1 Senior District Judge of the Western District of Louisiana,

sitting by designation.

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 91-1112

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SIMON EDWARD HEATH and PAUL SAU-KI CHENG,

Defendants-Appellants.

______________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

______________________________________________________

(August 20, 1992)

Before HIGGINBOTHAM and DUHÉ, Circuit Judges and HUNTER,

District Judge.1

DUHÉ, Circuit Judge:

Defendants-Appellants Simon Heath and Paul Cheng were

convicted of numerous counts of bank fraud, wire fraud,

misapplication of funds, false entries, and interstate

transportation of funds obtained by fraud. They seek reversal of

their convictions. Because we find two counts of the indictment

multiplicitous, we remand in part. The remaining convictions are

affirmed.

BACKGROUND

Cheng and Heath were founding partners of Pacific Realty

Corporation (PRC), a large national real estate development
2

company. In 1984, PRC and Cheng and Heath, individually,

acquired Guaranty Federal Savings & Loan, a Dallas savings and

loan then in receivership. The purchase agreement contained a

forbearance clause exempting Guaranty from banking regulations

that prohibit loans to insiders. Thus, Guaranty was authorized

to loan money to PRC and its clients. 

Soon after acquiring Guaranty, PRC bought forty-two acres of

land in Florida for development. Problems occurred, however,

when the local government imposed a sewer moratorium. At the

same time, the company with which PRC had planned to develop the

land withdrew from the deal. Cheng and Heath then tried to sell

the land, but were unsuccessful.

In December 1985, Cheng and Heath made a deal with Don

Farris, of the Don Companies, an Arizona real estate development

company. Farris, a major borrower at Guaranty, was to buy almost

thirty acres of the Florida property for $10 million with money

loaned to him by Guaranty. The loan would be non-recourse and

collateralized solely by the Florida property. Farris would then

establish a $2 million reserve account to pay interest on the

loan, funded with proceeds from the sale to PRC of property he

owned in Arizona. PRC agreed to buy the Arizona property with

$3.3 million loaned to it by Guaranty and secured solely by the

property.

The $10 million loan from Guaranty to Farris required a

loan-to-property value ratio of ninety percent. For the deal to

be successful, therefore, the Florida property had to be
3

appraised at $11 million, more than twice the value quoted to

Cheng and Heath during their earlier unsuccessful attempts to

sell the property. In an effort to obtain such a favorable

appraisal, Heath, in the presence of Cheng and another PRC

employee, directed Ben Romero, an officer of PRC, to secure an

appraisal on an "as built basis" by informing the appraisers that

twin highrise apartment towers would be built on the land. At

the time, Cheng and Heath had no intention of actually building

the highrises. Based on this misrepresentation, Romero obtained

a preliminary opinion letter from Marshall & Stevens, a Chicago

appraisal firm, appraising the full 42.40 acres at $11.2 million. 

Marshall & Stevens was not aware that its preliminary letter was

going to be used to close the Guaranty/Farris loans, and the

letter was technically deficient for such purposes. Using this

letter, however, PRC and Farris closed the deal on January 17,

1986. On January 18, at Cheng and Heath's request, Marshall &

Stevens sent PRC a corrected back dated letter, addressed to

Guaranty and appraising only the thirty acres of property sold to

Farris.

Although it corrected its original letter, Marshall &

Stevens did not immediately provide Guaranty with the necessary

full narrative appraisal because it was unable to verify its

initial $11.2 million estimate. In light of the zoning laws and

sewer moratorium, one Marshall & Stevens's appraiser suggested

that the Florida property was worth less than half of the $11.2

million evaluation. In the meantime, in March 1986, the Federal
4

Home Loan Bank (FHLB) discovered that the loan had been made

without the required full narrative appraisal. 

To provide Marshall & Stevens with a factual basis for the

$11.2 million figure, Romero made to them specific false

representations about the development potential of the Florida

property, including assurances that sewer and treatment

facilities were available, that the density of the purported twin

towers was permissible under current zoning, and that it was

physically possible to build the highrises on the land. Based on

these misrepresentations, Marshall & Stevens completed the full

narrative appraisal for $11.2 million. 

For their participation in the scheme, the Government

brought a seventeen count indictment against Cheng and Heath. 

Count one alleged conspiracy, counts two and three alleged bank

fraud based on the loans for $10 million and $3 million procured

from Guaranty. Counts four through seven alleged wire fraud,

misapplication of funds, and false entries. The final ten counts

were for interstate transportation of funds obtained by fraud,

based on Cheng and Heath's use of funds obtained through the

Florida deal to purchase stock from a New York broker. 

ANALYSIS

Together, the Defendants attack their convictions on many

grounds. Initially, they charge that the indictment was

multiplicitous with regard to the two bank fraud charges stemming

from a single transaction. Next they attack the sufficiency of

the evidence on all counts, asserting that the evidence did not
5

support the finding of fraud necessary to each count. They also

claim that their convictions for interstate transportation of

fraudulently obtained funds fail because the Government did not

prove that each individual transfer involved proceeds of a

fraudulent transaction. Finally, they cite numerous trial

errors, including prosecutorial misconduct, mistakes in the

district court's evidentiary rulings, and flaws in the district

court's instructions to the jury. 

I. Indictment Multiplicity

"'Multiplicity' is charging a single offense in more than

one count of an indictment." United States v. Lemons, 941 F.2d

309, 317 (5th Cir. 1991). The Defendants argue that Counts 2 and

3 of their indictments, which charged them with bank fraud under

18 U.S.C. § 1344, are multiplicitous in that each of the counts

seeks to punish them for participation in the same scheme against

Guaranty. The Government counters that each transaction, the

$3.3 million Phoenix loan and the $10 million Florida loan, must

be viewed as subjecting Guaranty to separate risks of loss,

giving rise to multiple liability under the statute. 

In Lemons, we stated that "the bank fraud statute imposes

punishment only for each execution of the scheme." Id. at 318. 

Thus, unlike the mail or wire fraud statues, the bank fraud

statute does not allow punishment for each act in execution of a

scheme or artifice to defraud. Id. Although we so interpreted

the bank fraud statute, we expressly declined to hold that "the

execution of a scheme cannot result in the imposition of multiple
6

liability . . . . Id. n.6. Our note specifically referred to

United States v. Farmigoni, 934 F.2d 63 (5th Cir. 1991), cert.

denied, 112 S. Ct. 1160 (1992). Farmigoni, in contrast to this

case and Lemons, involved a scheme to defraud two different

banks, giving rise to prosecution in each of the banks' home

states. Although both indictments in Farmigoni arose from the

same scheme, "neither require[d] proof of intent to defraud the

other unnamed financial institution." Id. at 66. The instant

scheme involves intent to defraud only one bank, Guaranty, albeit

by procuring two loans. The two loans, however, were integrally

related; one could not have succeeded without the other. Indeed,

the sale of the Phoenix property was conceived for the sole

purpose of facilitating the Florida sale.

Although a two-loan scheme may subject an institution to

greater risk than a scheme involving only one transaction, it is

the execution of the scheme itself that subjects a defendant to

criminal liability, not, as we stated in Lemmons, the execution

of each step or transaction in furtherance of the scheme. 

Because the Defendants' indictments sought to punish them for

execution of the multiple steps involved in the scheme, the

counts are multiplicitous. Therefore, we remand the case with

the instruction to the Government to choose the count it wishes

to leave in effect. The district court then should vacate the

convictions on the remaining count and resentence Heath and

Cheng. See United States v. Saks, 964 F.2d 1514, 1526 (5th Cir.

1992); United States v. Moody, 923 F.2d 341, 347-48 (5th Cir.),
7

cert. denied, 112 S. Ct. 80 (1991). 

II. Sufficiency of the Evidence 

Convictions must be affirmed if the evidence, viewed in the

light most favorable to the verdict, with all reasonable

inferences and credibility choices made in support of it, is such

that any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); United States v. Kim, 884

F.2d 189, 192 (5th Cir. 1989). In making this determination, we

need not exclude every reasonable hypothesis of innocence. 

United States v. Henry, 849 F.2d 1534, 1536 (5th Cir. 1988). 

Juries are free to use their common sense and apply common

knowledge, observation, and experience gained in the ordinary

affairs of life when giving effect to the inferences that may

reasonably be drawn from the evidence. United States v. CruzValdez, 773 F.2d 1541, 1546-47 (11th Cir. 1985) (en banc), cert.

denied, 475 U.S. 1049 (1986). 

A. Fraud

Each of the fraud-based charges relies on the twin highrise

apartment tower statement used in the Marshall & Stevens

appraisal. The Defendants contend that the statement was not a

material misrepresentation and, therefore, could not support

their convictions. They suggest that representations that should

have no effect on the party to whom they are made, no matter how

intentional, cannot be material. In other words, because

Marshall & Stevens had a professional duty to independently
8

investigate the highest and best use of the Florida land, the

owners' plans for development could not influence the appraisal,

and, therefore, are immaterial to the appraisal.

 The Government responds that despite the appraisers' ethical

duty, the twin tower statement was made with the intent to

influence the appraisal and did, in fact, do just that. Implicit

in the highrise description, the Government argues, is a

representation of density per acre. This particular physical

plan, the Government explains, was the only one that could

sustain the density supporting the valuation, as well as zoning

requirements, such as parking and green spaces. 

A statement is material if it "has a natural tendency to

influence, or was capable of influencing the decision of" the

lending institution. Kungys v. United States, 485 U.S. 759, 770

(1988); Theron v. United States Marshal, 832 F.2d 492, 496-97

(9th Cir. 1987), cert. denied, 486 U.S. 1059 (1988). The

highrise misrepresentation was necessary to the $11.2 million

appraisal which, in turn, was necessary to PRC's procuring the

loan from Guaranty. We conclude, therefore, that the statement

was material to Guaranty's decision. Proof that Romero made the

misrepresentations at Heath and Cheng's bequest, therefore, was

sufficient to support their fraud-based convictions.

B. Individual Transfers

The Defendants argue that their convictions for interstate

transportation of funds obtained by fraud should be reversed

because the Government failed to prove beyond a reasonable doubt
9

that any individual transfer involved the proceeds of the illegal

deal. The proceeds of the fraudulent transaction were commingled

with over $700,000 of untainted money. Because none of the

transfers named in the indictment exceeded $700,000, the

Defendants contend, none necessarily involved funds obtained by

fraud. In the aggregate, the transfers listed in the indictment

well exceeded $700,000. 

In United States v. Poole, 557 F.2d 531 (5th Cir. 1977), we

reversed a defendant's conviction for interstate transportation

of funds obtained by fraud because his account contained enough

untainted funds to pay the check in question without using the

funds obtained fraudulently. Id. at 535-36. We noted

specifically, however, that we were not confronted with the issue

present here, that is, the situation in which there are

insufficient untainted funds to cover all the checks in question. 

Id. at 536 n.8.

 In United States v. Levy, 579 F.2d 1332 (5th Cir. 1978),

cert. denied, 440 U.S. 920 (1979), we addressed that question,

affirming the defendant's conviction although he had mingled

legitimately obtained funds with those obtained by fraud. Levy

differs from the instant case, however, in that each check

written exceeded the amount of clean funds. Id. at 1334, 1337.

 The Defendants, focussing on each transfer in isolation,

insist that Poole, not Levy, applies because there were clean

funds sufficient to cover each transfer. To view each

transaction in isolation, however, would defeat the purposes of
10

the statute, allowing sophisticated criminals "to spirit stolen

funds from one state to another," Levy, 579 F.2d at 1337, so long

as each check written did not exceed the amount of legitimate

funds on hand in the bank account. "[A] criminal statute should

be fairly construed in accordance with the legislative purpose

behind its enactment." Levy, 579 F.2d at 1337 (citing United

States v. Turley, 352 U.S. 407 (1957)). We thus decline to

extend Poole to the case at hand.

The Government established that Heath and Cheng deposited 

$6,053,204.93 of loan proceeds into an account containing

$454,518.49 of untainted funds. In that account, the Defendants

placed an additional $332,162.50 of clean funds, and the bank

contributed interest totalling $12,600.56. Thus, the Government

proved that between January 21, 1986 and February 25, 1986, the

account held $6,053,204.93 tainted funds and $799,281.55 clean

funds (counting all of the interest paid as clean). By February

4, the date of the first transfer cited in the indictment, the

Defendants had reduced the account balance to $3,988,519. From

this amount, they transferred a total of $2,155,508 to a New York

broker. Even assuming that none of the clean funds were removed

before February 4, it is obvious that the $799,281.55 could not

have covered all of the transfers to New York. At least

$1,356,126.45 in tainted funds was transferred to New York. It

defies logic to require that the Government trace these tainted

funds through each transfer. Such proof is impossible because

money is fungible. United States v. Banco Cafetero Panama, 797
11

F.2d 1154, 1158 (2d Cir. 1986). The impossibility of such proof,

however, does not render the convictions invalid. We are

satisfied that, having proved beyond a reasonable doubt that the

aggregate taken from the account exceeded the amount of clean

funds available, the Government met its burden. 

Moreover, we are unpersuaded by Defendant Cheng's

contentions that the Government failed to prove that he had

knowledge of the transfers. Viewed in the light most favorable

to the verdict, the evidence established that Cheng oversaw the

financial affairs of PRC and was aware of the stock purchases. 

In this light, the evidence permits the inference that he

understood how those purchases would be paid for. 

III. Trial Errors

A. Prosecutorial Misconduct

During the trial, the Government questioned several

witnesses about the use of the Florida property following the

sale to Farris. The Defendants contend that these questions

exceeded the limits imposed by the district court on testimony

regarding the status of the land after the closing. The

Government notes, however, that the district court limited

testimony regarding only the value of the Florida property, not

all subjects having to do with it. It argues that its questions

were relevant to show the control exercised over the property by

the Defendants and their continued efforts to develop and sell

the property to prove that the sale to Farris was a sham

warehousing transaction. 
12

The trial court specifically restricted testimony regarding

the value of the property to a six month period surrounding

closing. The court, however, declined to adopt a similar rule

for evidence of development, deciding instead to rule on such

evidence on a case-by-case basis. Nonetheless, the court

requested that the Government not ask open-ended questions of the

witnesses on that subject. After careful review of the

Government's questions, we find no violation of the guidelines

set by the district court. 

The Defendants next argue that the prosecutors tainted the

trial by deliberately eliciting inflammatory hearsay statements

from Scott Smith, Vice President and Senior Loan Officer of

Guaranty during redirect examination by the Government. During

Smith's cross-examination, the Defendants inquired whether the

Florida loan had aroused Smith's attention in any way. On

redirect, the Government pursued this line of questioning, asking

whether Smith had reported the loan to any of his senior

officers. Smith testified, "I told Mr. Thompson that there was

some concern being voiced about the loan, that it may be a sham

loan to get money into Pacific Realty." Defense counsel

immediately objected, and the court retired the jury. When the

jurors returned, they were instructed to ignore the last of

Smith's statements because it was hearsay.

We disagree with the district court's description of the

statements. Hearsay "is a statement, other than one made by the

declarant while testifying at trial or hearing, offered to prove
13

the truth of the matter asserted." Fed. R. Evid. 801(c). 

Smith's statement was not offered to show that the loan was a

sham, but to reveal whether the loan had aroused his suspicions

and whether Smith had notified any other bank officer about it. 

It was not hearsay, and its introduction, therefore, did not

constitute reversible error. Finally, the Defendants

complain that several statements made by the prosecutor in

closing argument were wholly frivolous and prejudicial. 

Specifically, the Defendants point to several instances when the

prosecutor allegedly vouched for a Government witness. They also

refer to the prosecutor's remarks about the Defendants' failure

to explain the twin tower concept. And, last, the Defendants

allege that the prosecutor implied that they should be punished

for violations of civil regulations as well as criminal statutes. 

We find none of these arguments persuasive.

 The Government's remarks about Mr. Kuhn's testimony merely

pointed out that the Defendants' attacks on his credibility were

unsuccessful. The statements do not rise to the level of

vouching, most often described by this Court as "explicit

personal assurances of the witnesses veracity." United States v.

Binker, 795 F.2d 1218, 1224 (5th Cir. 1986), cert. denied, 479

U.S. 1085 (1987). The Government's references in rebuttal to the

Defendants' failure to explain the twin tower concept similarly

identified holes in the Defendants' defense theory, in this

instance, by pinpointing a weakness in their evidence. Finally,

a review of the record does not reveal an attempt by the
14

prosecutor to imply that violations of civil regulations should

lead the jury to punish the Defendants. Rather, the prosecutor's

unspecific reference to "rules and regulation" was made as part

of an expansive illustration of the Defendants' general

disrespect for the law.

B. Evidentiary Rulings

1. Kuhn Testimony

The trial court limited the testimony of one of the

Defendants' allegedly key witnesses, Michael Kuhn, a real estate

lawyer, who would have testified about the use of non-recourse

loans to execute real estate deals. The trial court limited the

testimony because Kuhn would be "testifying to his own experience

and impressions," leaving the Government no means to question his

accuracy. The court further stated that Kuhn's testimony on the

subject was impermissible because "there [were] no partial

studies, no statistics from which would give rise to any reliable

inferences. No testing the accuracy of the witness's opinion." 

Rule 702 of the Federal Rules of Evidence permits one

"qualified as an expert by knowledge, skill, experience,

training, or education" to testify when his "specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact issue." Fed. R. Evid. 702. As a

general rule, "questions relating to the bases and sources of an

expert's opinion affect the weight to be assigned that opinion

rather than the admissibility and should be left for the jury's

consideration." Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th
15

Cir. 1987). We find that in light of these rules, the limitation

of Kuhn's testimony was in error. Kuhn had specialized knowledge

and experience in the field of real estate closings, which were

beyond the knowledge and skills of the jurors. The absence of

scientific data supporting his opinions went to the weight the

jury should have accorded them. The error, however, was

harmless. 

Information about non-recourse loans was available from

other witnesses. The limitation of Mr. Kuhn's testimony,

therefore, did not so hamper the Defendants' ability to present

their defense as to mandate reversal of their convictions.

2. Romero Rehabilitation

The Defendants wished to examine Michael Carnes, the lawyer

representing Ben Romero, a key participant in the appraisal

scheme. The Defendants proffered Carnes in an attempt to

rehabilitate Romero's credibility, which the Government had

attacked by introducing prior inconsistent statements made by

Romero before the grand jury following his plea agreement with

the Government. Carnes was to testify about the tactics used by

the Government allegedly to coerce Romero into pleading guilty. 

The district court, however, correctly excluded Carnes's

testimony because it was not probative of Romero's

inconsistencies or impeachment. 

Rule 613(b) of the Federal Rules of Evidence requires that a

witness be "afforded an opportunity to explain or deny"

inconsistent statements proven by extrinsic evidence. It does
2 "Allen" refers to Allen v. United States, 164 U.S. 492 (1896). 

The term describes supplemental instructions urging jurors to

forego their differences and reach a unanimous verdict.

16

not mandate the examination of corroborating witnesses. To the

contrary, it is within the trial court's broad discretion to set

reasonable limits on rehabilitative testimony to prevent the

trial from meandering off into collateral matters. Beck v.

United States, 317 F.2d 865, 870 (5th Cir. 1963), cert. denied,

376 U.S. 972 (1964). 

C. Instructions

1. Allen Charges

After the jury deliberated for seven days, it informed the

court that it was deadlocked. The court then read the jury an

Allen charge2, but, over counsel's objections, omitted from the

charge language that the court believed coercive. In particular,

the district court omitted language encouraging the "majority"

and "minority" to reconsider their positions. It also failed to

repeat that the jury should not convict unless convinced of the

Defendants guilt beyond a reasonable doubt. The first omission,

the Defendants argue, had a coercive effect on the jury. The

second eliminated an essential reminder about the Government's

burden of proof.

We review Allen charges for compliance with two

requirements: "'(1) the semantic deviation from approved Allen

charges cannot be so prejudicial as to require reversal, and (2)

the circumstances surrounding the giving of an approved Allen

charge must not be coercive.'" United States v. Lindell, 881
17

F.2d 1313, 1321 (5th Cir. 1989) (quoting United States v. Bottom,

638 F.2d 781, 787 (5th Cir. Unit B Mar. 1981)), cert. denied, 493

U.S. 1087 and 496 U.S. 926 (1990). The district court is given

broad discretion to determine whether an Allen charge might

coerce a jury. United States v. Reeves, 892 F.2d 1223, 1229 (5th

Cir. 1990). 

In light of the complexity of the case, the sophistication

of the bank fraud scheme, and the length of the indictment, the

court did not err in giving the jury an Allen charge rather than

declaring a mistrial. See Lindell, 881 F.2d at 1321. Although

the court deviated from the Fifth Circuit's suggested Allen

charge, the modification was not so significant as to coerce the

jury to reach its verdict. Although the court did not address

the jurors in terms of majority and minority, it did properly

instruct all of them to reconsider their opinions, but not to

"surrender a conscientiously held conviction merely to reach a

verdict." The Defendants' contention that the jury's continued

deliberation is proof of the coercive effect of the instruction

does not convince us otherwise. We note, in fact, that the

jury's verdict was a discriminating one -- after further

deliberation, the jury remained deadlocked on two counts and

acquitted the Defendants of several others. 

Nor do we find omission of the reasonable doubt language to

be reversible error. The jury was reminded at least thirty-fives

times in the court's final jury charges that the Government had

to prove the elements of the crimes beyond a reasonable doubt. 
18

It also was informed of this burden of proof during jury

selection and closing arguments. Additionally, the court

provided the jurors with a written copy of the final charges

during deliberations. In light of these constant reminders of

the Government's burden, we conclude that the omission of the

reasonable doubt language from the Allen charge does not require

the reversal of the Defendants' convictions. 

2. Literal Truth 

The Defendants claim that they were entitled to a charge

instructing the jury that if the appraisal represented the

literal truth, they could not be found guilty of making false

entries for the purposes of 18 U.S.C. § 1006. The underlying

foundation of the Defendants' argument, however, misconstrues the

law. "The prohibition of false entries by [section 1006] is in

broad and comprehensive terms." United States v. Meyer, 266 F.2d

747, 754 (5th Cir.), cert. denied, 361 U.S. 875 (1959). Mr.

Justice Cardozo, in describing 12 U.S.C. § 592, a forerunner of

the modern bank fraud statutes, defined false entries to include

"any entry on the books of the [institution] which is

intentionally made to represent what is not true or does not

exist, with the intent to deceive [the institution's] officers or

to defraud the association." United States v. Darby, 289 U.S.

224, 226 (1933) (quoting Agnew v. United States, 165 U.S. 36, 52

(1897)). 

The appraisal entered by Cheng and Heath on the Guaranty

books was prepared by professional appraisers and revealed the
19

false assumptions on which it is based, but its purpose was to

represent to Guaranty that the Florida property was worth $11.2

million because highrise apartment towers would be built on it. 

That representation is not true; the plan to build the highrise

towers did not exist at the time the appraisal was entered. The

entry of the appraisal based on knowingly false assumptions with

the intent to defraud Guaranty falls well within the terms of

section 1006. The court, therefore, did not err in rejecting the

"literal truth" instruction proffered by the defense.

 3. Good Faith Defense

After lengthy discussions about the Defendants' request for

an instruction explaining their good faith defense, the court

instructed the jury that "one who acts with honest intent is not

chargeable with intent to defraud." The Defendants contend that

the word "chargeable" as used in the instruction eliminated their

entire defense, in effect telling the jury that the Defendants

could not have acted in good faith because they in fact had been

"charged" with the offenses.

The Government notes that despite the debate in the trial

court surrounding this instruction, the Defendants did not raise

this point of error. A party may not state one ground when

objecting to an instruction and attempt to rely on a different

ground for the objection on appeal. 9 Charles A. Wright and

Arthur Miller, § 2554 at 647; Palmer v. Hoffman, 318 U.S. 109,

119 (1943). Our review of this claim, therefore, is limited to

plain error. 
20

Although subject to the interpretation now suggested by the

Defendants, it is not obvious to us that the word "chargeable" in

the present context would so confuse the jurors. Inartful as the

court's choice of words may have been, it does not rise to the

level of plain error. 

4. Expansion of the Indictment

The Defendants next object that the court's instructions

regarding false entry and misapplication of funds permitted the

jury to find them guilty for acts not charged in the indictment. 

First, they argue that because the indictment referred to the

Defendants as officers, directors, and shareholders only, the

court erred when it instructed the jury that the Defendants were

responsible for their actions as "officer[s], agent[s], or

employee[s] of or connected in any capacity with" the

institution. The Defendants objected to the instruction in the

district court, but they did not do so on the ground that the

instruction expanded the indictment. Thus, we review for plain

error only. 

The trial court's instruction does not amount to plain

error. The court first read the indictment, referring to the

Defendants as officers, directors, and shareholders of Guaranty. 

It then read the applicable statutes to the jury, both of which

apply to "officer[s], agent[s], or employee[s] of or connected in

any capacity with" the institution. 18 U.S.C. §§ 657 & 1006. 

Then the court listed the elements of the offenses, repeating, as

the first element of each, the requirement that the Defendants be
21

"officer[s], agent[s] or employee[s]." 

To the extent that the instructions mandated this finding,

they were unnecessary because the parties had stipulated that the

Defendants were directors of Guaranty. Though superfluous, the

instructions did not expand the indictment to allow the jury to

convict the Defendants for actions taken in a capacity other than

officer or director.

The Defendants next contest the court's charge regarding

materiality. They argue that by instructing the jury that entry

of the appraisal was material, rather than that the false

highrise statement was material, it permitted the jury to convict

them based on any false statement contained in the appraisal,

whether made by them or not. The Defendants properly objected on

these grounds in the district court.

We review a jury instruction to determine whether "'the

court's charge, as a whole, is a correct statement of the law and

whether it clearly instructs jurors as to the principles of law

applicable to the factual issues confronting them.'" United States

v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990) (quoting United States

v. August, 835 F.2d 76, 77 (5th Cir. 1987)). "A trial judge is

given substantial latitude in tailoring the instructions so long as

they fairly and adequately cover the issues presented." United

States v. Pool, 660 F.2d 547, 558 (5th Cir. Unit B Nov. 1981). 

The court's instruction on false entries properly advised the

jury of the charges pending against the Defendants and the elements

of those crimes. The potential for confusion arising from the
22

court's reference to materiality does not negate this finding. The

court specifically instructed that the indictment charged only the

highrise statement to Defendants. S.R. 33, p. 55. We are

satisfied, therefore, that as a whole, the instruction fairly and

adequately informed the jury of the pertinent issues.

5. Clean Funds

The Defendants finally claim that they were entitled to a

charge that if there were untainted funds in their account

sufficient to cover each of the alleged interstate transfers, then

the jury should find the Defendants not guilty of interstate

transfer of funds obtained by fraud. As the discussion above

explains, supra II. B., this requested instruction does not

accurately reflect the law. 

CONCLUSION

Because counts 2 and 3 of the Defendants' indictments are

multiplicitous, we REMAND the case for dismissal of one count and

resentencing. The remaining convictions are AFFIRMED.

REMANDED WITH INSTRUCTIONS and AFFIRMED IN PART.