* At the parties’ request, the case is unanimously ordered submitted

without oral argument pursuant to Fed. R. App. P. 3 4(f) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and collateral estop pel. The court generally disfavors the citation of orders and judgments; nev ertheless, an order and judgment may be cited under the terms and condition s of 10th Cir. R. 36.3. 

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

### JAN 28 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RALPH PAYNE, SR., Defendant - Appellant. No. 02-6130 D.C. No. CR-01-139-L (W. D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , LUCERO and HARTZ , Circuit Judges.

This direct criminal appeal requires us to assess, among other things, the extent to which communication between jurors and co urt security officers mandates a mistrial. A jury convicted Ralph Payne of two counts of bank fraud in violation of 18 U.S.C. § 1344(1) and one count of p ossession of counterfeit- 2 -

securities in violation of 18 U.S.C. § 513(a). Pay ne appeals, arguing that (1) the district court erred in admitting incomplete bank s ignature cards; (2) there was insufficient evidence to sustain his conviction; an d (3) the court erred in denying his motion for a mistrial when a court security off icer told a juror that the men seated behind the defense counsel’s table were depu ty marshals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affi rm. I Count One of the superseding indictment alleged that Payne engaged in a scheme to defraud Bank One, located in Oklahoma City, Oklahoma. According to the federal grand jury, the purpose of this scheme was to inflate an existing bank account artificially with the deposit of a worthles s check, thereby enabling the withdrawal of funds from the account before the worthless check was detected. With regard to this count, the grand jury alleged t hat in October 1997, Eric S. Hawke opened a checking account at Bank One, forHawke Productions, Inc., a corporation engaged in concert promotion. Payne wa s added as a signatory to the account on June 5, 1998. Hawke served as presidentof Hawke Productions, and Payne as vice-president. On June 18, 1998, Hawke deposited a check into the Hawke Productions account at Bank One in the amount of $18,000, drawn on Payne’s personal checking account. Payne had signed the check, but had not filled out the rest of1 When shown the $18,000 check by a special agent from the FBI, Payne

admitted that it contained his signature but denied he wrote the name of the payee or the amount. - 3 - it. 1 After this check was deposited, Hawke made out a check payable to “cash” in the amount of $13,500. On June 23, 1998, the $18,0 00 check signed by Payne was returned to Bank One as drawn on insufficient f unds. That same day, deposits totaling $30,000 were made to the Hawke Pr oductions account at Bank One, consisting of two checks drawn on the account of Misty Satterlee. These checks were also returned as drawn on insufficient funds. Subsequently, Bank One closed the Hawke Productions account. Count Two of the indictment alleged that Payne enga ged in a scheme to defraud Arvest United Bank. Specifically, the gran d jury alleged that the purpose of the scheme—similar to the first count—was to def raud the bank by depositing a counterfeit check drawn on the account of Hormel Foods Corporation and immediately withdrawing funds before the counterfei t check was detected. As to this count, the grand jury asserted that Payn e obtained a check in the amount of $34,785.45, drawn on the account of Horme l Foods Corporation and made payable to Erudite Entertainment, Inc. On Jul y 12, 2000, Payne and Karim Muhammad opened a checking account at Arvest United Bank for Erudite Entertainment, Inc., a corporation involved in prom oting concerts. Muhammad identified himself as the CEO of the corporation, a nd Payne identified himself as2 On one occasion, however, Payne gave Muhammad $2, 100 in cash. - 4 - the president. To open the account, they deposited the Hormel check. Two days later, they returned to the bank and cashed a $10,0 00 check, payable to Muhammad, drawn on the Erudite account. In the next few days, the pair returned to the bank two times to cash Erudite chec ks, payable to Muhammad, in the amounts of $18,000 and $6,000, respectively. O n each occasion, Muhammad cashed the checks and gave Payne the money. 2 At some point, the branch manager of Arvest United became concerned about the size of the opening deposit check and als o the checks presented to the bank thereafter. Consequently, she contacted Horme l’s bank and then a representative of Hormel; she learned that the $34, 785.45 Hormel check was indeed counterfeit. Hormel reviewed its records, d iscovered that the check with the number corresponding to the $34,785.45 check ha d been issued to its vendor M&M Supply, Inc. in the amount of $123.95, and conf irmed Hormel did not have a vendor named Erudite Entertainment. An FBI agent interviewed Payne about the Hormel che ck, and later testified that Payne told him he received the check from thre e individuals whose last names Payne did not know. Payne also denied keepin g any of the money withdrawn from the bank following the initial depos it; he claimed he returned the- 5 -

money to the individuals who gave him the Hormel ch eck in order to build trust for future business dealings in the entertainment i ndustry. A jury convicted Payne of both counts of bank fraud , and one count of possession of a counterfeit security (the Hormel ch eck). Following the jury’s verdict, a court security officer (“CSO”) told the FBI (who in turn informed the government) that he had communicated with one jurorduring the trial. Notified of this, Payne filed a motion for a mistrial. The district court held a hearing to determine the extent and nature of the communicatio n. At the hearing, the CSO testified that one juror had asked him about the id entity of the men seated behind defense counsel’s table, and he answered that the m en were deputy marshals. Three additional jurors overheard this information or learned it from the other juror. Concluding that the communication did not a ffect Payne’s right to a fair and impartial trial, the district court denied the motion for a mistrial. Payne was sentenced to seventeen months’ imprisonment and fiv e years’ supervised release, and was ordered to pay restitution in the amount of $34,250. We consider Payne’s direct appeal.
II As his first argument, Payne contends that the dist rict court erred in admitting as evidence microfiche copies of the fron t side of bank signature cards. We review the district court’s decision to admit ev idence for an abuse of- 6 -

discretion. United States v. Samaniego , 187 F.3d 1222, 1223 (10th Cir. 1999). We will reverse the district court’s evidentiary ru ling “only upon a definite and firm conviction that the lower court made a clear e rror of judgment or exceeded the bounds of permissible choice in the circumstanc es.” Id. (quotation omitted). Federal Rule of Evidence 1002 provides, in pertinen t part, that “[t]o prove the content of a writing . . . the original writing . . . is required, except as otherwise provided in these rules or by Act of Congress.” Fe d. R. Evid. 1002. Rule 1003, however, provides that “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be un fair to admit the duplicate in lieu of the original.” Fed. R. Evid. 1003. In the instant case, Payne objected to the admissi on of three pieces of evidence: (1) a copy of a signature card for Hawke Productions, Inc. at Bank One; (2) a copy of a signature card for Erudite Ent ertainment, Inc. at Arvest United Bank; and (3) a copy of a signature card forRalph Payne at Arvest United Bank. Noting that the copies did not reveal the reverse s ides of the signature cards, Payne claimed that the reverse of the cards contained pertinent terms and conditions, and that the incomplete nature of the c opies deprived him of the opportunity for complete cross-examination. Overru ling Payne’s objection, the- 7 -

district court held that without further proof, it had no way to know if the reverse sides of the cards were relevant. On appeal, Payne does not claim that there was a ge nuine question as to the authenticity of the original bank records. Althoug h he makes a conclusory statement that admitting the duplicates “was unfair , and deprived him of complete cross-examination,” Payne fails to explain why it w as unfair or why his right to cross-examination was prejudiced by the admission o f incomplete copies in lieu of the originals. (Appellant’s Br. at 9.) Payne f ails to show how the reverse side of the bank signature card is remotely relevant to his case. As the government points out, all pertinent information was located o n the front side of the signature card: the date the account was opened, the name of the account, the type of account, the authorized signatories on the account, and the account number. It appears that the back of the signature card contain ed only additional terms of the deposit agreement that are irrelevant to the issue the cards were admitted to prove, namely that Payne was a signatory on the con tested accounts. Thus, we conclude the district court did not abuse its discr etion in admitting copies of the bank signature cards.
III Payne also asserts that there was insufficient evid ence to support his conviction for two counts of bank fraud and one cou nt of possession of- 8 -

counterfeit securities. “We review the record for sufficiency of the evidence de novo.” United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). “Evidence is sufficient to support a conviction if a reasonab le jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken i n a light most favorable to the government.” Id. (quotation omitted). In our review, we do not wei gh conflicting evidence or consider the credibility of witnesses. United States v. Sanders , 240 F.3d 1279, 1281 (10th Cir. 2001). To obtain a conviction for bank fraud under 18 U.S. C. § 1344(1), the government must prove (1) that Payne knowingly exec uted or attempted to execute a scheme to defraud a financial institution , (2) with the intent to defraud, and (3) that the financial institution was insured by the Federal Deposit Insurance Corporation (“FDIC”). United States v. Rackley , 986 F.2d 1357, 1360–61 (10th Cir. 1993). In order to convict Payne of possessio n of a counterfeit security under 18 U.S.C. § 513(a), the government must prove (1) t hat Payne possessed a counterfeit security, (2) with the intent to deceiv e an organization, and (3) that the organization operates in or its activities affect i nterstate or foreign commerce. 18 U.S.C. § 513(a)–(c). In conclusory fashion, Pay ne contends that the evidence was insufficient to support his convictions under § 1344(1) and § 513(a), but does not identify what aspect of the evidence is insuffi cient.- 9 -

As to Count One, the scheme to defraud Bank One, th ere was ample evidence before the jury that Payne engaged in a sc heme to deposit a worthless check, thereby inflating an existing bank account a nd enabling the withdrawal of funds before the worthless check was returned. Acc ording to testimony at trial, Payne admitted to an FBI agent that he tendered a c heck for $18,000, payable to Hawke Productions, knowing that he did not have the funds to cover the check. After Eric Hawke, the president of Hawke Production s, deposited the check, he immediately withdrew $13,500 from the account. Whe n the $18,000 check was returned to the bank, deposits totaling $30,000 wer e made to the Hawke Productions account, consisting of checks signed byMisty Saterlee. Evidence showed that Payne was aware that Saterlee provided worthless checks to Hawke in return for a fee. Although Payne asserts that t here was no evidence that he ever transacted business on the Hawke Productions a ccount, it is undisputed that he was a co-signer on the Hawke Productions accountand the vice-president of Hawke Productions. Thus, the government provided s ufficient evidence to establish a scheme to defraud. With regard to the intent to defraud, Payne claims that he thought “the $18,000 check on his account . . . would not be dep osited into the Hawke Productions account at Bank One until Eric Hawke gave [him] a corporate check from another account to cover the deposit . . . .” (Appellant’s Br. at 12.) The- 10 -

government explains, however, that there was also t estimony that Payne knew Hawke would deposit the worthless check but thoughtHawke would “use a corporate check from another account to buy time an d to cover Payne’s check.” (Appellee’s Br. at 19.) Thus, intent to defraud wa s established. Moreover, Payne does not dispute that Bank One was insured by FDIC. In reviewing the evidence in the light most favorable to the government, ther efore, we conclude that the combination of various pieces of evidence—circumsta ntial and direct—is sufficient for a reasonable jury to find all the el ements of 18 U.S.C. § 1344(1) with respect to Count One. With respect to Count Two, the scheme to defraud Arvest United Bank, there was also ample evidence to allow a reasonable jury to convict Payne. Testimony at trial established that Payne received a counterfeit check in the amount of $34,785.45, drawn on the account of Horme l Foods Corporation. Along with Karim Muhammad, Payne opened an account at Arvest United with this check. Within the next few days, Payne and Mu hammed returned to the bank and made three withdrawals, in the amounts of $10,0 00, $18,000, and $6,000. That it was Muhammed who actually withdrew the fund s while Payne waited outside does not preclude a reasonable jury from co ncluding that Payne participated in a scheme with the intent to defraud Arvest United. In fact, when summoned by a bank teller to explain the large init ial deposit, Payne lied and- 11 -

stated it was in connection with the State of Oklah oma Food Services. Furthermore, after each withdrawal, Muhammed gave P ayne the majority of the cash. While Payne suggests that there was no evidence that he knew the Hormel check was counterfeit when he received it, a reason able jury certainly could have concluded the contrary, particularly in light of th e following facts: Payne told an FBI agent that he did not know the last names of th e men who gave him the Hormel check, Erudite Entertainment did not provide Hormel with any services, and Payne lied to the teller regarding the source o f the check. Accordingly, the evidence provides sufficient ground for a reasonabl e jury to find intent to defraud. Again, Payne does not contest that Arvest United wa s insured by FDIC. We conclude, therefore, that there was sufficient evid ence to convict Payne of Count
Two. Finally, we conclude that there was sufficient evid ence to sustain a conviction for the third charge, possession of a co unterfeit security. Testimony established that the Hormel check actually bearing number 1182934 was payable to one if its vendors, M&M Supply, in the amount of $123.95. Payne deposited a check with this same number at Arvest United Bank, but it was made payable to Erudite Entertainment, in the amount of $34,785.45. It is thus undisputed that Payne deposited a counterfeit check. Moreover, bec ause evidence established that- 12 -

Payne had intent to defraud Arvest United, as discu ssed above, the intent element of 18 U.S.C. § 513(a) is likewise satisfied. As Payne does not dispute that Arvest United operates in interstate commerce, we conclude that there was sufficient evidence for a reasonable jury to convict Payne of Count Three.
IV Payne’s final argument on appeal is that the distri ct court abused its discretion in denying his motion for a mistrial pre mised on a third-party communication with a juror. He argues that the ext raneous contact between the court security officer (“CSO”) and a juror, where t he officer related the identity of deputy marshals in the courtroom, was so prejudi cial that it denied him the right to a fair trial. Specifically, Payne contend s that the officer’s statement served to highlight for the jury the fact that he w as surrounded by security personnel, and he asserts that “[j]urors naturally presume guilt and dangerousness from the fact that those in authority have determin ed that the defendant must be restrained or is incarcerated.” (Appellant’s Br. at21.) After the jury found Payne guilty on all charges, t he government learned of the communication between the CSO and the juror, an d notified defense counsel. Payne then filed a motion for a mistrial, and the d istrict court held a hearing to determine the extent and nature of the communicatio n. CSO Dave Williams testified that one of the jurors asked him about th e identity of the men seated- 13 -

behind defense counsel’s table. Williams told the juror that the men were deputy marshals and the juror responded, “oh.” (Appellant ’s Br. at 17.) This communication took place when the jury was returnin g to the courtroom following a break, while Williams was holding the d oor open for the jury. The juror confirmed Williams’s testimony and also testi fied that he told a juror seated behind him what he learned from Williams. Two othe r jurors testified that they overheard the CSO identify the marshals, and three other jurors testified that they assumed the men in question were marshals. In a criminal case, any private communication or co ntact with a juror during a trial about a matter pending before the ju ry is deemed presumptively prejudicial. Remmer v. United States , 347 U.S. 227, 229 (1954); United States v. Hornung , 848 F.2d 1040, 1044 (10th Cir. 1988). This presu mption is rebuttable, even if the contact comes to the court’s attention after the jury reaches its verdict, “but the burden rests heavily upon the Government t o establish, after notice to and hearing of the defendant, that such contact wit h the juror was harmless to the defendant.” Hornung , 848 F.2d at 1044 (quoting Remmer , 347 U.S. at 229). We have held that “[a] trial court has broad discretio n in reviewing the effect of extrajudicial information.” Id. It is well-established that “[d]ue process does notrequire a new trial every time a juror has been placed in a potentially compr omising situation.” Id. at 1045- 14 -

(quoting Smith v. Phillips , 455 U.S. 209, 217 (1982)). Upon learning that extrinsic information may have tainted the trial, t he proper remedy is for the district court to hold a hearing to determine the c ircumstances and content of the contact, and to discern the prejudice, if any, to t he defendant. Id. at 1045. The court is forbidden from inquiring about the subject ive effect of the contact on the juror’s deliberations; rather, it must utilize an o bjective standard in assessing the possibility of prejudice to the defendant. Id. ; see also Fed. R. Evid. 606(b) (providing that “[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statementoccurring during the course of the jury’s deliberations or to the effect of anythi ng upon that or any other juror’s mind or emotions as influencing the juror to assentto or dissent from the verdict”). In assessing the possibility of prejudi ce, the court should review “the entire record, analyzing the substance of the extri nsic evidence, and comparing it to that information of which the jurors were proper ly aware.” Hornung , 848 F.2d at 1045. We review a district court’s denial of mi strial for abuse of discretion. United States v. Begay , 144 F.3d 1336, 1339 (10th Cir. 1998). In the instant case, the district court conducted ahearing to determine the nature of the contact and its possible prejudicial effect. Utilizing the proper objective standard, the court acknowledged that the communication between CSO Williams and the juror is deemed presumptively prej udicial to Payne, but went on- 15 -

to conclude that the government met its burden in e stablishing that the contact was harmless. Given the overwhelming evidence of P ayne’s guilt, “the extrinsic information regarding the bare identity of the depu ty marshals was harmless.” (1 R. Doc. 62 at 5–6.) After carefully reviewing the record, we agree with the district court that any prejudice to Payne’s trial was harmless. Payne attempts to analogize the present situation t o one in which a defendant appears before the jury in handcuffs, sha ckles, or prison attire. See Estelle v. Williams , 425 U.S. 501, 504–05 (1976) (holding that a state cannot compel a defendant to stand trial in identifiable p rison garb because “the constant reminder of the accused’s condition implicit in suc h distinctive, identifiable attire may affect a juror’s judgment”). Payne argues thatthe presence of known security guards (i.e., deputy marshals) “served as a constant reminder to [his] jury that he was in custody and needed to be continuousl y guarded” and inflamed his “dangerousness and guilt” in the eyes of the jury. (Appellant’s Br. at 22 (quotation omitted).) In our view, Estelle is not implicated in the instant case because ther e is no allegation that the government compelled Payne to appear in prison clothes during trial or in any attire related to his status as a p risoner. To the extent Payne argues that the presence of marshals in the courtroom prej udiced his trial because it suggested his guilt, the Supreme Court has held that “the conspicuous, or at least- 16 -

noticeable, deployment of security personnel in a c ourtroom during trial” is not inherently prejudicial. Holbrook v. Flynn , 475 U.S. 560, 568–69 (1986) (“While shackling and prison clothes are unmistakable indic ations of the need to separate a defendant from the community at large, the presen ce of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable.”). There is not an “unacceptable risk of prejudice” inherent in jurors knowing of the presence of marshals in the courtroo m, id. at 571, and Payne has presented us with nothing that would lead us to rea ch a different conclusion, such as an allegation that the marshals were heavily arm ed. In any event, jurors will likely take the presence of armed guards for grante d “so long as their numbers or weaponry do not suggest official concern or harm.” Id. at 569; see also United States v. Lampley , 127 F.3d 1231, 1237 (10th Cir. 1997) (holding that the presence of unarmed and plain-clothes security offi cers in the courtroom did not prejudice defendants’ right to a fair trial). In sum, we agree with the district court that, give n the evidence of Payne’s guilt, the extraneous communication was harmless an d did not prejudice Payne’s right to a fair trial. Thus, the district court di d not abuse its discretion in denying Payne’s motion for a mistrial.- 17 - IV For the foregoing reasons, we AFFIRM Payne’s conviction.

ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge