The jury . . . found such an intent; the fact that the board of directors may have reviewed the loan at some point does not absolve the [defendants] from culpability. 654 F.2d at 328 (quoting United States v. Beran, 546 F.2d 1316, 1321 (8th Cir. 1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977)). Cauble argues in brief that this exception to the consent defense applies only when the case involves a "fraud" on the bank.

True to Britton, many decisions of this court and our sister circuits have observed that “the gist of the offense of willful misapplication is the conversion of funds of a federally insured bank by [a bank officer] either to his own use or to the use of a third person, with the intent to injure or defraud the bank,” without limiting the offense to any common law or statutory definition of “conversion.” Barket, 530 F.2d at 186–87;see Dow v. United States, 82 F. 904, 906 (8th Cir.1897) (“conversion in some form”); Johnson v. United States, 95 F.2d 813, 817 (4th Cir.1938) ( “conversion [of deposited loan proceeds] in some form”); United States v. Beran, 546 F.2d 1316, 1320 (8th Cir.1976) (“Conversion of bank funds ... is encompassed within the definition of criminal misapplication.”), cert. denied,430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977).

A district court has no jurisdiction to consider a new trial filed beyond the seven-day time limit contained in Rule 33, and it is powerless to order a new trial except on the motion of the defendant.Id. at 189 (emphasis added) (citing Fed.R.Crim.P. 33; United States v. Beran, 546 F.2d 1316, 1319 n. 1 (8th Cir. 1976)). Here, both the district court and the defendants point to United States v. Jimenez Recio, 258 F.3d 1069 (9th Cir. 2001), rev'd on other grounds, 537 U.S. 270, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003), and United States v. Taylor, 176 F.3d 331 (6th Cir. 1999), as support for the opposite view.

The prosecution relies on cases showing that the board of directors of a bank does not have the authority to condone such uncontrolled extensions of credit. See United States v. Beran, 546 F.2d 1316, 1321 (8th Cir. 1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977); United States v. Salinas, 654 F.2d 319, 328 n. 12 (5th Cir. 1981), overruled in part on other grounds, United States v. Adamson, 700 F.2d 953, 965 n. 18 (5th Cir.) (en banc), cert. denied, 464 U.S. 833, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). Cf. United States v. Gregory, 730 F.2d 692, 701-02 (11th Cir. 1984) (board consent is particularly suspect when the board was controlled by defendants), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985).

The Gregorys claim that because the participations, correspondent accounts, expense payments and loans were approved by the Board of Directors, there was no misapplication of bank funds under 18 U.S.C.A. § 656. While the valid consent of the Board of Directors is a defense to misapplication, the Board cannot validate a fraud on the bank. United States v. Salinas, 654 F.2d 319, 328 (5th Cir. 1981) overruled in part on other ground, United States v. Adamson, 700 F.2d 953 (5th Cir. Unit B 1983); United States v. Beran, 546 F.2d 1316, 1321 (8th Cir. 1976). Thus, if the coconspirators had an intent to defraud, "approval of the board of directors is no longer material to whether there was a misapplication of bank funds."

Also, our circuit has held that the time limits found in Rule 33-7 days for all grounds except that of newly discovered evidence and 2 years for the latter — are jurisdictional and the district court has no discretion to grant a new trial motion not timely filed. United States v. Lema, 909 F.2d 561, 565 (1st Cir. 1990); United States v. Fontanez, 628 F.2d 687, 691 (1st Cir. 1980), cert. denied, 450 U.S. 935, 101 S.Ct. 1401, 67 L.Ed.2d 371 (1981); See also United States v. Smith, 331 U.S. 469, 474-475, 67 S.Ct. 1330, 1333-34, 91 L.Ed. 1610 (1947); United States v. Coleman, 811 F.2d 804 (3rd Cir. 1987), cert. denied, 490 U.S. 1070, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989); United States v. Beran, 546 F.2d 1316, 1319 n. 1 (8th Cir. 1976) cert. denied, 430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977). Therefore, we must first resolve whether defendant could make a timely motion and, if so, whether, under the circumstances outlined above, the court would have any statutory authority to sua sponte order a new trial.

The second count accused Thomas of willful misapplication of bank funds, a crime that requires proof of intent to defraud or injure the Bank. See United States v. Beran, 546 F.2d 1316, 1321 (8th Cir. 1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977). Thomas argues there was insufficient evidence that he wrongfully took the Bank's money or intended to defraud the Bank because "[t]he Ashdown loan committee approved the lease loan and the loan was funded."

For a district court to have jurisdiction over a motion made under Rule 29 or Rule 33, the movant must comply with the seven-day period of the Rules. See, e.g., United States v. Gaydos, 108 F.3d 505, 512 (3d Cir. 1997); United States v. Calderon, 86 F.3d 200, 200 (11th Cir. 1996); United States v. Beran, 546 F.2d 1316, 1319 n. 1 (8th Cir. 1977). In Carlisle v. United States, 517 U.S. 416, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996), the Supreme Court strictly construed the time limits set forth in Rule 29(c) in affirming this court's judgment in United States v. Rupert, 48 F.3d 190 (6th Cir. 1995) (holding that a district court lacks jurisdiction over a post-trial motion for judgment of acquittal filed one day outside the Rule's seven-day period).

This evidence is more than sufficient to support Wade's conviction. Despite Wade's arguments to the contrary, the elements of the crime may be proved by circumstantial evidence. See United States v. Eubanks, 68 F.3d 272, 275 (8th Cir. 1995) (affirming conviction even though no one saw defendant take money); United States v. Beran, 546 F.2d 1316, 1321 (8th Cir. 1976) (holding that intent to defraud or injure bank may be inferred from facts and circumstances), cert. denied, 430 U.S. 916 (1977). Wade's conviction is affirmed.

Fed.R.Crim.P. 33 (emphasis added). See United States v. Beran, 546 F.2d 1316 (8th Cir. 1976), cert. denied, Beran v. United States, 430 U.S. 916 (1977). The Note of the Advisory Committee on Rules is particularly pertinent to the issue we are deciding: