Rancher Who Sold Cattle that were Security for Loans Convicted of Bank Fraud
United States v. Bowling, ___ F.3d ___ , 2010 WL 3547710 (10th Cir. 2010) (Ok). Cattle rancher loses his appeal on bank fraud convictions. He had taken out loans over the years to run his cattle operation, secured by cattle, equipment, and land, ran a line of credit and, with the bank’s knowledge, generally did not comply with agreements to give notice to the bank whenever he sold any cattle. Lo, one year he stopped paying back his loans and lo, an audit showed that all the cows were gone. Sold. (Not stolen or levitated and mutilated by aliens as he told the bank).
THE BIG issue in the case: the COA held that Defendant was not entitled to a separate good faith defense jury instruction, and that good faith is encompassed within the general specific intent instruction given for bank fraud; the COA had earlier overruled United States v. Hopkins 744 F. 2d 716 (10th Cir. 1984), which required the instruction when requested and when supported by evidence. Sufficient evidence to support elements of bank fraud, and although the bank may have waived its claim for a security interest under the UCC, that waiver did not provide a defense to any of the elements of the fraud statute. The government was not even required to prove the bank had a security interest in the cattle to show Defendant’s scheme to defraud (in spite of that fact being cited in the indictment). For much the same reason, it was not error to refuse an instruction on the UCC waiver theory–it was an incorrect statement of the law.
Denial of suppression motion upheld. Livestock board special ranger who under state law had the authority to enforce only stolen livestock laws and not bank fraud allegations, obtained a search warrant for D’s home. COA said, as it did in Defendant’s civil case of the same nature, that a state law violation does not always equate to a 4th Amendment violation. “The warrant was constitutional.” (No other explanation–it is in the civil case decision). That the judge issuing the warrant had been the attorney for a different bank involved in adversarial proceedings against Defendant 10 years earlier did not show bias.
THE BIG issue in the case: the COA held that Defendant was not entitled to a separate good faith defense jury instruction, and that good faith is encompassed within the general specific intent instruction given for bank fraud; the COA had earlier overruled United States v. Hopkins 744 F. 2d 716 (10th Cir. 1984), which required the instruction when requested and when supported by evidence. Sufficient evidence to support elements of bank fraud, and although the bank may have waived its claim for a security interest under the UCC, that waiver did not provide a defense to any of the elements of the fraud statute. The government was not even required to prove the bank had a security interest in the cattle to show Defendant’s scheme to defraud (in spite of that fact being cited in the indictment). For much the same reason, it was not error to refuse an instruction on the UCC waiver theory–it was an incorrect statement of the law.
Denial of suppression motion upheld. Livestock board special ranger who under state law had the authority to enforce only stolen livestock laws and not bank fraud allegations, obtained a search warrant for D’s home. COA said, as it did in Defendant’s civil case of the same nature, that a state law violation does not always equate to a 4th Amendment violation. “The warrant was constitutional.” (No other explanation–it is in the civil case decision). That the judge issuing the warrant had been the attorney for a different bank involved in adversarial proceedings against Defendant 10 years earlier did not show bias.
posted by Anonymous at 3:18 PM
<< Home