Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.united States of America, Plaintiff/appellee, v. Adam R. Zak, Defendant/appellant, 46 F.3d 1134 (7th Cir. 1995)

ORDER

Adam R. Zak was convicted by a jury of two counts of making false statements to a federally insured bank in 1988, 18 U.S.C. § 1014, and sentenced to 15 months of imprisonment to be followed by one year of supervised release. He challenges his conviction on appeal, contending that the district court erred in admitting evidence of a 1989 bank fraud. After reviewing the district court's evidentiary ruling for an abuse of discretion, United States v. Wilson, 31 F.3d 510, 514 (7th Cir. 1994), we affirm Zak's conviction.

Zak argues that the district court erred in admitting evidence of his 1989 bank fraud because the evidence only tended to prove his propensity to commit the charged bank fraud. However, consistent with a diversion agreement Zak had entered into with the government precluding admission of the 1989 bank fraud evidence in subsequent proceedings except for impeachment purposes, the evidence was used to impeach Zak, not to prove guilt.¹  Under Federal Rule of Evidence 608(b) (1), specific instances of a witness's conduct, if probative of truthfulness or untruthfulness, may be inquired into on cross-examination of the witness in the discretion of the court. The district court admitted evidence of Zak's 1989 bank fraud only after Zak took the stand and testified that his failure to list a second mortgage in his personal financial history statement was a mistake and that a bank official had asked to see the government contract which he later forged.²  By electing to testify, Zak put his credibility in issue, and in rebuttal, the government could introduce evidence relevant to whether Zak was testifying truthfully. See, e.g., United States v. Wilson, 985 F.2d 348, 351-52 (7th Cir. 1993) (bribery, perjury and failure to file income tax returns are acts of dishonesty within the scope of cross-examination under rule 608(b)); United States v. Howard, 774 F.2d 838, 844-45 (7th Cir. 1985) (government could question defendant pursuant to Rule 608(b) as to whether he had lied on employment applications). Evidence of the 1989 bank fraud is probative of Zak's truthfulness because the similarity between the two bank frauds showed that Zak had a method of committing bank frauds and that his false statement to the defrauded bank in 1988 was not simply a mistake as he claimed. Zak, an aeronautical engineer, told both banks that he had a consulting contract with the United States Defense Department and was expecting to receive money from the contract. The two forged Defense Department contracts submitted to the defrauded banks are identical except for the contract amount.

Zak argues, however, that admission of the 1989 bank fraud evidence is inappropriate because the misconduct occurred one year after the charged offense.³  This court has held that Rule 608(b) requires only that the specific instances of misconduct occurred prior to the defendant taking the witness stand. See United States v. Chevalier, 1 F.3d 581, 583 (7th Cir. 1993) (holding that government could use evidence of defendant's bank fraud that occurred after the charged tax fraud to impeach the defendant under Rule 608(b) (1)). Thus, it is immaterial that the 1989 bank fraud occurred after the charged offense. Accordingly, we hold that the district court did not abuse its discretion in admitting evidence of Zak's 1989 bank fraud.

AFFIRMED.