* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 16 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. CROSBY L. POWELL,

Defendant-Appellant. No. 98-1111 (D.C. No. 97-CR-91-ALL) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Crosby L. Powell appeals from his conviction follow ing a ten-day jury trial on three counts of making a false statement, in vio lation of 18 U.S.C. § 1001; six counts of bank fraud, in violation of 18 U.S.C. § 1 344; and two counts of using a false social security number, in violation of 42 U. S.C. § 408(a)(7)(B). He also appeals his sentence to a forty-six month term of i mprisonment and five-year term of supervised release. We affirm.

BACKGROUND False Statements to the Social Security Administration On November 20, 1990, Powell applied to the Social Security Administration for supplemental security income (SS I) benefits. During the eligibility evaluation process, Powell asserted that he had no bank accounts. The statement, however, was false. On the application date, he had a savings account at Capital Federal Savings and Loan with a balance of $3,138.96, which was above the $2,000 limitation on assets and would hav e, if known, precluded Powell from receiving SSI benefits. Powell also made false statements during two interv iews conducted to determine whether he remained eligible for SSI. OnMarch 8, 1993, he claimed that he was receiving no income when, in fact, he w as receiving a salary from his business, Crosby L. Powell and Associates, which ha d a division called CLP1 Powell opened an account at Central Bank in the nam e of Crosby L. Powell

and Associates; at City Center National Bank in the name of CLP Services Company; at the Greater Denver Credit Union in the name of Crosby L. Powell d/b/a CLP Services Co.; and at Norwest Bank in the name of Crosby L. Powell d/b/a Crosby L. Powell and Associates. He used fal se social security numbers at City Center National Bank and the Greater Denver Cr edit Union. -3- Services Company. He made similar false statements on March 23, 1995. Powell received $17,950 in SSI benefits to which he was no t entitled and approximately $2,419 in related Medicaid benefits.

Bank Fraud and Use of a False Social Security Number Powell was charged with engaging in four separate b ank fraud schemes, from February 1992 through June 1994. Powell opene d accounts at four different banks under various versions of his name or in the name of his business, at times using false social security numbers to forestall ne gative reports on his banking history. 1 Into these accounts he deposited some legitimate ly-obtained funds, plus stolen checks and checks drawn on closed accounts. He then wrote checks and made cash withdrawals against the uncollectible dep osits. Powell’s deposits from unauthorized sources at all four banks totaled$187,547.46. After recovering some of the money for returned checks, the banks’ aggregate loss was $59,158.60.-4- DISCUSSION On appeal, Powell raises five issues: (1) whether certain counts of the controlling indictment were multiplicitous; (2) whe ther the district court abused its discretion in denying Powell’s motion under Fed . R. Crim. P. 14 to sever trial of the social security counts from the bank fraud c ounts; (3) whether the district court erred in limiting the government’s disclosure of information related to another investigation; (4) whether the district cou rt erred in admitting evidence of other crimes, wrongs, or acts that should have beenexcluded under Rule 404(b) of the Federal Rules of Evidence; and (5) whether t he district court erred in calculating the amount of loss to the victims, ther eby increasing the offense level under U.S.S.G. § 2F.1.1. Multiplicity We review de novo an argument on multiplicity, whic h “refers to multiple counts of an indictment which cover the same criminal behavior.” United States v. Wall , 37 F.3d 1443, 1446 (10th Cir. 1994) (quotation om itted). “The central question for determining multiplicity is whether a jury could plausibly find that the actions described in the disputed counts of the indictment, objectively viewed, constituted separate executions of the bank fraud scheme.” Id. (quotations omitted). “ 

### < [E]ach separate execution of a scheme to defraud may be pled as a distinct count of the indictment.’” Id. (quoting United States v. Rimell , 21 F.3d-5-

281, 287 (8th Cir. 1994)). We have previously reje cted contentions that targeting a single bank as a victim necessarily means a singl e scheme and that “every transaction pursuant to which [the defendant] acqui red money was all part of a unitary [bank fraud] scheme, executed only once.” Id. at 1446-47. Here, Powell asserts that it is multiplicitous to c harge him with two separate counts of bank fraud relating to his deali ngs with Central Bank (Counts II and III) and two separate counts relating to Norwest Bank (Counts IX and X). The claim is that Counts II and IX charge the conto urs of schemes to defraud these two banks and that Counts III and X separatel y charge acts necessary to the completion of the schemes. For his primary support , Powell points to indictment language incorporating Counts II and IX by referenc e in Counts III and X. The charged scheme called for the withdrawal of una uthorized funds from the targeted banks, using an account balance secure d through the deposit of uncollectible checks. Accordingly, each withdrawal was a separate and distinct execution of the same scheme, not an integrally-rel ated act in furtherance of a single offense. The use of incorporation language in the indictment does not change our analysis. Cf. United States v. Serino , 835 F.2d 924, 930 (1st Cir. 1987) (holding that incorporation by reference of c onspiracy count into substantive count does not constitute multiplicity) . We affirm the district court’s conclusion that the indictment was not multiplicito us.-6- Severance “Whether to grant severance under Rule 14 rests within the discretion of the district court and the burden on defendant to s how an abuse of discretion in this context is a difficult one. Prejudicial joind er occurs under Rule 14 when an individual’s right to a fair trial is threatened or actually deprived.” United States v. Johnson , 130 F.3d 1420, 1427 (10th Cir. 1997), cert denied , 119 S. Ct. 78 (1998) (quotations omitted). A defendant who wishe s to remain silent on some counts and testify on other counts is not entitled to a severance under Rule 14 without a convincing showing that he has both important tes timony to give concerning one count and strong need to refrain fro m testifying on the other. In making such a showing, it is essenti al that the defendant present enough information--regarding the nature of the testimony that he wishes to give on one count and h is reasons for not wishing to testify on the other--to satisfy the cou rt that the claim of prejudice is genuine and to enable it to intelligen tly weigh the considerations of economy and expedition in judicia l administration against the defendant’s interest in having a free c hoice with respect to testifying. United States v. Martin , 18 F.3d 1515, 1518-19 (10th Cir. 1994) (quoting United States v. Valentine , 706 F.2d 282, 291 (10th Cir. 1983) (further citat ion omitted)). Powell argues that separate trials would have givenhim the opportunity to provide testimony on the charges that he had made f alse statements to obtain SSI benefits, without jeopardizing his defense to the b ank fraud charges. He would have testified that he had met eligibility requirem ents whether or not the charged-7-

bank fraud had occurred. Because this proposed tes timony would have placed his bank fraud activities directly at issue, it does no t support a need for separate trials. The district court did not abuse its discr etion in denying the motion for a

severance. Discovery Violations To establish a violation of a defendant’s due process rights under Brady v. Maryland , 373 U.S. 83 (1963), there must be a showing that the prosecution suppressed the evidence, the eviden ce would have been favorable to the accused, and the suppressed e vidence was material. Evidence is material if there is a reaso nable probability that, had the evidence been disclosed to the defens e, the result of the proceedings would have been different, i.e., when t he Government’s evidentiary suppression undermines confidence in th e outcome of the trial. In determining whether [the defendant] has satisfied these requirements, the court views the undisclosed evide nce in relation to the record as a whole, as the materiality of exculp atory evidence will vary with the overall strength of the government’s case. Moore v. Reynolds , 153 F.3d 1086, 1112 (10th Cir. 1998), cert. denied , 1999 WL 25232 (U.S. Mar. 22, 1999). We review Brady claims de novo. See Newsted v. Gibson , 158 F.3d 1085, 1094 (10th Cir. 1998), petition for cert. filed , (U.S. Mar. 15, 1999) (No. 98-8597). Powell requested records from an F.B.I. investigati on into a check-kiting scheme carried out by a group of individuals which included Powell’s son. The district court ordered production of any evidence that overlapped with the investigation into the charges against Powell, but refused to order disclosure of-8-

information that did not relate to the investigatio n of Powell. In compliance with the order, the government produced one item--a chec k drawn on the account of an individual named Malcolm Green. The Green check ha d been deposited into the son’s account; other Green checks had been deposite d into Powell’s account. Powell asserts that production of the entire F.B.I. file on the check-kiting scheme would have bolstered his defense that other individuals had deposited uncollectible checks into the bank accounts, in that his son was a proposed alternative suspect. This argument is simply too s peculative to establish a reasonable probability of a different outcome. Con sidering the allegedly suppressed evidence in light of the record as a who le, we conclude that the government did not fail to disclose known, favorabl e evidence rising to a material level of importance. We reject Powell’s Brady claim. Evidentiary Rulings “We review the admission of evidence at trial for a buse of discretion. However, even if the trial court erroneously admits evidence, such error does not require reversal if it was harmless.” United States v. Wittgenstein , 163 F.3d 1164, 1172 (10th Cir. 1998) (citations omitted). E vidence of prior uncharged misconduct, or bad character evidence, is properly admitted under Rule 404(b) if: (1) it is offered for a proper purpose under the Ru le; (2) it is relevant; (3) the trial court makes a Rule 403 assessment that the probati ve value of the evidence is not2 Rule 404(b) provides:

(b) Other crimes, wrongs, or acts . Evidence of other crimes, wrongs, or acts is not admissible to prove the char acter of a person in order to show action in conformity therewith. It m ay, however, be admissible for other purposes, such as proof of mot ive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accu sed, the prosecution in a criminal case shall provide reason able notice in advance of trial, or during trial if the court excu ses pretrial notice on good cause shown, of the general nature of any suchevidence it intends to introduce at trial.

-9- substantially outweighed by its potential for unfai r prejudice; and (4) the trial court, upon request, instructs the jury that the ev idence is to be considered only for the proper purpose for which it was admitted. See Huddleston v. United States , 485 U.S. 681, 691-92 (1988). 2 “Evidence admissible for one of the purposes specif ied in Fed. R. Evid. 404(b) and res gestae evidence are not always separated by a bright line.” United States v. Kimball , 73 F.3d 269, 272 (10th Cir. 1995). Evidence of other bad acts “should not be suppressed when those facts come in as res gestae –‘as part and parcel of the proof of the offense [ ] charged in the indictment.’” Id. (quoting United States v. Gano , 560 F.2d 990, 993 (10th Cir.1977)). Powell argues that the district court abused its di scretion in admitting numerous invalid checks into evidence at trial, bec ause these checks constituted-10-

evidence of other crimes, wrongs or acts prohibitedunder Rule 404(b). This argument must be placed in the context of the bank fraud counts of the indictment, which alleged a scheme of depositing st olen checks and checks drawn on closed accounts into Powell’s bank accounts duri ng the period from February 1992 through June 1994. A review of the record reveals that some of the contested exhibits were admitted as part of the “res gestae” of the charged offenses. Others were admitted under Fed. R. Evid. P. 404(b) to show identity, abs ence of mistake, plan, or knowledge. For each exhibit, the district court ma de an explicit ruling with an explanation of its rationale and, if necessary, gav e an appropriate limiting instruction. We find no abuse of discretion in th e district court’s evidentiary rulings. Calculating Loss for Sentencing Purposes Under U.S.S.G. § 2F1.1 Section 2F1.1, the sentencing guideline for offense s involving fraud and deceit, increases the base offense level for a frau d offense to account for the loss caused by defendant. “We review the district court ’s findings determination of a U.S.S.G. § 2F1.1 loss under the clearly erroneous s tandard, but we review the factors the court may properly consider de novo.” United States v. Moore , 55 F.3d 1500, 1501 (10th Cir. 1995). “[L]oss need notbe determined with precision.-11-

The court need only make a reasonable estimate of t he loss, given the available information.” U.S.S.G. § 2F1.1, comment (n.9). Powell argues that the district court miscalculate d the loss to his victims by including the amount he received in SSI benefits and Medicaid, because he would have been entitled to these benefits in spite of the money received from his bank fraud offenses. After reviewing the record, w e conclude that the district court’s inclusion of these amounts in the loss calc ulation was not unreasonable and thus, not clearly erroneous. CONCLUSION Appellant’s motion to supplement the record is GRAN TED. The judgment of the United States District Court for the Distric t of Colorado is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge