* 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. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### FEB 16 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. GEORGE VENTURA, Defendant-Appellee. No. 98-3249 (D.C. No. 98-20004-01) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.
Pursuant to 18 U.S.C. § 3731, the government appeal s the district court’s order granting defendant-appellee’s motion for judg ment of acquittal under Fed. R. Crim. P. 29. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.- 2 - BACKGROUND Defendant-appellee George Ventura was charged with a single count of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371 and 1344(1), and five substantive counts of bank fraud, in violation of 18 U.S.C. § 1344(1), arising from a series of transactions between Ventu ra and Commercial State Bank (“CSB”), a federally-insured financial institution in Bonner Springs, Kansas. Ventura operated Mid-America Exotic Auto Sales, Inc . (“Mid-America”), of Overland Park, Kansas. Mid-America purchased an d sold predominantly used luxury/exotic automobiles. To finance its purchase s of automobiles for resale, Mid-America used a $750,000 line of credit establis hed by Ventura at CSB. Ventura’s line of credit was secured by the vehicle s financed through the bank, parcels of real estate owned by Ventura, and the pe rsonal guarantees of Ventura and his wife. The indictment alleged that Ventura and Robert Geek ie, who operated a similar automobile business called Midwest Autohaus , Inc. (“Midwest”) of Manteno, Illinois, engaged in a fraudulent scheme w hereby Ventura and Geekie agreed to use Ventura’s line of credit at CSB to fi nance the purchases of cars by Geekie’s business. In essence, the government char ged that, between January 1, 1994, and May 17, 1995, unbeknownst to CSB, over 50 0 transactions took place between Mid-America and Midwest, whereby Ventura “l oaned” CSB funds to- 3 -

Geekie’s company to finance Midwest’s purchases. G eekie’s company then repaid Ventura for these loans and Ventura in turn repaid CSB. Ventura maintained that Mid-America did not loan funds to M idwest, but rather, MidAmerica actually purchased each vehicle from Midwes t, and then resold it to Midwest shortly thereafter, such that the vehicles were basically consigned from Mid-America to Midwest. A jury acquitted Ventura on the conspiracy count, b ut convicted him on the five substantive counts of bank fraud. The distric t court subsequently granted the defendant’s motion for acquittal pursuant to Fed. R . Crim. P. 29. The government now appeals. DISCUSSION We review a district court decision setting aside ajury verdict and granting a judgment of acquittal de novo ; such a decision is entitled to no deference on appeal. See United States v. Santistevan , 39 F.3d 250, 255 (10th Cir. 1994). The relevant inquiry is “whether, taken in the light mo st favorable to the government, there is substantial evidence from which a reasonab le jury might properly find the defendant guilty beyond a reasonable doubt.” UnitedStates v. Johnson , 911 F.2d 1394, 1399 (10th Cir. 1990); see also Santistevan , 39 F.3d at 255; United States v. White , 673 F.2d 299, 301 (10th Cir. 1982).1 18 U.S.C. § 1344 provides in relevant part:

Whoever knowingly executes, or attempts to execute, a scheme or artifice– (1) to defraud a financial institution; shall be fined not more than $1,000,000 or imprison ed not more than 30 years, or both.

2 The parties stipulated to the fact that the financi al institution involved was insured by the FDIC. - 4 - In order to convict Ventura of bank fraud under 18 U.S.C. § 1344(1) 1 , the government was required to prove: (1) that Ventura knowingly executed or attempted to execute a scheme to defraud a federall y insured financial institution; and (2) that Ventura did so with the intent to defr aud. 2See United States v. Rackley , 986 F.2d 1357, 1360 (10th Cir. 1993). After careful review of the parties’ briefs and the record before us, we are convinced that, even viewing the evidence in the li ght most favorable to the government and drawing all reasonable inferences inthe government’s favor, no reasonable jury could have found beyond a reasonabl e doubt that Ventura executed or attempted to execute, a scheme to defra ud CSB, or that Ventura acted with specific intent to defraud the bank. Accordin gly, we AFFIRM the judgment of acquittal based on insufficient evidence to sust ain a bank fraud conviction for substantially the same reasons set forth in the dis trict court’s Memorandum and Order of August 13, 1998.- 5 -

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge