1 Briggs did not appeal from her conviction or sentence. United States Court of Appeals,

Fifth Circuit.

No. 91–7314

Summary Calendar.

UNITED STATES of America, Plaintiff–Appellee,

v.

Susan Carol BRIGGS, Defendant–Appellant.

July 9, 1992.

Appeals from the United States District Court for the Northern District of Texas.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

PER CURIAM:

Susan Carol Briggs appeals from the district court's denial of her 28 U.S.C. § 2255 motion

to vacate her sentence. We affirm.

I

A

This case is already the subject of two published opinions by this court. Briggs challenged

the validity of her 1986 conviction by a plea of guilty to two counts of bank frau d pursuant to 28

U.S.C. § 2255. 1 The district court denied the motion and an appeal ensued. Initially, t his court

reversed Briggs' conviction and remanded for entry of a new plea. U nited States v. Briggs, 920 F.2d

287, 296 (5th Cir.1991). Thereafter, we s ua sponte granted rehearing, withdrew our prior opinion,

and remanded for an evidentiary hearing to determine whether Briggs' guilty plea was knowing and

intelligent. United States v. Briggs, 939 F.2d 222, 228–29 (5th Cir.1991).

Following the hearing on remand, the magistrate judge recommended that the § 2255 motion

be denied because Briggs' conduct involved "implied" misrepresentations. The district court adoptedthe magistrate judge's recommendations and held that Briggs' implied misrepresentati ons were

sufficient to support a conviction under applicable provisions of the bank fraud statute; therefore,

her plea was knowing and intelligent. See 18 U.S.C. § 1344(a)(2). Briggs appeals that ruling.

B

From 1981 to 1986, Briggs worked first in th e Treasury Department of Electronic Data

Systems ("EDS") and later as an Assistant Cash Manager for Southmark Corporati on ("Southmark").

Her da y -to-day responsibilities at EDS and Southmark involved the investment of surplus cash in

company accounts at financial institutions.

Between 1984 and 1986 , Briggs initiated over a dozen unauthorized transfers from bank

accounts at Texas Commerce Bank and San Jacinto Savings and Loan Association belonging to an

EDS subsidiary and to Southmark, respectively. These transfers, totalling more than five millio n

dollars, were made to Dallas accounts belonging to Briggs, her two sons, and a friend.

In perpetrating her scheme, Briggs never made any overt misrepresentations, false promises,

or false statements to any financial institution. She would, however, purposefully mislead the bank

employees by submerging the unauthorized transfers in the midst of and for the s ame amounts as

authorized ones. She did not disclose her lack of authority to make the unauthorized transfers. She

admitted that she believed, at the time she caused the unauthorized transfers, that the bank employees

who handled her telephone calls thought she was making legitimate business transfers. She pretended

to have authority to transfer the money and did "everyt hing possible to make it sound like those

transfers were the same as" the authorized transfers.

II

Briggs raises two issues on appeal. First, the district court erred when it found that she had

entered her guilty plea knowingly and intelligently. Second, she did not put the transferring banks2 As enacted in 1984, and as applicable to this case, the bank fraud statute provided in relevant

part:

(a) Whoever knowingly executes, or attempts to execute, a scheme or artifice—

(1) to defraud a federally chartered or insured financial 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 [fined or imprisoned].

18 U.S.C. § 1344(a) (1988) (emphasis added). The bank fraud statute was amended in

1989; the amendment does not affect the analysis of this case. See Briggs, 939 F.2d at

225 n. 6. This court has already concluded that section 1344(a)(1) does not apply to this

case. Id. at 225. at risk when she transferred funds from her employer's accounts; therefore, she did not violate the

bank fraud statute.

A

Briggs contends that she pleaded guilty to bank fraud under the mist aken belief that her

conduct, in initiating wire transfers from her employers' accounts at financial institutions to her own

accounts and others, constituted false or fraudulent pretenses, representations, or promises under the

bank fraud statute, 18 U.S.C. § 1344(a)(2). 2 Therefo re, she argues, her guilty plea was not

knowingly and intelligently entered and was procured in violation of her due process rights under the

United States Constitution.

In its opinion, this court carefully delineated the basis for its holding that the record did not

reveal whether Briggs executed her scheme by means of any false or fraudulen t pretenses,

representations or promises and described the specific facts which should be developed on remand:

We do no t hold that the ordering of a wire transfer can never involve

misrepresentation, only that the act itself does not constitute misrepresentation. For example,

our precedent makes clear that § 1344 (a)(2) would encompass a wire transfer order

containing an actual misrepresent at ion (e.g., a false recitation of the authority for its

issuance). Thus, where t he defendant falsely represents that she is acting under her

employer's authority, we would have little trouble concluding that such conduct is squarely3 See United States v. Morgenstern, 933 F.2d 1108, 1113 (2nd Cir.1991), cert. denied,

–––

U.S. ––––, 112 S.Ct. 1188, 117 L.Ed.2d 430 (1992) (accountant committed bank fraud through

deliberate pattern of deceptive conduct designed to convince bank he was acting as duly

authorized agent of third-party victim by mixing legitimate transactions with illegitimate

transactions); United States v. Bonnett, 877 F.2d 1450, 1456 (10th Cir.1989) ("A representation

... consist[s] of words, made orally or in writing, or other conduct manifesting to another the

existence of a material present or past fact" (emphasis added)). prohibited by the statute. Nor do we suggest that there can never be an i mplied

misrepresentation of authority in such circumstances....

Briggs, 939 F.2d at 227 (italics in original, f ootnote omitted, underscore added). In other words, an

implicit misrepresenta t io n by Briggs that she was acting under her employer's authority would be

sufficient to establish the misrepresentation element of section 1344(a)(2).

"We review the district court's factual findings in a section 2255 proceeding for clear error.

The clear error standard applies equally to findings made by the magistrate judge and adopted by the

district court." United States v. Cates, 952 F.2d 149, 153 (5th Cir.1992) (citations omitted), cert.

denied,

––– U.S.

––––, 112 S.Ct. 2319,

––– L.Ed.2d

––––. The magistrate judge found that Briggs'

conduct impliedly misrepresented h er aut hority to make the wire transfers. After a review of the

record, we cannot say that this finding was clearly erroneous. 3 Indeed, it is clear that Briggs falsely

held herself out to have authority, which she in fact did not have. This conduct constitutes a false

pretense within the meaning of the statute. Briggs failed to meet her burden of proving that her plea

was unknowing and unintelligent. Briggs, 939 F.2d at 228–29.

B

Briggs also argues that a person cannot commit bank fraud without exposing a bank to risk.

She cites Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), and United

States v. Lemons, 941 F.2d 309, 316 (5th Cir.1991). According to Briggs, the bank must be a target

or victim of the fraud. Briggs testified that EDS and Southmark were the targets of her fraud and

that she never i nt ended t o st eal from Texas Commerce Bank or San Jacinto Savings and Loan

Association. It is established that a perpetrator's fraud need not cause a financial institution to sufferan actual loss for a valid conviction under § 1344. L emons, 941 F.2d at 315–16; M orgenstern, 933

F.2d at 1112–14; U

nited States v. Church, 888 F.2d 20, 24 (5th Cir.1989). In a section 1344(a)(2)

case, it is only necessary that the custodial bank be exposed to the risk of loss, i.e., exposed to civil

liabilit y. See Lemons, 941 F.2d at 315–16.

Although the record does not disclose whether the banks were ever threatened with a civil

action by EDS, Southmark or one of the banks to which Briggs transferred funds, her conduct clearly

put those institutions at risk. S ee Morgenstern, 933 F.2d at 1114 ("By falling prey to this scheme the

bank lost custody over its accountholder's money, exposing the bank to the real threat of civil liabilit y

for having succumbed to Morgenstern's fraudulent conduct"); s ee, generally, Bradford Trust Co. v.

Texas American Bank–Houston, 790 F.2d 407 (5th Cir.1 986) (as between initiating bank and

receiving bank, initiating bank was liable for losses resulting from fraudulently induced wire transfer

(applying Texas law)).

III

The judgment of the district court is therefore

AFFIRMED.