United States v. Bankole , 39 F. App'x 839 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4314
JULIUS O. BANKOLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-00-403-A)
Argued: April 5, 2002
Decided: June 24, 2002
Before NIEMEYER and KING, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Stanley James Reed, LERCH, EARLY & BREWER,
CHARTERED, Bethesda, Maryland, for Appellant. Stephen P.
Learned, Assistant United States Attorney, Alexandria, Virginia, for
Appellee. ON BRIEF: Suzanne S. Nash, LERCH, EARLY &
BREWER, CHARTERED, Bethesda, Maryland, for Appellant. Paul
J. McNulty, United States Attorney, Alexandria, Virginia, for Appel-
lee.
2 UNITED STATES v. BANKOLE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Julius O. Bankole appeals his January 2001 conviction in the East-
ern District of Virginia on a charge of bank fraud. Bankole raises only
one issue on appeal: a claim of improper venue. Because the Eastern
District of Virginia was an appropriate venue for his prosecution, we
affirm.
I.
On November 8, 2000, Bankole was indicted on a single count of
bank fraud, in violation of 18 U.S.C. § 1344.1 He thereafter moved to
dismiss the indictment for improper venue, and the court denied his
motion without prejudice. His one-day jury trial took place in the
Eastern District of Virginia on January 24, 2001.
According to the evidence, Bankole owned a Maryland corpora-
tion, Safari, Inc. ("Safari"), which maintained an account at Chevy
Chase Bank, a Maryland-based financial institution (the "Chevy
Chase Account"). He was also authorized to transact business for a
company called Microworks, Nig. ("Microworks"), an entity operated
by his father. Microworks maintained both checking and savings
1
The bank fraud statute, 18 U.S.C. § 1344, provides that:
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, secur-
ities, or other property owned by, or under the custody or control
of, a financial institution, by means of false or fraudulent pre-
tenses, representations, or promises;
is guilty of an offense against the United States.
UNITED STATES v. BANKOLE 3
accounts at the United States Senate Federal Credit Union (the "USS-
FCU Checking Account" and the "USSFCU Savings Account"),
where members of Bankole’s family also did business. The USSFCU
operates branch offices in the District of Columbia and in Alexandria,
Virginia, and it operates "family service centers" in both Virginia and
Maryland.
By early January 2000, Chevy Chase Bank had closed the Chevy
Chase Account due to insufficient funds. Thereafter, on January 13,
2000, Bankole wrote a Safari check for $75,000, payable to his father,
on the closed Chevy Chase Account. He deposited the check into the
USSFCU Savings Account at a family service center in Rockville,
Maryland. Prior to this deposit, that account had a balance of only
five dollars.
Following its receipt of the $75,000 check, USSFCU placed a "No-
tice of Hold" on it, rendering the funds unavailable for a period of
five days. On January 18, 2000, when the hold was lifted, Bankole
transferred $40,000 from the USSFCU Savings Account into the
USSFCU Checking Account. On the following day, January 19, 2000,
he paid a New Hampshire vendor the sum of approximately $36,000
to consummate a purchase of computers by Microworks, utilizing a
Visa debit card drawn on the USSFCU Checking Account. This debit
transaction, initiated from Maryland, resulted in the transfer of funds
from the USSFCU Checking Account to the New Hampshire vendor,
via a debit signal received and processed by USSFCU in Alexandria,
Virginia.
On January 31, 2000, Chevy Chase Bank notified USSFCU that the
Chevy Chase Account, on which Bankole had written the $75,000
check, was closed at the time the check was drawn. The USSFCU
then referred the matter to the authorities, and Bankole thereafter
acknowledged to the FBI that, when he wrote the $75,000 check, he
knew that it was worthless and that the Chevy Chase Account had
been closed.
When USSFCU handled the Visa card transaction, its executive
offices were located in Alexandria, in the Eastern District of Virginia,
and the processing of its banking transactions occurred there. Indeed,
a USSFCU witness testified that the Visa debit signal was received
4 UNITED STATES v. BANKOLE
at the Alexandria offices, and that the loss to USSFCU, i.e., its pay-
ment of $36,000 in nonexistent funds to the New Hampshire vendor,
occurred at that point.
Because Bankole disputed the propriety of venue in the Eastern
District of Virginia, the district court concluded that a question of fact
existed on the issue. Without objection, the court submitted the venue
issue to the jury, to be determined by a preponderance of the evi-
dence. Bankole did not contest this procedure, but he objected to a
specific portion of the venue instruction, which provided that:
In determining the appropriate venue for bank fraud, you are
instructed that venue lies in the place where the results of
the fraud were felt. And the Government alleges that
occurred here on Eisenhower Avenue where the headquar-
ters of the bank is located.
J.A. 126-27. The jury returned a guilty verdict against Bankole, and
he was sentenced to sixty days of incarceration, four months of com-
munity confinement, and three years of supervised release. He has
filed a timely notice of appeal, and we possess jurisdiction pursuant
to 28 U.S.C. § 1291.
II.
While we normally review an issue of venue de novo, United
States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001), the submission
of a venue question to a jury is a proper procedure when the facts
underlying venue are disputed. Cf. United States v. Martinez, 901
F.2d 374, 376 (4th Cir. 1990) (observing that "proof of venue may be
so clear that failure to instruct [the jury] on the issue is not reversible
error"). In examining a guilty verdict, we view the evidence in the
light most favorable to the Government, and we must sustain the con-
viction if there is substantial evidence supporting the verdict. Glasser
v. United States, 315 U.S. 60, 80 (1942); United States v. Young, 248
F.3d 260, 273 (4th Cir. 2001).
We review for abuse of discretion a trial court’s choice of instruc-
tions and its determination of the content of a jury charge. United
UNITED STATES v. BANKOLE 5
States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). Instructions
are sufficient when, construed as a whole, they adequately state the
controlling legal principles without misleading or confusing the jury.
See Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1999).
III.
A.
Pursuant to the Constitution of the United States, a defendant must
be tried where the alleged crime was committed, i.e., in the appropri-
ate venue. U.S. Const. art. III, § 2; U.S. Const. amend. VI. While
Congress may provide for venue when it enacts a criminal statute, it
did not do so in connection with the bank fraud statute. Thus, the
selection of venue in a bank fraud prosecution is governed by the gen-
eral venue statute for federal criminal offenses, set forth in 18 U.S.C.
§ 3237. Section 3237, covering those offenses where Congress has
not expressly provided otherwise, states in pertinent part that:
[A]ny offense against the United States begun in one district
and completed in another, or committed in more than one
district, may be inquired of and prosecuted in any district in
which such offense was begun, continued, or completed.
18 U.S.C. § 3237(a).
Venue for a federal criminal prosecution is to be determined "from
the nature of the crime alleged and the location of the act or acts con-
stituting it."2 United States v. Anderson, 328 U.S. 699, 703 (1946). Of
2
The charging paragraph of the single-count indictment against
Bankole alleged that:
On or about January 18, 2000, in the Eastern District of Virginia,
defendant JULIUS O. BANKOLE did knowingly execute and
attempt to execute a scheme and artifice to defraud the USSFCU
and to obtain money and property, owned by and under the cus-
tody and control of the USSFCU, under false pretenses and rep-
resentations, in that the defendant, relying on the fact that the
USSFCU had not yet discovered that the $75,000 Safari check
6 UNITED STATES v. BANKOLE
course, there may be more than one appropriate venue for such a fed-
eral criminal charge, and a particular venue is not improper simply
because the defendant was never physically present there. United
States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001); United States v.
Blecker, 657 F.2d 629 (4th Cir. 1981).
In determining whether the bank fraud offense committed by
Bankole was "begun, continued or completed" in the Eastern District
of Virginia, we must assess whether some "essential conduct element"
of the offense occurred there. United States v. Villarini, 238 F.3d 530,
533 (4th Cir. 2001). And in order to determine the propriety of venue,
we must first identify the conduct constituting the offense and the
location of the criminal acts. United States v. Barnette, 211 F.3d 803,
813 (4th Cir. 2000).
The bank fraud statute, 18 U.S.C. § 1344, proscribes the execution
of a scheme to defraud a financial institution, and a fraud scheme
completed in the Commonwealth of Virginia will give rise to venue
in Virginia. See In re Palliser v. United States, 136 U.S. 257, 267-68
(1890) (finding letter designed to induce fraud mailed from New York
to Connecticut gave rise to venue in Connecticut). The mere fact that,
as in this case, the communication was transmitted to Virginia by the
New Hampshire vendor will not defeat venue. See United States v.
Murphy, 117 F.3d 137, 140 (4th Cir. 1997).
Thus, while Bankole’s contacts with the New Hampshire vendor
were from Maryland, venue is proper in the Eastern District of Vir-
ginia if the USSFCU, from which the New Hampshire vendor
obtained nonexistent funds, completed the debit transaction in that
district. And the uncontradicted evidence is that USSFCU operates its
accounting processing in Alexandria, Virginia, and that the debit
transaction was completed there. This evidence plainly preponderates
in favor of the verdict, and it supports a finding that the bank fraud
was worthless, caused a purchase by a VISA debit card, linked
to his father’s USSFCU account, to be charged to his father’s
account, causing a loss to USSFCU of $35,991, the amount of
the VISA debit card purchase.
(emphasis added).
UNITED STATES v. BANKOLE 7
offense was begun in Maryland, continued into New Hampshire, and
was completed in the Eastern District of Virginia.3 See 18 U.S.C.
§ 3237(a); Wilson, 262 F.3d at 320.
B.
At trial, Bankole objected to the venue instruction, contending that
it misstated the law. On appellate review, an erroneous jury instruc-
tion will mandate reversal only if, based on an analysis of the record
as a whole, the error was prejudicial. United States v. Hastings, 134
F.3d 235, 241 (4th Cir. 1998) ("When, over a proper objection, a dis-
trict court erroneously instructs the jury on an element of the offense,
the error may be disregarded as harmless if a reviewing court can
determine, beyond a reasonable doubt, that a correctly instructed jury
would have reached the same conclusion."); Wellington v. Daniels,
717 F.2d 932, 938 (4th Cir. 1983).
Bankole maintains that the district court, in instructing the jury that
venue was appropriate "where the results of the fraud are felt," inap-
propriately relied on our unpublished decision in United States v.
Riselli, 7 F.3d 228, text in Westlaw at 1993 WL 366364 (4th Cir.).4
However, viewed in the proper context, the venue instruction was not
incorrect.5 And, in this circumstance, the completion of the bank fraud
3
Bankole further maintains that, because the indictment alleged that he
attempted to commit bank fraud, it was improper to convict him for the
execution of the fraud in Virginia. Because the indictment charged in the
conjunctive, alleging that Bankole "did knowingly execute and attempt
to execute" the fraud, we would have to disregard the plain provisions
of § 3237 for Bankole to prevail on this contention. It is clearly frivolous.
4
Our Local Rule 36(c) disfavors reliance on unpublished opinions, and
such opinions are not precedential. See Hogan v. Carter, 85 F.3d 1113,
1118 (4th Cir. 1996) (en banc).
5
The balance of the venue instruction, to which no objection was
made, provided in pertinent part that:
Proper venue of a criminal trial requires the Government to
charge a defendant only in the district or districts where the
crime occurred. Therefore, in order to convict the defendant of
the crime charged in the indictment, you must be satisfied that
8 UNITED STATES v. BANKOLE
offense, i.e., the account processing in Virginia, occurred in the same
venue where USSFCU suffered its loss and the results of the fraud
were felt. Any error, therefore, could not have been prejudicial to
Bankole.
IV.
For the foregoing reasons, venue was proper for the prosecution of
Bankole in the Eastern District of Virginia, and we affirm his convic-
tion.
AFFIRMED
the crime alleged occurred in the Eastern District of Virginia or
at least a part of the crime occurred here.
....
You are also instructed that the Government need not proof
[sic] that the entire offense took place here in the Eastern District
of Virginia. Any offense against the United States begun in one
district and completed in another or committed in more than one
district may be prosecuted in any district in which the offense
was begun and continued.