STEVEN A. SCHWARTZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-5207 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A243-A250) is reported at 899 F.2d 243. JURISDICTION The judgment of the court of appeals was entered on March 21, 1990. A petition for rehearing was denied on April 19, 1990. Pet. App. C1. The petition for a writ of certiorari was filed on July 18, 1990. The jurisdiction of this Court is invoked under 18 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's instruction on an additional element that was unnecessary to petitioner's conviction constituted plain error. 2. Whether petitioner was properly convicted on separate counts of bank fraud for depositing two worthless checks. STATEMENT After a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioner was convicted on two counts of bank fraud, in violation of 18 U.S.C. 1344(a). /1/ Petitioner was sentenced to 18 months' imprisonment, a $10,000 fine, and five years' probation. He also was ordered to make restitution of $94,085.25 to the defrauded bank. The court of appeals affirmed petitioner's convictions and sentence but remanded for a redetermination of the amount of restitution. Pet. App. A243-A250. /2/ The evidence at trial, which is not in dispute, showed that petitioner's business experienced financial difficulties beginning in late 1986. On May 29 and June 3, 1987, petitioner deposited checks for $35,000 and $80,000, respectively, into his account at the Philadelphia National Bank, knowing that the checks were worthless. Utilizing the immediate credit he was granted by the bank, petitioner then drew a series of checks on the account. He lost most of the money gambling in Las Vegas and Atlantic City, and there was a deficiency in his account of almost $95,000 by June 10, 1987. Pet. App. A244-A245. The bank fraud statute, 18 U.S.C. 1344, proscribes (1) schemes to defraud federally insured banks and (2) schemes to obtain money from federally insured banks by means of false pretenses. /3/ The district court charged that, in order to convict petitioner, the jury had to find the existence of a scheme or artifice to defraud the bank; that petitioner participated in the scheme by false pretenses, representations, or promises; and that petitioner acted knowingly with specific intent to defraud. The court also instructed that there had to be fraudulent misrepresentations or omissions that were reasonably calculated to deceive persons of ordinary intelligence. Pet. App. A246. Petitioner did not object to those instructions. Id. at A249. On appeal, however, petitioner argued that the district court's charge collapsed the two prongs of Section 1344 into one offense. He further argued that the charge constituted error because, under Williams v. United States, 458 U.S. 279, 284 (1982), he could not be convicted for violating the second prong (relating to obtaining money by false pretenses) on account of the presentation of worthless checks. The court of appeals rejected that argument. It noted that the instructions required the jury to find that petitioner devised a scheme to defraud the bank and acted with specific intent to defraud, so that there was no question that it was properly instructed with respect to the first prong of Section 1344(a). The inclusion of instructions concerning false pretenses, the court held, just "unnecessarily enhanced the government's burden." Pet. App. A248. Judge Seitz concurred on this point. He was of the view that the instructions on false pretenses were erroneous. However, petitioner did not object to those instructions at trial, and Judge Seitz did not believe that the instructions amounted to plain error. Pet. App. A249-A250. The court of appeals unanimously rejected petitioner's argument that his deposit of two worthless checks should have resulted in his conviction on one count of bank fraud only. The court reasoned instead that each deposit constituted a separate violation of Section 1344(a)(1), because, in the court's view, "in making each deposit (petitioner) was executing his scheme to defraud (the bank)." Pet. App. A248. ARGUMENT 1. Petitioner renews his argument below (Pet. 10-17) that he was wrongly convicted of bank fraud under Section 1344. He contends that he was indicted and tried under a false pretenses theory but that the court of appeals affirmed under a different theory, namely, that he had engaged in a scheme to defraud. There is no merit to that factbound claim. In any event, review is not warranted since petitioner did not object to the jury instructions. The indictment charged petitioner with devising a scheme to defraud the bank and to obtain the bank's funds by means of false pretenses. C.A. App. 6a-7a. The court of appeals correctly concluded that while "the indictment charged that he obtained money by false pretenses, representations and promises, it is important to understand that the indictment was not dependent on that statement." Pet. App. A247. Similarly, while the jury instructions called for a finding that petitioner had obtained money by means of false pretenses, the instructions focused on his scheme to defraud the bank, requiring the jury to find that he had devised "a scheme or artifice to defraud a federally insured financial institution of money" and had "acted knowingly with specific intent to defraud." Id. at A246. The addition of instructions requiring the government also to prove that he had obtained funds by means of false pretenses put the government to a higher standard of proof than was required to convict, and petitioner therefore was not prejudiced. Killian v. United States, 368 U.S. 231, 258 (1961). In any event, petitioner did not object to the false pretenses instructions. He cannot accede to instructions and then, having received their benefit, try to assert that they created error. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239 (1940). Moreover, whether the instructions constituted plain error in the circumstances of this case (see Pet. App. A249) is not a question warranting further review by this Court. 2. Petitioner also argues (Pet. 17-24) that review is warranted to consider his contention that depositing the two checks that led to his convictions constituted a single scheme and therefore should have resulted in his conviction on one count of bank fraud rather than two. But as the court of appeals recognized (Pet. App. A248), the only other circuit to face this issue has held that each deposit constitutes a separate offense, just as each mailing represents a separate offense under the mail fraud statute. United States v. Mason, 902 F.2d 1434, 1437-1438 (9th Cir. 1990); United States v. Poliak, 823 F.2d 371, 372 (9th Cir.), cert. denied, 485 U.S. 1029 (1988). And since Section 1344 is modeled on the mail fraud statute (see Pet. App. A246), there is no reason to require a different result under Section 1344 than under Section 1341. CONCLUSION The petition for a writ of certiorari should be denied Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General LOUIS M. FISCHER Attorney SEPTEMBER 1990 /1/ Petitioner was acquitted on a third count. /2/ According to petitioner (Pet. 5), the district court has since recalculated the amount of restitution to be $63,936.16. /3/ At the time petitioner committed his offenses, Section 1344(a) provided: Whoever knowingly executes, or attempts to execute, a scheme or artifice -- (1) to defraud a federally chartered or insured 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 federally chartered or insured financial institution by means of false or fraudulent pretenses, representations, or promises, shall be (guilty of a crime). Section 1344 has since been amended by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. 101-73, 103 Stat. 500. However, Subsection (a) has not been modified in any pertinent manner.