Wednesday, January 22nd, 2014

Bank Fraud Conviction Affirmed

United States v. Hoke, No. 13-615-cr (2d Cir. Jan. 14, 2014) (Jacobs, Lohier, and Droney) (summary order), available here

Hoke deposited into her own bank account a Social Security check made out to a third party. For that conduct, a jury convicted her of bank fraud and of passing a forged Treasury check. This summary order affirms her convictions.

The Court first held that the evidence was sufficient to establish Hoke’s intent to defraud under both counts. The beneficiary of the check testified that she never received the check or endorsed it. Though handwriting analysis concluded that the false signature and endorsement to Hoke was not done in Hoke’s hand, the evidence allowed a rational jury to find that Hoke knew that the check was forged. In particular, Hoke gave conflicting accounts of how she came to deposit the check, and she appeared nervous when depositing it.

The Court next held, applying plain error review only, that the evidence was sufficient to prove Hoke’s intent to victimize the bank. The Court distinguished United States v. Nkansah, 699 F.3d 743 (2d Cir. 2012), on the ground that in that case there was no evidence of the Treasury dishonoring the checks or seeking reimbursement from any of the banks, whereas in Hoke’s case the Treasury Department did seek reimbursement. Though Nkansah concededly provided some support for Hoke’s argument, any error was not sufficiently “plain” to warrant reversal.

The Court also rejected Hoke’s challenge to an aiding and abetting jury charge. First, any error was harmless because a rational jury would have found the defendant guilty as a principal. Second, the jury instruction did not constructively amend the indictment.

Finally, the district court did not abuse its discretion by permitting a read-back of certain trial testimony to the jury.

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