony regarding civil regulations constituted only a minor portion of Hall’s testimony. To the extent that he mentioned disclosure requirements, they permissibly assisted the jury in understanding the significance of EFS & L’s board minutes and management disclosures to thrift authorities. Hall’s statement concerning the prohibition on interested director transactions properly tended to demonstrate the defendants’ motive for nondisclosure.
5. ' Sufficiency of the Evidence
Both Brechtel and Gattuso challenge the sufficiency of the evidence supporting their convictions.
We have long recognized the § 1006 insider participation provision as a typical conflict of interests prohibition.
Well-settled law governs our sufficiency inquiry. We must view the evidence, giving due regard to the trier’s credibility calls, and draw all reasonable inferences which favor the verdict.
a. Brechtel
Special Agent David Lyons of the F.B.I. testified that Brechtel acknowledged an expectation that Yao would use proceeds of both EFS & L loans for purchase of the Ames Farm parcel. The jury properly could discredit Brechtel’s denial on the witness stand that he ever had such an understanding. Marilyn Ortalano’s testimony permitted a jury conclusion that Brechtel knowingly failed to disclose his interest in the initial Yao transaction and acted to procure its approval by the loan committee. Such evidence adequately supports Brechtel’s conviction on count two.
With regard to count four, Roy Gat-tuso’s April 29 letter and Breehtel’s claim that he abstained from voting on the Yao workout loan reflect Brechtel’s knowledge of his interest in that transaction on June 19, the date it obtained board approval. Discrediting Brechtel’s contrary testimony, the jury reasonably could have inferred from the absence of contrary mention in the June 19, 1986 board minutes that Brechtel failed to disclose his interest in the latter Yao transaction and participated in its consideration. Brechtel’s conviction on count four finds ample support in the record.
b. Gattuso
EFS & L minutes and Gattuso’s own testimony indicate his presence at the meeting during which the board ratified the initial Pepis loan. Gattuso’s insistence on the wit
Although a closer case than count one, we likewise believe that constitutionally sufficient evidence supports Gattuso’s conviction on the second count of the indictment. The key issue here is whether there was sufficient evidence of Gattuso’s intent to defraud EFS & L regarding the first of the two loans made by EFS & L to Yao on March 19, 1985. As discussed above, Yao paid over the proceeds from that loan to the partnership in which Gattuso and Brechtel possessed an interest.
At trial, the government’s theory regarding Gattuso’s guilt on the second count was that he attended the March 19, 1985 board meeting and even voted to approve the first Yao loan, while both knowing of his indirect pecuniary interest in the loan and without disclosing that interest to the board. We agree with the government that a section 1006 violation is clearly established when a member of a federally insured financial institution’s board fails to disclose a direct or indirect pecuniary interest in a loan being approved by the board.
Because there is little question that no disclosure occurred by Gattuso or Brechtel regarding the partnership’s interest in the first Yao loan, our chief inquiry is whether the evidence at trial, which was wholly circumstantial, would permit a rational jury to find beyond a reasonable doubt that Gattuso knew that EFS & L was making a loan to Yao. At the outset, we observe that three larger circumstances militate in favor of such a finding: first, a jury could rationally conclude that a sophisticated real estate broker such as Gattuso—who had been in the real estate business for over three decades— would not likely have been in the dark about important business transactions directly affecting a partnership in which he had a significant interest. This is particularly true in view of the substantial evidence that Gattuso himself, on behalf of the partnership, signed the documents closing the sale of the Ames property to Yao contemporaneously with the finalization of the first loan to Yao.
Third, we observe that the timing of Yao’s exercise of the option on the Ames property and Yao’s obtaining the loan, which occurred in early 1985, were roughly contemporaneous with Gattuso’s involvement in the Pepis loan scheme.
Yet such larger circumstantial factors, by themselves, would not permit a rational jury to find Gattuso’s guilt beyond a reasonable doubt. Thus, an examination of the government’s other evidence is in order. Of particular importance is Government Exhibit 20, a two-page document entitled “Executive Committee Meeting of March 7, 1985, Loans for Ratification,” which lists a dozen or so loans to be later ratified by the board of directors. Among them is a $500,000 line of credit to Lynn Yao. Although a notation on the document states, “SECURED BY VARIOUS PROPERTIES” — and thus makes no specific mention of the Ames Property — the closing of the sale of the Ames Property occurred less than two weeks later, on April 1, 1985. We believe that, assuming Gattuso saw this document, a rational jury could believe that Gattuso knew that the notation about Yao must have concerned a loan for the- sale of the Ames Property.
At issue, however, is whether that document was seen by Gattuso at the March 19, 1985 board meeting. Admittedly, the two pages of typed minutes from the meeting make no reference to the ratification of the executive committee’s loans (including Yao’s) on March 7,1985. Moreover, Gattuso denied knowing that Yao was seeking financing for the purchase of the Ames Property until after the loan was finalized. Two pieces of evidence belie his claim. First, it is clear that Gattuso attended the board meetings in early 1985, including the March 1985 meeting, and there is no indication that he made disclosure of his interest in the Yao loan or
We additionally observe that the $500,000 loan to Yao in the spring of 1985 was in the form of a line of credit. The promissory note and collateral mortgage note executed by Yao in favor of EFS & L were signed on April 1, 1985. According to the express terms of the collateral mortgage note, “Lender has this date agreed to make a loan ... to Borrower up to the amount of Five Hundred Thousand and No/100 ($500,000) DOLLARS. ...” Thus, Yao’s actual line of credit was formally opened on April 1,1985. Notably, the date that the Ames Property sale closed was also April 1,1985. It is undisputed that Phillip Gattuso attended the closing; indeed, his signature appears on the documentation memorializing the closing. Because Gattuso signed documentation at the closing, a jury could rationally infer that he knew that the sale of the property was being financed by EFS & L.
In sum, although admittedly a close case, we conclude that a rational jury could find beyond a reasonable doubt, in view of the totality of circumstantial evidence, that Gattuso, with the intent to defraud, knowingly “share[d] in or receive[d] directly or indirectly ... money ... through” EFS & L. 18 U.S.C. § 1006.
With respect to count four, we also believe that a rational jury could find beyond a reasonable doubt that Gattuso intended to defraud EFS & L in violation of 18 U.S.C. § 1006. Admittedly, there is no evidence that Gattuso was present at the June 19, 1986 board meeting where Yao's second loan was approved.
We hold that the government need not offer evidence that a board member such as Gattuso actually voted or otherwise engaged in affirmative conduct, in his capacity as a responsible bank official, to secure a loan in which he possessed a pecuniary interest. Rather, mere knowledge that such a loan is being obtained coupled with a failure to disclose his interest establishes a violation of 18 U.S.C. § 1006. A board member of a financial institution such as Gattuso is a classic fiduciary who owes the institution an affirmative duty to disclose all potentially substantial conflicts of interest. He cannot escape that duty simply by not attending the board meeting at which a transaction implicating those conflicts is approved while thereafter pocketing the proceeds.
6. New Trial Motion
In his final assignment of error, Brechtel essentially reiterates his previous points, asserting that at minimum they required the district court to grant his motion for new trial. The trial court’s superior vantage point on the weight and effect of evidence provides the basis for our review of its new trial rulings only for abuse of discretion.
Conclusion
For the foregoing reasons, the convictions are AFFIRMED.
. As applicable here, 18 U.S.C. § 1006 provides:
[wjhoever, being an officer, agent or employee of or connected in any capacity with ... any institution the accounts of which are insured by the Federal Savings and Loan Insurance CorporationL] ... with intent to defraud the United States or ... any corporation, institution, or association referred to in this section, participates or shares in or receives directly or indirectly any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of any such corporation, institution, or association, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.
The Crime Control Act of 1990, Pub.L. 101-647, § 2595(a)(4)(B), 104 Stat. 4907 (1990) substituted "institution, other than an insured bank (as defined in section 656), the accounts of which are insured by the Federal Deposit Insurance Corporation” for "institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation” in § 1006, reflecting absorption by the former agency of the latter. Congress also has amended the penalty provisions of § 1006 to provide for a maximum fine of $1,000,000 and a maximum prison term of 20 years. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, § 961(e), 103 Stat. 500 (1989).
. E.g., United States v. Lemons, 941 F.2d 309 (5th Cir.1991).
. E.g., id. (citing United States v. Swaim, 757 F.2d 1530 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985)).
. See Missouri v. Hunter, 459 U.S. 359, 365-69, 103 S.Ct. 673, 677-80, 74 L.Ed.2d 535 (1983) (where multiple punishments imposed in single prosecution, the double jeopardy inquiry is only whether legislature intended such multiple punishment).
. United States v. Heath, 970 F.2d 1397 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993); Lemons.
. See United States v. Vasquez-Rodriguez, 978 F.2d 867 (5th Cir.1992).
. 941 F.2d 309 (5th Cir.1991).
. Section 3282 provides "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the
. That clause, regulating the authority of Congress, provides "No Bill of Attainder or ex post facto Law shall be passed.”
. Congress expressly indicated that § 3293, adopted August 9, 1989, would apply to offenses committed before and for which the limitations period had not run as of its enactment. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, § 961(0(3), 103 Stat. 501 (1989).
. Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990).
. Id. at 41, 110 S.Ct. at 2718 (citing Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Pre-Youngblood jurisprudence suggested that statutes retroactively prejudicing "substantial rights” of criminal defendants also might violate the ex post facto clause. See, e.g., Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 964 n. 12, 67 L.Ed.2d 17 (1981). However, Youngblood makes clear that "substantial rights" language in earlier opinions does not expand the bases upon which a criminal defendant may premise an ex post facto challenge. Rather, only retroactive criminal statutes violating the principles set forth in Beazell and Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), implicate "substantial rights” for the purpose of ex post facto clause analysis. Youngblood, 497 U.S. at 46, 110 S.Ct. at 2721.
. Youngblood, 497 U.S. at 49-50, 110 S.Ct. at 2723.
. Our colleagues in other circuits have reached similar conclusions with regard to the retroactive application of § 3293. United States v. Taliaferro, 979 F.2d 1399 (10th Cir.1992); United States v. Knipp, 963 F.2d 839 (6th Cir.1992); United States v. Madia, 955 F.2d 538 (8th Cir.1992); see also United States ex rel. Massarella v. Elrod, 682 F.2d 688 (7th Cir.1982) (retroactive extension of unexpired limitations period does not violate ex post facto clause), cert. denied, 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983); United States v. Richardson, 512 F.2d 105 (3d Cir.1975) (same) (dictum); Clements v. United States, 266 F.2d 397 (9th Cir.) (same), cert. denied, 359 U.S. 985, 79 S.Ct. 943, 3 L.Ed.2d 934 (1959); Falter v. United States, 23 F.2d 420 (2d Cir.) (same) (L. Hand, J.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). Of course, the instant case requires no decision concerning the propriety of legislation reviving criminal liability after lapse of the previously applicable limitations period.
. Brechtel concedes that Mangum did not advise him with regard to real estate investment. Brechtel sought to present Mangum’s testimony as a substitute for that of real estate advisor Sam Gattuso, who died prior to trial.
. The district court, in the alternative, excluded Mangum's testimony as irrelevant because it related to stock rather than real estate transactions.
. 550 F.2d 233 (5th Cir.1977).
. See United States v. Qaoud, 777 F.2d 1105 (6th Cir.1985) (evidence regarding defendant judge’s "general pattern” of refusing assistance to influence peddlers irrelevant and properly excluded in RICO prosecution where not crucial to defense), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 899 (1986).
. E.g., United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir.1989).
. United States v. Allibhai, 939 F.2d 244 (5th Cir.1991) (citing United States v. Edelman, 873 F.2d 791 (5th Cir.1989)), cert. denied, — U.S. -, 112 S.Ct. 967, 117 L.Ed.2d 133 (1992). We note that Riley did not involve exclusion of defense evidence on this basis.
. Riley.
. Compare United States v. Kelly, 888 F.2d 732 (11th Cir.1989) (in prosecution of attorney for drug offenses involving client, error to exclude evidence—highly relevant to mental state—of defendant's understanding of his professional ethical obligations).
. Hall also testified that EFS & L board minutes and mandatory disclosures to banking authorities did not reveal the interests of Brechtel and Gattuso in the Pepis and Yao transactions.
. Jimenez Lopez.
. 614 F.2d 486 (5th Cir.1980).
. Id. at 492.
. See United States v. Cordell, 912 F.2d 769, 111 (5th Cir.1990) (evidence of civil regulation admissible to demonstrate bank's responsibility for allegedly misapplied funds); United States v. McElroy, 910 F.2d 1016, 1023-24 (2d Cir.1990) (evidence of regulations limiting lending for purchase of stock on margin admissible in criminal prosecution to explain basis for bank lending policies); United States v. Smith, 891 F.2d 703, 710 (9th Cir.1989) (evidence of civil regulation admissible to show motive for false statements), cert. denied, 498 U.S. 811, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990); United States v. Stefan, 784 F.2d 1093, 1098 (11th Cir.) (evidence of civil regulation admissible to demonstrate motive for and assist jury in understanding series of “straw man” transactions), cert. denied, 479 U.S. 855, 107 S.Ct. 193, 93 L.Ed.2d 125, 479 U.S. 1009, 107 S.Ct. 650, 93 L.Ed.2d 706 (1986).
. Cordell; McElroy; Smith; Stefan.
. We note that Brechtel and Gattuso admitted their interest in the Saulet and Ames Farm parcels and hence in the Pepis and Yao transactions, resting their defenses solely on absence of criminal intent. Thus, Hall’s testimony that Brechtel and Gattuso had interests in the Pepis and Yao transactions sufficient to trigger a duty of disclosure under civil regulations did not prejudice the defendants.
. Christo, 614 F.2d at 492.
. Brechtel purports to challenge the district court's denial of his motions for judgment of acquittal under Fed.R.Crim.P. 29(a) as well as raise a sufficiency claim. By presenting defense evidence, Brechtel waived any objection to the district court's denial of his Rule 29(a) motion at the close of the government’s case-in-chief. E.g., United States v. Elam, 678 F.2d 1234 (5th Cir.1982). Thus, Brechtel's challenge to the denial of his latter Rule 29(a) motion simply restates the sufficiency claim.
. United States v. Griffin, 579 F.2d 1104 (8th Cir.) (citing United States v. Hykel, 461 F.2d 721 (3d Cir.1972)), cert. denied, 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978). With respect to the "intent to defraud” element of section 1006, the defendants' jury was charged that:
To act with "intent to defraud” means to act knowingly with the specific intent to deceive or cheat for the purpose of causing some financial loss to another or to bring some financial gain to oneself. In this connection, the government does not need to prove that the United States,*1116 Enterprise Federal or anyone was actually defrauded. Similarly, the Government is not required to show whether or not Enterprise Federal suffered any loss as a result of the defendants' alleged actions. The term "to deceive or cheat” recognizes and includes the principle wherein one connected with a bank acts ostensibly solely for the interest of the bank while he, without complete disclosure, has a pecuniary interest which might subvert his undivided loyalty.
. United States v. Kehoe, 573 F.2d 335 (5th Cir.), vacated on other grounds, 579 F.2d 971 (5th Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Beaudine v. United States, 368 F.2d 417, 420 (5th Cir.1966), cert. denied, 397 U.S. 987, 90 S.Ct. 1116, 25 L.Ed.2d 395 (1970).
. See Beaudine, 368 F.2d at 420.
. Cf. United States v. Staller, 616 F.2d 1284 (5th Cir.) (government may prove "guilty knowledge” required for counterfeiting conviction by circumstantial evidence), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980).
. See United States v. Kimmel, 777 F.2d 290 (5th Cir.1985) (approving jury instruction permitting inference that defendant intended natural and probable consequences of knowing act), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986); Hykel (evidence that defendant failed to disclose and actively concealed interest in mortgage agreement supported finding of intent to defraud under § 1006).
. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
. E.g., Heath.
. Teresa Lomonaco, EFS & L's executive secretary, testified that board members from time to time left meetings, and that she would only record those absences in the minutes if requested to do so. Gattuso urges that this testimony precludes any inference from silence in the minutes regarding his participation in board consideration of the initial Pepis loan. We disagree. The jury was free to discredit Lomonaco’s testimony and, in any event, her statements at worst weaken the inference regarding Gattuso’s participation in the board meeting to which silence in the minutes gives rise. Notably, minutes from other meetings reflect non-participation by directors in consideration of loans due to conflict of interest. This argument fails to persuade.
. Gattuso insists that his signature on documents relating to the Saulet sale adequately disclosed his interest in the Pepis transaction, and negated any hypothesis of criminal intent. We are not persuaded. The record indicates that, when the full board of directors considered loans for ratification, it did not ordinarily have access to documentation underlying them. Absent disclosure by Gattuso, the board could have no knowledge of his interest in the Saulet transaction. Thus, Gattuso’s knowing failure to disclose his interest at the board meeting amply supports a finding of criminal intent.
. We see no need in the instant case to define the degree of indirect benefit required to make out a section 1006 violation since unquestionably the indirect benefit inuring to Gattuso from Yao’s payment of the loan proceeds to the partnership was clearly substantial enough.
. The closing of the sale, which was financed by the EFS & L loan, occurred on April 1, 1985. There is substantial evidence in the record that EFS Si L's executive committee—of which Bre-
. In early 1985, Yao exercised an option contract to purchase the Ames Farm property from the partnership.
. That inference would be strengthened by the fact that Roy Gattuso was Phillip Gattuso’s cousin, although mere consanguinity is not sufficient by itself to conclude that one relative necessarily informed the other relative of pertinent information. Cf. United States v. Thompson, No. 92-1037, unpub. op., p. 9, n. 14 (5th Cir. March 24, 1993) [990 F.2d 625 (Table)] ("In the instant case, the government asks that we infer from the loan of the car and allowing his brother access to his house that Kenneth Thompson knew that his brother planned to rob a bank. We decline the invitation.”).
. We previously held that there was sufficient evidence to support Gattuso’s conviction under section 1006 for that count of the indictment.
. Gattuso testified that he knew Yao was affiliated with Amitsis.
. It is common knowledge that participants at a real estate closing — in particular, the seller — typically would not be ignorant of the buyer's source of financing. A rational jury could thus disbelieve Gattuso’s claim that he was unaware of the source of Yao’s financing when Gattuso attended the April 1 closing.
. Among the government’s evidence at trial was an EFS & L cashier's check made out to Vezina and Associates — Roy Gattuso's law firm — in the amount of $96,000.00. The check, which was dated April 1, 1985, was part of the down payment for the sale of the Ames Property. In turn, the Vezina law firm made out separate checks to Brechtel (and his wife) and Estate of Sam Gattu-so (of which Phillip Gattuso was the executor) in the amount of $5,955.60 and $8,933.40, respectively. The back of the check to Vezina and Associates bears Neil Vezina’s stamped endorsement and is dated April 2, 1985. The back of the check to Gattuso is endorsed "Estate of Sam Gattuso" and is dated April 12, 1985.
. As we discussed supra, the government’s evidence offered at trial would permit a rational jury to find beyond a reasonable doubt that Brechtel was present at the board meeting where the second Yao loan was approved and voted for it without disclosing his interest. Although Bre-chtel testified that he did indeed disclose his and Gattuso’s interest in the second Yao loan at the June 19 board meeting, other evidence contradicts his bare assertion.
. When the Ames Property was sold on April 1, 1985, the partnership assumed a first mortgage on the property and EFS & L assumed a second mortgage on the property, which was inferior to the first mortgage.
. There is a document in the record that shows that apparently some official or officials in EFS & L knew that a portion of Yao’s second loan was going to Gattuso. However, that document is dated August 12, 1986 — well after the board approved the second loan.
. Although the jury instructions in the instant case and some section 1006 cases speak of an "act with the intent to defraud” by a defendant, see, e.g., Beaudine, 368 F.2d at 420, we do not believe that a defendant must literally engage in a specific action aimed at defrauding a federally-insured institution in order to violate section 1006. Rather, we believe that by intentionally failing to disclose a known conflict of interest, a fiduciary such as a board member "acts” to defraud by continuing on in his fiduciary capacity and, at the same time, failing to apprise responsible officials in his institution of the conflict.
. E.g., United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir.1991); United States v. Arroyo, 805 F.2d 589, 599 (5th Cir.1986).
Concurrence in Part
Concurring in Part and Dissenting in Part:
I agree with most of the majority opinion. There is sufficient evidence to support Bre-chtel’s convictions on counts two and four and Gattuso’s conviction on count one. I concur in the affirmance of the convictions on these counts. I find the evidence in support of Gattuso’s convictions on counts two and four to be woefully inadequate. I must dissent from the majority’s holding to the contrary.
It is not the function of an appellate court to fill in the gaps and voids in the evidence and to rule on the basis of evidence which could have or might have been offered. We are to review solely on the basis of what in fact was offered in evidence at trial.
In order to sustain a conviction the evidence need not eliminate all hypotheses of innocence. Our precedents, however, make equally clear that mere consistency with a theory of guilt will not suffice. Rather, where the evidence viewed most favorably to the government provides equal or near equal support to inferences of guilt and innocence,
The majority initially reasons that, in view of Government Exhibit 20 and Gattuso’s testimony regarding EFS & L loan approval practices, a rational jury could conclude that the full EFS & L board considered and approved the Yao transaction at its March 19, 1985 meeting. Government Exhibit 20 consists of two pages detailing approval of loans by the bank executive committee. Its first page indicates that the executive committee considered those transactions on March 7, 1985. At the top of its second page, which contains the reference to the initial Yao transaction, Government Exhibit 20 bears the notation “March 19,1985, Cont.” Further, during cross-examination, Gattuso testified to his belief that, in early 1985, loans generally required approval from both the full board and the executive committee.
The record is silent about the discrepancy in dates between the first and second pages of Exhibit 20 or the significance of the “March 19, Cont.” notation. At best, that exhibit permits an inference as to the date on which the executive committee approved the initial Yao transaction. It does not purport to indicate when or if the full board acted on the transactions detailed. Although Gattuso testified that transactions generally required approval by the full board as well as the executive committee, the government produced no evidence tying the initial Yao loan to any particular meeting. Documentary evidence suggests that the EFS & L board never considered this transaction: although copies of minutes filed in evidence reflect approval of executive committee actions on many occasions, the record is devoid of any evidence indicating approval of actions taken by the executive committee on March 7 or March 19. In any event, Gattuso’s testimony, corroborated by board minutes, indicates that with near uniformity, the board gave its assent to loans about two weeks after executive committee action.
Alternatively, the majority suggests that even if Gattuso did not vote to approve the initial Yao loan on March 19, the jury could have inferred his knowledge that EFS & L financed the Ames Farm purchase from his presence at the April 1 closing. The majority opines that if Gattuso learned of EFS & L’s interest in the loan on April 1, his failure to stop the transaction and inform the bank of his interest gives rise to an inference of intent to defraud under § 1006. I simply cannot accept this proposition.
Lynn Yao produced a cashier’s check — not a bank check — at closing. Further, Roy Gat-tuso — not Phillip Gattuso — managed the Ames Farm partnership. The government produced no evidence that Roy Gattuso ever informed Phillip Gattuso regarding Yao’s financing, or even that he generally provided such information to his cousin regarding real
As to Count 4, the majority reasons that receipt of Roy Gattuso’s April 29, 1986 letter placed Phillip Gattuso on notice of his interest in the latter Yao transaction. It then holds that, given such knowledge, the jury could infer intent to defraud from Gattuso’s failure to make disclosure, notwithstanding his absence from the meeting at which the board approved that loan and the absence of any evidence indicating his active pursuit of its approval. The April 29 letter, in relevant part, stated “Mr. Yao is seeking financial arrangements with Enterprise Federal for payment of the above captioned debt. If Enterprise fails to extend credit to Mr. Yao, I will commence foreclosure proceedings immediately.” Receipt of this letter does not establish Gattuso’s knowledge that Yao actually followed through on his expressed intention, or that his application met with sufficient lower-echelon approval at EFS & L to bring a proposed transaction before the board for approval. I am persuaded that a rational jury could not find, beyond a reasonable doubt, on the basis of the April 29 letter alone, that Gattuso knew the EFS & L board was considering the Yao workout loan. The jury perforce could not find, therefore, that Gattuso’s failure to disclose gave rise to an inference of criminal intent.
For these reasons, I concur in part and dissent in part.
. Clark v. Procunier, 755 F.2d 394 (5th Cir.1985).
. I note that Gattuso expressed reservation about that statement. The record reflects the following exchange:
Q. The board of directors had not stopped ratifying the actions of the executive committee at this time, had it?
A. To my knowledge, no, I guess. I don't have that information in front of me to know that.
Q. The loans which the executive committee approves, that still would go over to the board for approval; isn’t that right?
A. I would think so.
Trial Transcript, at 491 (emphasis added).
.Such a delay would place approval of the initial Yao loan at the April 1985 board meeting. The minutes of that meeting reflect that Gattuso was not in attendance.
. See United States v. Thompson, No. 92-1037, slip op. at 9 n. 14 (5th Cir. March 24, 1993) [990 F.2d 625 (Table) ] (mere fact that defendant lent car to his brother did not permit inference that he knew of criminal purpose for which car would be used).
. See United States v. Munna, 871 F.2d 515 (5th Cir.1989); Beaudine v. United States, 368 F.2d 417 (5th Cir.1966).
.I would not today determine whether failure by a responsible insider to disclose a known interest in a transaction under consideration could give rise to an inference of intent to defraud in the absence of affirmative acts to procure it.