JACK DOUGLAS JOHNSON, PETITIONER V. UNITED STATES OF AMERICA No. 89-6881 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals did not issue an opinion in this case (Pet. App. 1), but the judgment is noted at 893 F.2d 347. JURISDICTION The judgment of the court of appeals was entered on December 5, 1989. The petition for a writ of certiorari was filed on March 7, 1990 (it was mailed on March 5, 1990). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, consistent with the Double Jeopardy Clause, petitioner may receive consecutive sentences for violations of 18 U.S.C. 1344 (bank fraud) and 18 U.S.C. 656 (misapplication of bank funds) arising out of the same transaction. 2. Whether the district court abused its discretion in granting petitioner only a two-week continuance of his trial after the second superseding indictment was returned. STATEMENT After a jury trial in the Middle District of Florida, petitioner was convicted of conspiracy to submit false statements to and misapply the funds of a federally insured bank (Count 1), in violation of 18 U.S.C. 371, 1014 and 656; of aiding and abetting the making of false statements to a federally insured bank (Counts 2-11), in violation of 18 U.S.C. 1014 and 2; of aiding and abetting bank fraud (Counts 12-21), in violation of 18 U.S.C. 1344 and 2; and of aiding and abetting misapplication of the funds of a federal bank (Counts 22-35), in violation of 18 U.S.C. 656 and 2. Petitioner was sentenced to consecutive one-year terms of imprisonment for each of the 34 counts of conviction, for a total of 34 years' imprisonment. The court of appeals affirmed. 1. Petitioner was a promoter of a fraudulent gold mining corporation. From 1981 through 1986 he conspired with his co-defendant, Joe Justice, who was president of the Florida Center Bank of Orlando, to defraud the bank of the proceeds of approximately $2.5 million in loans. As part of the scheme, Justice received kickbacks for approving loans for the benefit of petitioner. Fourteen separate loan transactions were involved. The original indictment, returned April 14, 1988, charged separate offenses of aiding and abetting misapplication of bank funds in violation of 18 U.S.C. 656 (Counts 22-35) for each of the 14 loans. Documents submitted for each loan transaction were also each the basis for separate charges of aiding and abetting the making of false statements to a federally insured bank, in violation of 18 U.S.C. 1014 (Counts 2-11), or, for loan transactions that occurred after the effective date of the statute, aiding and abetting bank fraud, in violation of 18 U.S.C. 1344 (Counts 12-21). Gov't C.A. Brief 2-4. During early May, 1988, the defense was informed that the government intended to introduce, as "other acts" evidence under Fed. R. Evid. 404(b), evidence of fraudulent loan activity at two other banks to prove the conspiracy count, and at that time the defense was provided with information related to the transactions involved. Gov't C.A. Br. 6. Two superseding indictments, returned June 29 and July 20, 1988, expanded the conspiracy count by including the fraudulent transactions at the two other banks as additional overt acts, but did not change the number or content of the substantive charges. Trial on the second superseding indictment was initially scheduled for August 8, 1988. The district court granted the defense a continuance until August 22, 1988, but denied the defense request for an extended trial delay because of the second superseding indictment, finding that the indictment "merely added some overt acts." Id. at 4-5. 2. On appeal of his convictions, petitioner argued that the district court had violated the Speedy Trial Act in refusing to grant an extended continuance beyond the two-week continuance that was granted. Petitioner also argued that the Double Jeopardy Clause precludes punishment for both a violation of 18 U.S.C. 656 (misapplication of federal bank funds) and a violation of 18 U.S.C. 1344 (bank fraud) when both offenses are predicated on the same incident. The court of appeals affirmed the convictions and sentence without opinion. (Pet. App. 1.) ARGUMENT 1. Petitioner argues (Pet. 8-12) that the Double Jeopardy clause precludes separate punishments for violations of 18 U.S.C. 656 and 1344 based on the same transactions. The court of appeals was correct in rejecting petitioner's claim. Moreover, its decision, which appears to be the only appellate ruling on the issue, does not conflict with that of any other appellate court. With respect to punishment following conviction of multiple offenses at a single trial, the Double Jeopardy Clause protects a defendant from being punished more severely than Congress intended. See Grady v. Corbin, No. 89-474 (May 29, 1990, slip op. 7-8); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Albernaz v. United States, 450 U.S. 333, 337 (1981). To determine whether Congress intended two separate statutory offenses to authorize cumulative punishments when both offenses are committed during the same transaction, the Court applies the test established by Blockburger v. United States, 284 U.S. 299, 304 (1932): whether each offense requires proof of a fact that the other does not. See Grady v. Corbin, slip op. 8; Missouri v. Hunter, 459 U.S. at 366. The two statutory provisions involved in this case satisfy the Blockburger test. The offense defined by 18 U.S.C. 656 /1/ "embraces but a single generic offense, the offense of willfully taking the money of a bank by one of its employees, which offense may be committed in several alternative ways." United States v. Acosta, 748 F.2d 577, 579 (11th Cir. 1984) (emphasis in original). To prove a violation of 18 U.S.C. 656, the government must show that the defendant was connected with one of the listed federal banking institutions, or aided and abetted someone employed in that capacity, in the theft, embezzlement or misapplication of bank funds. Although the offense can no doubt be committed through fraud or misrepresentation, a bank employee may be found guilty of simply taking funds entrusted to him. See United States v. Whitlock, 663 F.2d 1094 (D.C. Cir. 1980); United States v. Davis, 592 F.2d 1325, 1329 n.4 (5th Cir.), cert. denied, 444 U.S. 871 (1979); see also United States v. Tingle, 658 F.2d 1332, 1337 (9th Cir. 1981) (conviction for violation of 18 U.S.C. 657). Alternatively, a higher bank official who makes wrongful use of the bank's funds with no deception or misrepresentation and an intent only to injure -- but not necessarily to deceive -- the bank may also be guilty of the offense. See United States v. Arthur, 602 F.2d 660, 662-663 (4th Cir.), cert. denied, 444 U.S. 992 (1979); United States v. Duncan, 598 F.2d 839 (4th Cir.), cert. denied, 444 U.S. 871 (1979); United States v. Riley, 550 F.2d 233 (5th Cir. 1977); United States v. Scheper, 520 F.2d 1355 (4th Cir. 1975). On the other hand, to prove bank fraud under 18 U.S.C. 1344, the government must prove that the defendant executed, or attempted to execute, a scheme to defraud the bank or to obtain its property by false pretenses. /2/ See, e.g., United States v. Bonnett, 877 F.2d 1450, 1453-1458 (10th Cir. 1989); United States v. Goldblatt, 813 F.2d 619, 621-625 (3d Cir. 1987). The government need not prove, however, that the defendant (or, if charged with aiding and abetting, his principal) was connected with a federal banking institution. Thus, each offense requires proof of a fact that the other does not, the Blockburger test is satisfied, and the district court had discretion to punish petitioner with consecutive sentences for each offense under these two provisions. 2. Petitioner claims (Pet. 13) that a provision of the Speedy Trial Act, 18 U.S.C. 3161(c)(2), requiring at least 30 days between indictment and trial mandated that the district court grant him a continuance of at least 30 days from the date he was arraigned on the second superseding indictment, August 2, 1988. /3/ This misreading of the Speedy Trial Act has been rejected by this Court. In United States v. Rojas-Contreras, 474 U.S. 231, 236 (1985), the Court held that 18 U.S.C. 3161(c)(2) "does not require that the 30-day trial preparation period be restarted upon the filing of a superseding indictment." A district court has discretion, of course, to grant a continuance in the interests of justice. Rojas-Contreras, 474 U.S. at 236. A defendant aggrieved by the denial of his request for a longer continuance has the burden of demonstrating that he was prejudiced by the denial. See, e.g., United States v. Watkins, 811 F.2d 1408, 1411 (11th Cir.), cert. denied, 482 U.S. 909 (1987); United States v. Guzman, 754 F.2d 482, 486 (2d Cir. 1985), cert. denied, 474 U.S. 1054 (1986). In this case, however, petitioner cannot show any prejudice, because the inclusion of additional overt acts in the indictment's conspiracy count, without any change in the number or content of the substantive counts, was an "insubstantial" change. See Watkins, 811 F.2d at 1411. Moreover, petitioner had more than adequate time to investigate the facts relating to the additional overt acts charged in the second superseding indictment; over three months elapsed between early May, when he received notice from the government that it intended to introduce evidence as to what became the additional overt acts, and the August 22 trial date. The trial court's determination, based on the particular facts of this case, that a two-week continuance was sufficient was entirely appropriate, and did not constitute an abuse of discretion. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General RICHARD A. FRIEDMAN Attorney JUNE 1990 /1/ 18 U.S.C. 656 provides in relevant part that the offense is committed by: Whoever, being an officer, director, agent or employee of, or connected in any capacity with any (federally insured bank) * * * embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank * * *. /2/ 18 U.S.C. 1344 provides that the offense is committed by: Whoever knowingly executes, or attempts to execute, a scheme or artifice -- (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises * * *. /3/ Although petitioner's question presented is phrased in terms of an alleged denial of his constitutional right to effective assistance of counsel, his argument is entirely directed to the statutory claim that the Speedy Trial Act required the district court to grant him more than a thirty-day continuance.