12-1093-cr 

United States v. Norris 

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON 

OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED 

WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY 

PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, on 

the 4th day of March, two thousand thirteen. 

PRESENT: RALPH K. WINTER, 

 DENNY CHIN, 

 CHRISTOPHER F. DRONEY, 

 Circuit Judges. 

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UNITED STATES OF AMERICA, 

 Appellee, 

 

 -v- 12-1093-cr 

 

DAVID NORRIS, 

 Defendant-Appellant. 

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FOR APPELLEE: RAJIT S. DOSANJH, Assistant United 

States Attorney (Brenda K. Sannes, 

Assistant United States Attorney), 

for Richard S. Hartunian, United 

States Attorney for the Northern 

District of New York, Syracuse, New 

York. 

FOR DEFENDANT-APPELLANT: CHRISTOPHER GADOURY (Joel M. 

Androphy, on the brief), Berg & 

Androphy, Houston, Texas. 

 Appeal from the United States District Court for the 

Northern District of New York (McAvoy, J.). 
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED. 

 Defendant-appellant David Norris appeals from a 

judgment of conviction entered March 20, 2012, after a jury found 

him guilty of bank fraud, in violation of 18 U.S.C. § 1344(2). 

Norris was sentenced principally to three years' probation and a 

$25,000 fine. We assume the parties' familiarity with the facts, 

procedural history, and specification of issues for review. 

 Norris challenges the sufficiency of the evidence 

underlying his conviction. A criminal defendant raising such a 

challenge "bears a heavy burden." United States v. Coplan, 703 

F.3d 46, 62 (2d Cir. 2012) (internal quotation marks and citation 

omitted). While we review such challenges de novo, we "view the 

evidence in the light most favorable to the government" and will 

affirm the conviction "if any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt." Id. (internal quotation marks and citations omitted). 

 Norris primarily argues that there was no evidence that 

he personally made material misrepresentations to the bank. "The 

well established elements of the crime of bank fraud are that the 

defendant (1) engaged in a course of conduct designed to deceive 

a federally chartered or insured financial institution into 

releasing property; and (2) possessed an intent to victimize the 

institution by exposing it to actual or potential loss." United 

States v. Barrett, 178 F.3d 643, 647-48 (2d Cir. 1999); see 18 

U.S.C. § 1344. A conviction under § 1344(2) requires proof of a 
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misrepresentation. See United States v. Ragosta, 970 F.2d 1085, 

1089 (2d Cir. 1992). 

 Norris's arguments that he did not personally make any 

misrepresentations ignore the fact that he was charged with 

aiding and abetting under 18 U.S.C. § 2. "[A] defendant may be 

convicted of aiding and abetting a given crime where the 

government proves that the underlying crime was committed by a 

person other than the defendant, that the defendant knew of the 

crime, and that the defendant acted with the intent to contribute 

to the success of the underlying crime." United States v. 

Hamilton, 334 F.3d 170, 180 (2d Cir. 2003). At the very least, a 

rational jury could have concluded beyond a reasonable doubt that 

Norris aided and abetted Brian Barber in misrepresenting that he 

had personally invested $834,000 in equity capital in the target 

business when he had not actually invested anything. 

 First, it is clear that Barber's underlying 

misrepresentation about the equity contribution constituted bank 

fraud. "[E]vidence beyond a reasonable doubt that defendants 

fraudulently evaded a known down payment requirement . . . is 

sufficient to support a bank fraud conviction." United States v. 

Brandon, 17 F.3d 409, 426-27 (1st Cir. 1994). Both the bank and 

the Small Business Administration required that Barber personally 

invest $834,000 in the business as a condition for the loan. See 

United States v. Rigas, 490 F.3d 208, 235 (2d Cir. 2007) ("For 

those misstatements to be material, . . . they had to be capable 

of influencing a decision that the bank was able to make."). To 

satisfy this condition at the closing, Barber presented, inter 
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alia, a cashier's check for $427,000 and a letter indicating he 

had deposited another $400,000 in an escrow account. A thirdparty affiliated with Norris, however, had actually deposited the 

$400,000 into the escrow account and, through a series of wire 

transfers, the same $400,000 was used to generate the cashier's 

check. This sum was returned to its source shortly after the 

closing. 

 Second, there was substantial evidence that Norris 

helped create this illusion that Brian Barber had made the equity 

contribution. Robert Barber, who was using his son Brian as a 

nominee to obtain the loan, testified that Norris took charge of 

obtaining the financing for the capital contribution. A 

handwritten fax from Norris indicated that he had taken care of 

the "down payment" condition for the loan. Joel Thomas testified 

that Norris played a role in procuring the fraudulent letter 

about the amount in escrow. The escrow agent testified that 

Norris was involved with all of the wire transfers in and out of 

the escrow account. Norris even told the SEC that he helped 

obtain a "bridge loan" for Brian Barber, which was allegedly 

repaid shortly after closing. 

Finally, a jury could reasonably find that Norris had 

the specific intent to victimize the bank. Under our precedent, 

"[t]he government had to prove beyond a reasonable doubt that 

appellant intended to expose the bank[] to losses." United 

States v. Nkansah, 699 F.3d 743, 749 (2d Cir. 2012). Failing to 

make a down payment necessarily exposes a bank to a greater risk 

of loss, see, e.g., Brandon, 17 F.3d at 427 n.15 (explaining that 
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"[d]own payments on a loan decrease the risk of default or 

nonrepayment"), and Norris's assistance in avoiding that payment 

demonstrates his intent to deprive the bank of this security. 

Norris was motivated to sell the company to Robert Barber, even 

without obtaining the $834,000 difference in the sale price, 

because it was part of his plan to "pump" up the seller's stock 

price and then "dump" the stock. To cover up for the missing 

difference in the sale price, Norris not only orchestrated wire 

transfers to create the false appearance that Brian Barber had 

the $834,000 before the closing, but he also arranged for Brian 

to sign a phony promissory note after the closing to cover up the 

sham. Later, when the FBI began investigating the loan, Norris 

fabricated documents showing that the "bridge loan" was actually 

provided to Barber in lieu of amounts the seller allegedly owed 

his mother. From this evidence, the jury could conclude beyond a 

reasonable doubt that Norris knew and intended to expose the bank 

to a greater risk of loss by avoiding the equity contribution 

requirement. 

Norris also argues that the district court erroneously 

admitted evidence of the "pump and dump" scheme, his cover-up of 

the fraud, and the distribution of the loan proceeds. We review 

evidentiary challenges for abuse of discretion. United States v. 

Quinones, 511 F.3d 289, 307 (2d Cir. 2007). We conclude this 

evidence was relevant and admissible for permissible purposes, 

such as to show motive, intent, consciousness of guilt, and 

falsity of the misrepresentations. See Fed. R. Evid. 404(b); 

United States v. Mickens, 926 F.2d 1323, 1329 (2d Cir. 1991); see 
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also United States v. Adkinson, 158 F.3d 1147, 1160 & n.23 (11th 

Cir. 1998) (noting that some "evidence that the loans proceeds 

were subsequently diverted might be relevant to show that the 

now-completed scheme was fraudulent," but that a "mountain of 

evidence . . . as to how the defendants spent their 'ill-gotten' 

gains" was not (emphasis added)). Furthermore, the district 

court's conclusion that the risk of unfair prejudice did not 

substantially outweigh the evidence's probative value was not 

arbitrary and irrational. See Fed. R. Evid. 403; Quinones, 511 

F.3d at 307-08. 

We have considered Norris's remaining arguments and 

find them to be without merit. Accordingly, we AFFIRM the 

judgment of the district court. 

 FOR THE COURT: 

 Catherine O'Hagan Wolfe, Clerk