UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-1775

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFRED FRED BARAKETT, a/k/a

Robert John Koch and John Doe,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(June 25, 1993)

Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit

Judges.

POLITZ, Chief Judge:

Alfred Barakett appeals convictions on four counts of bank

fraud in violation of 18 U.S.C. § 1344, three counts of interstate

transportation of forged securities under 18 U.S.C. § 2314, and two

counts of entering a bank with intent to commit a felony in

violation of 18 U.S.C. § 2113. He also appeals the sentence

imposed. Finding no error, we affirm.
2

Background

In February 1985, Barakett met Lonnie Kay Yeager in Kansas

City, Missouri, after obtaining her name through an organization

called Parents Without Partners. He introduced himself as Daniel

Joseph Merritt. The two met regularly for three weeks, after which

Barakett disappeared. The following January, Barakett introduced

himself to Janet Butler in Dallas, Texas, using the name Harold

Robert Prince. Butler operated a business called Corporate Child

Centers (CCC). Barakett gained Butler's confidence, promising

marriage and financial security. Butler accepted Barakett's offer

of assistance with the CCC checkbook. A few days later, Barakett

accompanied Butler to the Allied American Bank in Dallas, where

she, at his direction, consolidated her personal and business

accounts and deposited therein an $8,750 check drawn on

Ms. Yeager's account at the First Bank of Gladstone, Missouri.

Butler gave Barakett $5,800 cash from the deposit transaction.

Barakett then disappeared. First Bank of Gladstone refused payment

on the deposited check, identifying it as a forgery, and Allied

American deducted the $5,800 from personal funds which Butler had

deposited in the CCC account.

Within the next 11 months, Barakett traveled from coast to

coast, perpetrating similar schemes, using checks drawn on the CCC

account. Each time, after gaining the confidence of a female

victim under an assumed name and becoming involved in her finances,

he would persuade her to deposit a forged CCC check, receive cash

from the transaction, and then disappear. The evidence reflects
 

1 On these occasions, the victim repaid the bank with funds

from other sources.

3

the following scenario:

Month Cash Received Location

Jan. $3,550 Albequerque, NM

March 2,950 Reading, PA

April 5,885 Houston, TX

May 6,850 Greenville, SC

May 6,750 Grant's Pass, OR

July 9,650 Louisville, KY

July 9,850 Shepherdsville, KY

August 9,540 Bakersfield, CA

Nov. 4,850 Boise, ID

Butler had closed the CCC account immediately upon learning of the

first forgery; Allied American Bank refused payment on all CCC

checks passed by Barakett. The banks into which Barakett procured

deposit of the CCC checks generally deducted the "cash back"

amounts from the victims' accounts. On at least two occasions,

Barakett's victim had insufficient funds on deposit to cover the

shortfall.1

In January 1990, Barakett's operations continued in Salt Lake

City, Utah, when, calling himself John Mark Fields, he contacted

JoAnn Loveless, whom he had met for the first time in September

1989. After a brief relationship with Loveless, Barakett

disappeared. The following month in Dallas, Barakett introduced

himself to Imogene Copp as Robert Crow, Jr. He accompanied Copp to

a branch office of Bank One and persuaded her, over warnings from

bank officers, to deposit a $9,440 check payable to her, drawn on

Loveless's Salt Lake City account. Barakett disappeared after

receiving $4,400 from this transaction. Loveless wisely had closed
4

her account shortly after Barakett's disappearance; the Salt Lake

City bank refused payment on the forged check. Bank One charged

the shortfall against Copp's account.

In March 1990, Barbara McGuire, acting at Barakett's

direction, deposited a $9,250 check drawn on Copp's Bank One

account to her California bank account. Barakett received $4,750

cash back from that transaction before disappearing. Bank One

refused payment on the forged check.

The grand jury returned a nine-count indictment against

Barakett. Counts one and two charged bank fraud perpetrated on

Allied American Bank in violation of 18 U.S.C. § 1344, arising from

his use of the Yeager check and CCC checks, respectively. Counts

three and four charged bank fraud perpetrated on Bank One, arising

from his use of the Loveless check and the Copp check,

respectively. Counts five through seven charged interstate

transportation of forged securities in violation of 18 U.S.C.

§ 2314, arising from use of a CCC check in Idaho, the Loveless

check in Dallas, and the Copp check in California. Finally, counts

eight and nine charged entry of a bank with intent to commit a

felony affecting such bank in violation of 18 U.S.C. § 2113,

arising from his entering Allied American Bank with Butler and Bank

One with Copp.

A jury found Barakett guilty on all counts. He was sentenced

to 240 months imprisonment on count eight and five years probation
 

2 The Sentencing Guidelines did not apply to the offenses

charged in these counts, committed prior to November 1, 1987.

 

3 Under the Sentencing Guidelines, the district court

applied U.S.S.G. § 2F1.1 to arrive at an offense level of 17. In

view of the amount of planning, number of victims, and amounts of

money involved in Barakett's conduct, however, the district court

assessed a six-point offense level increase. Finding Barakett's

criminal history inadequately reflected by a criminal history score

of zero, the district court likewise opted to sentence him under

criminal history category II, resulting in a guideline sentencing

range of 51-63 months imprisonment.

 

4 938 F.2d 579 (5th Cir. 1991), cert. denied, 112 S.Ct.

1268 (1992).

5

on counts one, two, and five.2 As to counts three, four, six,

seven, and nine, under the Guidelines the court imposed 57-month

prison terms to run concurrently with the sentence imposed on count

eight, and three-year supervised release terms to run concurrently

with the probation terms imposed on counts one, two, and five.3

The district court also ordered payment of restitution to Copp and

Davis, and the statutory assessments. Barakett timely appealed.

Analysis

1. Limitations Period

Barakett first claims that the five-year limitations period of

18 U.S.C. § 3282 barred his prosecution on count eight of the

indictment. In United States v. Arky,

4 we held that failure to

assert the statute of limitations at trial waives that affirmative

defense. Barakett's conceded failure to do so in the case at bar

disposes of this issue.
 

5 United States v. Garner, 581 F.2d 481 (5th Cir. 1978).

 

6 Glasser v. United States, 315 U.S. 60 (1942).

 

7 Jackson v. Virginia, 443 U.S. 307 (1979).

 

8 E.g., United States v. Heath, 970 F.2d 1397 (5th Cir.

1992), cert. denied, 113 S.Ct. 1643 (1993).

 

9 When Barakett committed the offenses charged in counts

one and two of the indictment, 18 U.S.C. § 1344 punished knowing

execution of schemes or artifices to defraud or obtain property

through false promises, only from federally insured or chartered

institutions. In 1989, Congress substantially increased the

penalties for bank fraud and amended the statute so that it reads

6

2. Sufficiency of the Evidence

Barakett next challenges the sufficiency of the evidence

supporting his bank fraud convictions. Mindful that weight and

credibility assessments lie within the exclusive province of the

jury,5 in considering this claim we must view the evidence and draw

all reasonable inferences favorable to the verdict.6 If the

evidence, so viewed, would permit a rational jury to find all

elements of the crime beyond a reasonable doubt, we must affirm the

conviction.7 The evidence need not, however, exclude all

hypotheses of innocence.8 In order to convict Barakett under

18 U.S.C. § 1344, the government had to prove his knowing execution

of or attempt to execute "a scheme or artifice -- (1) to defraud a

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 financial institution, by means of

false or fraudulent pretenses, representations or promises."9
as above. Financial Institutions Reform, Recovery, and Enforcement

Act, Pub.L. 101-73, § 961(k), 103 Stat. 500 (1989). Those

amendments, however, do not affect our sufficiency analysis in the

instant case.

 

10 Barakett also argues that he did not, by causing his

female victims to present forged checks, use "false or fraudulent

pretenses, representations, or promises" as required by section

1344(2). The indictment against Barakett charged violation of and

the jury instructions permitted conviction under either portion of

section 1344. The evidence fully supports Barakett's guilt under

section 1344(1); we therefore need not consider Barakett's

contention that the evidence could not support a conviction under

section 1344(2). Compare United States v. Medeles, 916 F.2d 195

(5th Cir. 1990) (where indictment alleged only violation of former

section 1344(a)(2) and court instructed jury only as to that

subsection, conviction could not rest on sufficiency of evidence

under former section 1344(a)(1)).

 

11 United States v. Saks, 964 F.2d 1514 (5th Cir. 1992)

(citing United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.

1987)).

 

12 United States v. Church, 888 F.2d 20, 23 (5th Cir. 1989)

(citing United States v. McClelland, 868 F.2d 704, 709 (5th Cir.

1989)).

7

Barakett essentially contends that he intended to defraud only

his female victims and thus did not execute schemes to defraud any

financial institution.10 In support of this assertion, he claims

that the institutions suffered at worst purely theoretical

potential losses because they could and did recover from the

victims. This misperceives the law.

The term "scheme to defraud" does not admit of easy and

precise definition,11 but includes "fraudulent pretenses or

representations intended to deceive others, in order to obtain

money from the victim institution."12 While section 1344(1)
 

13 United States v. Hooten, 933 F.2d 293 (5th Cir. 1991).

 

14 Id. (scheme by bank officer to defraud both institution

and customer supports liability under section 1344).

 

15 E.g., United States v. Lemons, 941 F.2d 309 (5th Cir.

1991). Even proof of an extremely remote risk will suffice.

Church (evidence sufficient to support conviction under former

section 1344(a)(1) where defendant issued worthless drafts against

nonexistent bank account).

 

16 Lemons (forgery of endorsement on and deposit of check

drawn on victim institution supports conviction under

section 1344(1)).

 

17 Hooten (mere availability of action against borrower

attempting to avoid payment on note fraudulently marked "paid" by

defendant bank employee would not eliminate risk of loss); see also

United States v. Frydenlund, 990 F.2d 822 (5th Cir. 1993) (knowing

execution of check-kiting scheme supports liability under

section 1344(1)).

8

prohibits only crimes directed at financial institutions,13 we have

not held that the statute punishes only schemes directed solely at

institutional victims.14 We have recognized that knowing execution

of schemes causing risk of loss -- rather than actual loss -- to

the institution, can be sufficient to support conviction.15

Barakett admits that he induced many victims to deposit forged

checks drawn on Allied American Bank and Bank One. In so doing, he

knowingly engaged in a scheme placing those institutions at risk.16

Barakett likewise admits to inducing deposit of forged instruments

at Allied American and Bank One by Butler and Copp. These deposits

exposed both instututions to risk of loss, even though they

ultimately recovered from Butler and Copp.17 The evidence fully
 

18 United States v. Galvan, 949 F.2d 777 (5th Cir. 1991).

We must address this claim although raised for the first time on

appeal. Id. at 781.

9

supports Barakett's bank fraud convictions.

3. Multiplicity of Sentences

Barakett further asserts multiplicity in the sentences imposed

on counts one and two, and counts three and four. Relying on

United States v. Lemons, he argues that counts one and two charge

execution of a single scheme to defraud Allied American Bank, and

that counts three and four do the same with respect to Bank One.

This argument patently is without merit.

In evaluating this claim, we must determine whether the

punishments imposed comport with legislative intent.18 In Lemons,

we considered a bank fraud indictment which charged a separate

violation of section 1344 for each of six occasions upon which the

defendant received funds from the bank. We noted that, although

the defendant improperly received bank funds on several occasions,

the receipts resulted from a single scheme to defraud. We

therefore concluded that Congress intended their treatment as a

single offense. That, however, is not the case before us.

Barakett can identify no linkage between the conduct charged in

counts one and two, or between that of counts three and four other

than victim and modus operandi. Because counts one through four

involved separate fraudulent schemes, separate sentencing presents

no multiplicity problem.
 

19 United States v. Holley, 942 F.2d 916 (5th Cir. 1991).

10

4. Jury Instructions

Barakett faults the district court's jury instructions as

creating a substantial risk of non-unanimity of verdict. The jury

charge permitted conviction on the bank fraud counts if the

government proved beyond a reasonable doubt:

That the defendant . . . devised a scheme or plan to

defraud, or to obtain money by false or fraudulent

pretenses and representations, from Allied American Bank

or Bank One, as charged in the indictment.

According to Barakett, under these instructions his bank fraud

convictions could have rested upon findings by some jurors that he

executed schemes to defraud the victim institution and by others

that he obtained the institution's property through false or

fraudulent pretenses or representations. He therefore claims that

the district court should have provided a special jury instruction

to ensure unanimity before conviction.

Jury instructions on a single count embracing multiple

separate offenses deprive a defendant of the right to unanimity

where they create a genuine risk of conviction in the absence of

unanimous juror agreement of the commission of one of them.19

Assuming arguendo that sections 1344(1) and 1344(2) state separate

offenses, however, we need not decide whether the district court

erroneously charged the jury in the instant case. As Barakett

necessarily concedes, his failure to request such an instruction at

trial limits our review of the jury instructions to a search for
 

20 United States v. Razo-Leora, 961 F.2d 1140 (5th Cir.

1992); United States v. Birdsell, 775 F.2d 645 (5th Cir. 1985),

cert. denied, 476 U.S. 1119 (1986); see Fed.R.Crim.P. 52(b) ("Plain

errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the [trial]

court.").

 

21 United States v. Vontsteen, 950 F.2d 1086, 1092 (5th

Cir.) (en banc), cert. denied, 112 S.Ct. 3039 (1992).

 

22 We have recognized that such instructions generally

suffice to ensure unanimity. Holley.

 

23 Razo-Leora (in perjury prosecution where indictment

alleged multiple perjurious statements, absence of special

unanimity instruction as to each alleged perjurious statement not

plain error).

 

24 Barakett does not challenge the district court's upward

departure in criminal history category. We note, however, that his

foreign convictions, which did not enter into criminal history

11

plain error.20 Under that standard, only error "which, when

examined in the context of the entire case, is so obvious and

substantial that failure to notice and correct it would affect the

fairness, integrity or public reputation of judicial proceedings"

admits of reversal.21 Here, the district court gave a general

unanimity instruction,22 and charged the jury on the bank fraud

counts substantially as requested by Barakett. Any defect in the

challenged jury instructions did not rise to the level of plain

error.23

5. Sentencing Departure

Finally, Barakett challenges the basis for and reasonableness

of the six-point increase in the offense level in the sentencing on

counts three, four, six, seven, and nine.24 District courts may
score calculations, fully support that departure. See U.S.S.G.

§ 4A1.2(h) ("Sentences resulting from foreign convictions are not

counted, but may be considered under § 4A1.3 . . . ."); id. § 4A1.3

(district court may depart upward where criminal history score

inadequately reflects seriousness of defendant's past criminal

conduct of likelihood of recidivism).

 

25 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0.

 

26 18 U.S.C. § 3553(c)(2).

 

27 E.g., United States v. Lambert, 984 F.2d 658 (5th Cir.

1993) (en banc).

 

28 United States v. Davidson, 984 F.2d 651 (5th Cir. 1993).

12

impose sentences outside the range established by the Guidelines in

cases presenting "aggravating or mitigating circumstance[s] of a

kind, or to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines that should

result in a sentence different from that described."25 District

courts must, however, state on the record their reasons for

departing from the guideline sentencing range,26 and the degree of

departure must be reasonable.27 Where the district court determines

that a case presents, in unanticipated degree, aggravating factors

already taken into account by the Sentencing Commission, we review

its decision to depart only for abuse of discretion.28

In the instant case, the district court justified its upward

departure because criminal history category I failed adequately to

reflect Barakett's background, and in view of "[t]he extended

period of time over which the offenses were committed, the large
 

29 Barakett also argues that sentencing on the basis of

uncharged conduct violated his rights under the fifth and sixth

amendments, and that the district court relied on insufficiently

reliable evidence in assessing the upward departure. Because

Barakett did not call these arguments to the attention of the

district court, and failure to consider them now will not result in

manifest injustice, we decline to do so. United States v. Sherbak,

950 F.2d 1095 (5th Cir. 1992).

 

30 Compare Davidson (district court abused its discretion in

departing upward to account for number of victims where defendants

engaged in scheme to defraud seven insurance companies).

13

numbers of victims involved, which [were] both banks and individual

females, [and] the amount of planning necessary to commit a

continuing pattern of offenses of this magnitude." Barakett argues

that the number of victims involved in his offenses could not

provide a basis for departure in this case, and that in any event,

the district court departed to an unreasonable degree.29

As Barakett points out, U.S.S.G. § 2F1.1(b)(2) permits a

two-point upward offense level adjustment "[i]f the offense

involved . . . a scheme to defraud more than one victim." The

presentence report reflects that since 1984 Barakett has victimized

at least 31, and perhaps as many as 56, women. We cannot conclude

that the district court abused its discretion in determining that

the Sentencing Commission did not, in framing the guidelines,

anticipate conduct involving such a large number of victims.30

Further, in view of the other reasons assigned for departure, which

we find fully supported by the record, we do not conclude that the

27-month departure was unreasonable.

The convictions and sentences are AFFIRMED.