United States v. Markert, No. 12-3332 (8th Cir. 2013)
Annotate this CaseDefendant was convicted of willful misrepresentation but acquitted of bank fraud. The court concluded that there was sufficient evidence to convict defendant. As the district court's instructions fairly and adequately presented the essential elements of the willful misapplication offense, the court concluded that there was no error in the manner in which that court incorporated its nominee loan bank fraud instruction into the willful misapplication offenses charged in the indictment. Accordingly, the court affirmed defendant's conviction. The court remanded, however, for resentencing where the district court did not attempt to determine what value to credit in the actual loss calculation.
Court Description: Criminal Case - conviction and sentencing. Evidence was sufficient to convict bank president of willfully misapplying bank funds. Defendant's claim that transactions were maladministration of bank's affairs, not criminal misapplication of funds is rejected. Funds were used to camouflage fraudulent transactions and bank suffered harm; it is not necessary that funds leave the bank. Willful misapplication instruction to jury was not error, as it required jury to find misapplication of funds with intent to defraud the bank. Evidence was sufficient to prove an intend to defraud and jury instruction did not need to require jury that actions subjected bank to increased risk of pecuniary loss. Nominee borrowers' ability to repay is not essential to question whether scheme resulted in willful misapplication of loan proceeds and jury instructions, as a whole were not error. The district court erred in determining the amount of loss, by determining the actual loss as opposed to the net loss. The case is remanded for resentencing. Judge Bright dissents on the sufficiency of the evidence to support the conviction.
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