Appeal from the United States District Court for the District of Columbia
Before: Wald, Sentelle and Henderson, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
In February 1995, a jury convicted Floyd Bruce of two criminal counts stemming from his participation in a scheme to defraud Signet Bank. The defendant now raises two challenges to his conviction, claiming first that the bank fraud count in the indictment was duplicitous, and second, that his attorney labored under an actual conflict of interest which rendered his trial fundamentally unfair. We reject both arguments. With respect to the defendant's first challenge, we find that Bruce's indictment correctly charged him with a single execution of a scheme to defraud the bank and therefore was not duplicitous. With respect to the second charge, we find no conflict of interest even though we agree with the defendant that his attorney in one instance exercised poor judgment and possibly violated the rules of professional conduct. Nevertheless, we do not believe either that the attorney's improper action constituted a "conflict of interest," or, even if it could be so construed, that it adversely affected his representation of Bruce. We therefore affirm the convictions.
The government charged Bruce with one count of bank fraud, in violation of 18 U.S.C. Section(s) 1344, alleging that he committed four separate fraudulent acts in furtherance of a single overall scheme to defraud Signet Bank. According to the indictment, Bruce carried out his scheme by way of four loan applications made over the course of a three-month period. Bruce made each application by telephone, through Signet's phone banking operation in Richmond, and scheduled the settlements at different Signet branch offices. The first three loans were scheduled to be settled in Maryland branch offices of the bank, but the fourth loan, which provides the act necessary to establish venue in the District of Columbia (D.C.) on the Section(s) 1344 count, was scheduled for settlement in D.C.
Testimony at trial established that Bruce, using false identification, took out a loan for $7500 in the name of George Brown. A discrepancy between the social security number on "Brown's" loan application and the number on the savings account card he filled out the day of the loan tipped off the bank manager that the loan might be fraudulent. Signet security officers launched an investigation that uncovered two other pending loan applications (also phoned into the telebanking center) which contained similar background information to the Brown loan. Because of the overwhelming similarities among the three applications, the bank concluded that they were fraudulent and that the same person or group might be responsible for all three of them.
Investigators set up a surveillance team at the Signet branch office on Reisterstown Road in Pikesville, Maryland, where one of the suspicious loans was scheduled for a September 1 settlement by a "Richard Lawson." But on that date, before showing up at the bank and presenting himself as Lawson, Bruce visited another Signet office in Pikesville and attempted to settle a loan there in the name of Michael Grand. The Grand loan had originally been scheduled for settlement on the following day, September 2. When the Signet employee processing the Grand loan on September 1 found a glitch in the application which required follow-up, Bruce became "antsy" and said he had an appointment at another bank. Shortly thereafter, Bruce was arrested at the original Pikesville branch for presenting false identification in the name of Richard Lawson and attempting to close the Lawson loan.
Following his arrest, investigators searched Bruce's car and found several forms of identification bearing his picture and the name Michael Grand, along with several other documents in the name of Floyd Bruce. Two months later, a similar suspicious loan application was made to the telebanking center in Richmond, by a man identifying himself as "David Greene." Greene, whom witnesses at trial identified as speaking with an accent similar to the defendant's, provided Signet with some of the same phone numbers and employment information that had been used in the earlier fraudulent loans. Bank officials again became suspicious and set up surveillance at the Signet office in D.C. where the Greene loan was scheduled for settlement. On November 18, Bruce stood outside the bank while an accomplice, Victor Dede, entered the bank posing as David Greene. After Dede attempted to close the loan, both he and Bruce were arrested. Investigators found on Dede several forms of ID with Dede's picture and Greene's name, as well as a handwritten note with the name David Greene and the numbers and information included in the Greene loan application. On Bruce's person, investigators found an ID with Bruce's photo and the name "Cosmos Phillips," a ticket stub in Phillips' name, and a business card with credit card numbers and expiration dates on the back.
Shortly after his arrest, Bruce confessed to Secret Service Agents that he had been involved with a group of people who made false identification cards and that he had been approached by a friend about setting up fraudulent loans with Signet Bank. According to Bruce's statement, the friend asked him specifically if he wanted to do the David Greene loan in D.C., but Bruce claimed that he had declined and had explained to the friend that his prior arrest in Maryland made him "too hot" to do the D.C. loan. Victor Dede, who was also present during this conversation, apparently offered to do the Greene loan, and Bruce agreed to help him out by "school[ing]" him on it and driving him to D.C. on the scheduled day. Appellee's Brief at 14.
Bruce was indicted on, and convicted of, one charge of knowingly executing and attempting to execute a scheme and artifice to defraud Signet Bank (Count One), and one count of possessing a forged security (Count Two).
A. The Duplicity Challenge
The first count, which Bruce challenges as duplicitous, alleges one "scheme" to defraud Signet, and embraces the four separate loan applications each as one "part" of that overall scheme. Arguing that each application constituted a separate "scheme" and therefore had to be charged in an individual count, Bruce moved to dismiss the indictment. The district court denied the motion, finding that Bruce's activities evidenced a single scheme to defraud, "because the same victim was involved, the same bank, because the same methods were used...." Record Material Relied Upon By Appellee ("R.M.") A24. *fn1
The bank fraud statute makes each "execution" of a fraudulent scheme punishable as a separate count. See United States v. Pless, 79 F.3d 1217, 1220 (D.C. Cir. 1996) ("[T]he unit of prosecution is not the scheme but the execution. If appellant did not execute the scheme, he would not be guilty."). It is settled law that acts in furtherance of the scheme cannot be charged as separate counts unless they constitute separate executions of the scheme, e.g., United States v. Lemons, 941 F.2d 309, 318 (5th Cir. 1991) (finding that the movement of one sum of money in several separate stages constituted only one "execution" and therefore could not support separate counts), and that acts which do constitute individual executions may be charged separately, e.g., United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987) (holding that Section(s) 1344 "unambiguously allows charging each execution of the scheme to defraud as a separate act") (emphasis added). What is less clear is whether the two situations are mutually exclusive; in other words, whether an act which can be viewed as an independent execution of a scheme must be charged in a separate count in order for the charge not to be duplicitous.
We think the sensible answer, and the one dictated by the most persuasive precedent, is that the two are not mutually exclusive; certain situations would justify indictment either in one count or in separate counts. Caselaw supports this conclusion. See, e.g., Pless, 79 F.3d at 1220 ("[I]t is not necessary for the government to charge every single act of execution of the scheme in order to prove the whole scheme."); United States v. Longfellow, 43 F.3d 318, 323 (7th Cir. 1994) ("While for each count of conviction there must be an execution, each execution need not give rise to a charge in the indictment." (internal quotations omitted)). The Seventh Circuit, in United States v. Hammen, 977 F.2d 379 (7th Cir. 1992), stated this proposition and explained the rationale justifying it:
[E]ach execution need not give rise to a charge in the indictment. The indictment in this case sets forth the existence of a scheme and alleges the scheme was executed on at least one occasion. The allegations tending to demonstrate the existence of the scheme do appear to be allegations that, if worded and structured differently, might constitute additional executions. This is hardly surprising; the actions that ...