Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Rowe v. United States, 5th Cir. 1963, 324 F.2d 27; Huff v. United States, 5th Cir. 1962, 301 F.2d 760, cert. den. 371 U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230. In Harrison v. United States, 5th Cir. 1960, 279 F.2d 19, cert. den. 364 U.S. 864, 81 S.Ct. 105, 5 L.Ed.2d 86, this Court dealt with an indictment based on the first two paragraphs of 18 U.S.C.A. § 1005.
The Bank in arguing that the second clause of the statute is applicable contends that Sellner issued its "bills of exchange," the Bank's checks to Continental upon the second series of notes. Relying upon language in Harrison v. United States, 279 F.2d 19 (5th Cir.) cert. denied 364 U.S. 864 (1960) the bank argues that such an offense is criminal per se without the necessity of proof of an intent to injure or defraud it. In Harrison, the appellant, a druggist, was the mayor of the City of Warner Robins and a director of the Citizens State Bank in that city; he was indebted to the bank in the amount of $35,500 at a time when the rules of the bank, adopted by its board, prohibited any direct indebtedness by any of its directors in excess of $20,000.
The information is sufficiently detailed to convey the nature of the charge, see Torzala v. United States, 545 F.3d 517, 523-24 (7th Cir. 2008); Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 197-98 (2d Cir. 2002), and both the plea agreement and the government's offer of proof at the plea colloquy adequately detailed the nature of the charge against Multani, see United States v. Page, 520 F.3d 545, 547-48 (6th Cir. 2008); Frederick, 308 F.3d at 197-98; In re Sealed Case, 283 F.3d 349, 352-54 (D.C. Cir. 2002). In particular, if appellate counsel is correct in assuming that intent to defraud is an element of the crime defined by paragraph 2 of § 1005, the subsection under which Multani was charged, compare United States v. Harvard, 103 F.3d 412, 422 (5th Cir. 1997), and United States v. Pollack, 503 F.2d 87, 91 (9th Cir. 1974), with United States v. Malone, 837 F.2d 670, 672-73 (5th Cir. 1988), and Harrison v. United States, 279 F.2d 19, 23-24 (5th Cir. 1960), then both the plea agreement and the government's factual basis readily establish that Multani intended to defraud the bank when he persuaded its employee to issue the checks despite knowing he had insufficient funds to back them. Indeed, in the plea agreement Multani stipulated that he engaged in a long-running scheme to defraud that began with the events underlying the § 1005 offense.
The impropriety of this kind of evasion has long been well established in the case law. United States v. Kingston, 971 F.2d 481 (10th Cir. 1992) (defendant who paid sham-buyers to be title-holders in order to get access to HUD and VA loans induced false statements in violation of § 1001); Harrison v. United States, 279 F.2d 19 (5th Cir. 1960) (entries in bank's books indicating loan to city were false statements where mayor was true beneficiary of the loans); United States v. Swaim, 757 F.2d 1530 (5th Cir. 1985) (affirming conviction for scheme to conceal purchase price of building in order to acquire federal loan); Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956) (scheme to use veterans' names to obtain subsidized price for properties supported conviction under § 1001). Even if the instruction could have been more detailed with respect to the relevant indicia of ownership (an issue Kosth has not raised and thus has waived), the concepts of "sham" and "false front" did not require any further specification to state the law adequately for the jury's purposes.
Malone contends that the district court erroneously failed to instruct the jury that it must find that he acted with intent to deceive or defraud the bank or another individual. When we first considered Malone's appeal, we held that his argument was foreclosed by Harrison v. United States, 279 F.2d 19 (5th Cir. 1960). In Harrison, the trial court instructed the jury in a Section 1005 case that "a person intends the usual and probable consequences of his act."
This circuit has not decided whether specific intent is an implied element of section 1005, and the circuits are split on this issue. Compare Harrison v. United States, 279 F.2d 19, 23 (5th Cir.), cert. denied, 364 U.S. 864, 81 S.Ct. 105, 5 L.Ed.2d 86 (1960) (specific intent is not an element), with United States v. Pollack, 503 F.2d 87, 91 (9th Cir. 1974) (specific intent is an element). Fusaro's objection to the indictment affords us no opportunity to decide the section 1005 intent issue.
Although the statute on its face does not require proof of intent to complete the offense of unauthorized issuance, Tidwell argues that Congress intended such a requirement but was careless in revising the statute. In Harrison v. United States, 279 F.2d 19 (5th Cir. 1960), cert. denied, 364 U.S. 864, 81 S.Ct. 105, 5 L.Ed.2d 86, we held that "no specific intent to injure or defraud a bank is an ingredient in the offense charged in the first two paragraphs of Section 1005". Id. at 23.
Although the evidence leads to the conclusion that Mayr and Windham primarily intended to deceive the bank examiners, it is also adequate to support the jury's conclusion that they intended in some manner to injure and defraud the bank as a part of the same activity. See Harrison v. United States, 279 F.2d 19, 24 (5th Cir., 1960), cert. den., 364 U.S. 864, 81 S.Ct. 105, 5 L.Ed.2d 86; Baiocchi v. United States, 333 F.2d 32, 35 (5th Cir., 1964). See generally United States v. Corbett, 215 U.S. 233, 30 S.Ct. 81, 54 L.Ed. 173 (1909).
While we do not permit a jury charge which shifts the burden of proof to the defendant through the use of a presumption, this Circuit does approve an instruction permitting the jury to infer intent from the natural and probable consequences of a defendant's acts. United States v. Wilkinson, 5 Cir., 1972, 460 F.2d 725, 729-31; Estes v. United States, 5 Cir., 1964, 335 F.2d 609, 615-617, cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559, reh. denied, 380 U.S. 926, 85 S.Ct. 884, 13 L.Ed.2d 814 (1965); Mann v. United States, 5 Cir., 1963, 319 F.2d 404, 409; Harrison v. United States, 5 Cir., 1960, 279 F.2d 19, 24-25. To assure that the burden of proof remained with the Government, the District Judge gave the following instructions:
The evidence was sufficient to sustain the convictions under Count 2. See Garrett v. United States, 5 Cir., 1968, 396 F.2d 489, 491, on the elements of the substantive offense under 18 U.S.C.A. § 656 (misapplication of funds), and cf. United States v. Fortunato, 2 Cir., 1968, 402 F.2d 79. On the false entries statute, 18 U.S.C.A. § 1005, see United States v. Fortney, 3 Cir., 1968, 399 F.2d 406; United States v. Biggerstaff, 4 Cir., 1967, 383 F.2d 675; United States v. Kirkpatrick, 6 Cir., 1966, 361 F.2d 866; and cf. Harrison v. United States, 5 Cir., 1960, 279 F.2d 19, 24-25. Ashcom and O'Toole were also found guilty under Counts 3, 4, and 6 of making false entries.