
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1229                                    UNITED STATES,                                      Appellee,                                          v.                                 STELIOS M. VAVLITIS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                              Torruella, Circuit Judge,                                         _____________                          and Bownes, Senior Circuit Judge.                                      ____________________                                 ____________________            Robert A. George on brief for appellant.            ________________            Jonathan L.  Kotlier, Assistant  United  States  Attorney, and  A.            ____________________                                            __        John Pappalardo, United States Attorney on brief for appellee.        _______________                                 ____________________                                  November 19, 1993                                 ____________________                      BOWNES, Senior Circuit Judge.  Defendant-appellant,                      BOWNES, Senior Circuit Judge.                              ____________________            Stelios M. Vavlitis, was convicted of bank fraud, 18 U.S.C.              1344(1),  for  kiting  checks  and  withdrawing   money  from            accounts bearing insufficient  funds.  We consider  on appeal            whether the district  court erred by dismissing  midtrial the            superseding  indictment   on  which  Vavlitis  had  not  been            arraigned, and  by  allowing the  trial  to continue  on  the            original indictment.  We also must determine whether the jury            instruction on reasonable  doubt was  erroneous, and  whether            there  was sufficient proof of fraudulent intent.  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      In January 1990, Vavlitis maintained seven checking            accounts, including six commercial  accounts and one personal            account, at two  federally-insured banks,  Atlantic Bank  and            Trust Company (Atlantic Bank) and  Bank of New England.  Four            of the accounts were with  Atlantic Bank; Bank of New England            held  the remainder.  Vavlitis was an authorized signatory on            each  of these  accounts.   Atlantic Bank's  practice at  all            relevant times was  to credit Vavlitis's accounts  with funds            equal to the face value of the checks he deposited, without a            delay to  verify that  these checks would  be honored  by the            banks  on which  they were  drawn.   This practice  created a            "float," a period of one or more days  that would pass before                                         -2-                                          2            a deposited check  credited to an account would  be processed            and  presented for  payment  from the  account  of the  check            writer--Vavlitis.                       From January  1990 until  May 1990  when the  banks            froze his  accounts, Vavlitis used  the float to buoy  up the            balances  in his  accounts  by  exchanging  checks  drawn  on            insufficient  funds between  Atlantic Bank  and  Bank of  New            England.  He withdrew money and wrote checks to third parties            against funds he did not actually  have, despite his inflated            balances.   The result was  that when his four  Atlantic Bank            accounts  were frozen  on May  14,  1990, there  was a  total            overdraft  of $1,615,968.92.    When  Bank  of  New  England,            suspecting check  kiting, closed Vavlitis's three accounts in            May   1990,  there  was   a  combined  positive   balance  of            $683,292.63.                      On  February 19,  1991, a  grand  jury returned  an            indictment  charging Vavlitis with  one count of  bank fraud.            The indictment  alleged that  between January  and May  1990,            Vavlitis orchestrated  a check  kiting  scheme by  depositing            checks written  on insufficient  funds into  the accounts  he            controlled at  Atlantic Bank  and Bank of  New England.   The            charging  paragraph  of   the  indictment,  paragraph  seven,            alleged  that  this   scheme  allowed   Vavlitis  to   obtain            "$1,615,968.00, more or  less, owned by and under the custody            and  control  of  Atlantic  Bank and  Bank  of  New England."                                         -3-                                          3            Paragraph nine alleged  that as a result of  the check kiting            scheme,  "Atlantic Bank suffered a loss of $1,615,968.00 more            or less, minus $638,315.00 in funds recouped from the Bank of                     ____________________________________________________            New England checking accounts maintained by defendant STELIOS            _____________________________________________________________            M. VAVLITIS, for a net  ultimate loss of $932,653.00, more or            _____________________________________________________________            less."   (Emphasis added.)   Vavlitis  was arraigned on  this            ____            indictment on March 5, 1991.                      On  March 12,  1991,  the  grand  jury  returned  a            superseding  indictment,  identical in  all  respects  to the            original  indictment, except for  paragraph nine.   Paragraph            nine of the superseding indictment stated that as a result of            the check kiting  scheme, "Atlantic Bank  suffered a loss  of            $1,615,968.00 more or less."  The superseding indictment thus            alleged the total loss resulting from the scheme, but did not            describe the "net ultimate loss."  Because of an oversight by            the  prosecutor,  Vavlitis   was  never   arraigned  on   the            superseding indictment.                        In  her opening  statement  in Vavlitis's  trial on            November  30, 1992, the prosecutor referred to the indictment            and  stated  that Vavlitis  "left  the  banks with  the  $1.6            million  loss."    She  did  not  use  the  term "superseding            indictment."  Defense  counsel moved for a  mistrial claiming            that he  had no notice  of the  superseding indictment,1  and                                            ____________________            1.  On September 6,  1991, more than  one year before  trial,            the   government  served  defense   counsel  with  its  trial            memorandum,  which stated:    "Vavlitis  is  charged  in  the                                         -4-                                          4            that his  client had  not been arraigned  on it.   The  trial            court denied the motion, pending further inquiry, and allowed            the prosecution to call four witnesses from the two banks.                        After the first day of  trial, the court found that            Vavlitis  had   not  been   arraigned   on  the   superseding            indictment.   The court  granted the prosecution's  motion to            dismiss the superseding  indictment and allowed the  trial to            continue  on  the  original indictment.    Defense  counsel's            renewed motion  for mistrial  and motion  for dismissal  were            denied.   The trial  court subsequently denied  a motion  for            judgment of acquittal, and the  jury found Vavlitis guilty of            bank fraud.                                         II.                                         II.                                         ___            A.   Dismissal of Indictment, Double Jeopardy, Variance,  and            A.   Dismissal of Indictment, Double Jeopardy, Variance,  and                 ________________________________________________________                 Constructive Amendment                 Constructive Amendment                 ______________________                      Vavlitis  argues that the midtrial dismissal of the            superseding indictment prevented  any further prosecution  on            the original  indictment, and  that the  continuation of  the            trial on the original indictment violated the Double Jeopardy            Clause.  We disagree.                      It is  clear  that the  grand  jury's return  of  a            superseding indictment does not void the original indictment.            See United  States v.  Friedman, 649 F.2d  199, 202  (3d Cir.            ___ ______________     ________            1981); United States  v. Holm, 550 F.2d 568,  569 (9th Cir.),                   _____________     ____                                            ____________________            Superseding Indictment with  one count of bank fraud . . . ."            ______________________            (Emphasis added.)                                         -5-                                          5            cert. denied, 434  U.S. 856 (1977).  A  defendant may use the            _____ ______            Double Jeopardy Clause to prevent  reprosecution following an            acquittal  or conviction on a superseding indictment, but may            not   rely  on  the  notion  that  a  superseding  indictment            instantaneously  nullifies  the  original  indictment.    See                                                                      ___            United States  v. Bowen, 946  F.2d 734, 736 (10th  Cir. 1991)            _____________     _____            (finding  "no  authority  which  supports   .  .  .  that   a            superseding  indictment zaps an earlier indictment to the end            that the earlier indictment somehow vanishes into thin air").            Both  indictments in  this  case  remained  valid  until  the            district court granted the government's motion to dismiss the            superseding indictment.                      Vavlitis also contends  that the midtrial dismissal            of the  superseding indictment prevented  further prosecution            for the same offense charged in the original indictment.  The            aspect of the Double Jeopardy  Clause at issue in  Vavlitis's            assertion is the protection against reprosecution following a            favorable   termination   of  proceedings   midtrial.     The            "historical" underpinning of  the double jeopardy prohibition            is that                       "the  State  with all  its  resources and                      power  should  not  be  allowed  to  make                      repeated   attempts    to   convict    an                      individual   for   an   alleged  offense,                      thereby subjecting him  to embarrassment,                      expense and ordeal  and compelling him to                      live in a continuing state of anxiety and                      insecurity,  as  well  as  enhancing  the                      possibility that even  though innocent he                      may be found guilty."                                           -6-                                          6            United States v. Scott, 437 U.S. 82, 87 (1978) (quoting Green            _____________    _____                                  _____            v. United States, 355 U.S.  184, 187-88 (1957)).  One purpose               _____________            of the  prohibition  on reprosecution  following  a  midtrial            ruling  that ends the case is to protect the "valued right of            a  defendant to  have  his  [or her]  trial  completed" by  a            particular tribunal.  Id. at  92; United States v. Govro, 833                                  ___         _____________    _____            F.2d 135, 137 (9th Cir. 1987); United States ex rel. Young v.                                           ___________________________            Lane, 768  F.2d 834, 838  (7th Cir.), cert. denied,  474 U.S.            ____                                  _____ ______            951 (1985).                        Given  these  principles,  we  find  no   merit  in            Vavlitis's double  jeopardy argument.   First, Vavlitis fails            to show  a second attachment of jeopardy.   Jeopardy attached            when the jury was impanelled  for the bank fraud prosecution.            See Crist v.  Bretz, 437 U.S. 28, 37-38 (1978).  There was no            ___ _____     _____            impanelment of a  second jury and no second  verdict, thus no            relinquishment  of the valued right to a particular tribunal,            no enhancement of the risk  of an erroneous verdict, and none            of the expense or the ordeal of a subsequent prosecution.                      Even if we  assume that the further  prosecution of            Vavlitis on the original  indictment following the  dismissal            of the  superseding indictment constituted a  reattachment of            jeopardy, we would not find a double jeopardy violation.  The            district court  dismissed the superseding  indictment without            resolving   any  factual  issue  in  favor  of  the  accused.            Although  the trial could  have proceeded on  the superseding                                         -7-                                          7            indictment,  see United States  v. Boruff, 909  F.2d 111, 118                         ___ _____________     ______            (5th Cir.  1990), cert. denied,  111 S. Ct. 1620  (1991); see                              _____ ______                            ___            also  Garland  v.  Washington, 232  U.S.  642,  644-46 (1914)            ____  _______      __________            (affirming  conviction despite  lack  of arraignment  because            accused, who had  notice of charges and  adequate opportunity            to  prepare  defense,  was not  deprived  of  any substantial            right),  the court  dismissed the  superseding indictment  so            that Vavlitis  would be tried  on the indictment on  which he            had  been arraigned.   We note  that if  the trial  court had            dismissed the  case,  as Vavlitis  requested, the  government            could  have  appealed  such a  ruling  without  violating the            Double  Jeopardy  Clause.    See  Scott,  437  U.S.  at 98-99                                         ___  _____            (holding that defendant who obtained dismissal of proceedings            on grounds unrelated to factual guilt or innocence suffers no            injury under  Double Jeopardy Clause if  government appeals).            A  fortiori, the continuation  of the prosecution  before the            ___________            same   fact-finder  did  not   violate  the  double  jeopardy            prohibition.                      Vavlitis's  next argument  is that  the indictments            contained  materially   different  allegations,  so   that  a            variance of proof  and an improper  amendment of the  charges            resulted  from  the  midtrial  substitution,  and  that  this            unfairly  prejudiced the  defense.    We  note  that  defense            counsel failed  to  specifically raise  these  issues  below.            Assuming these issues were preserved, we find no error.                                         -8-                                          8                      In  the first place, there was no material variance            of proof.  A  variance occurs when the proof differs from the            allegations in the  indictment.  United  States v. Fisher,  3                                             ______________    ______            F.3d  456, 462 (1st Cir.  1993).  A  variance is material and            reversible  only   if  it   has   affected  the   defendant's            "'substantial  rights'":  to be  informed of the charges; and            to prevent a second prosecution for the same offense.  Id. at                                                                   ___            463 (quoting  United States  v. Tormos-Vega,  959 F.2d  1103,                          _____________     ___________            1115 (1st Cir.), cert. denied, 113 S. Ct. 191-92 (1992)). The                             _____ ______            charging   paragraphs  of   the   superseding  and   original            indictments in this case alleged that the check kiting scheme            enabled Vavlitis to obtain "$1,615,968.00 more or less, owned            by and  under the  custody and control  of Atlantic  Bank and            Bank  of New  England."   The  original indictment,  on which            Vavlitis was arraigned and convicted, alleged a "net ultimate            loss" of  $932,653.00.   The  evidence  showed a  pattern  of            deposits  and withdrawals between  Vavlitis's accounts in the            two  banks, so  that on the  day his accounts  were frozen, a            total overdraft of $1,615,968.92 existed in his Atlantic Bank            accounts, while  Bank of  New England  registered a  positive            balance  of  $683,292.63.    The  proof  comported  with  the            charges.                      Vavlitis's   argument   that   the   charges   were            improperly amended is  also unavailing.  An  amendment occurs            when the charging terms of  the indictment are altered  after                                         -9-                                          9            the grand jury  has last passed upon them.   United States v.                                                         _____________            Dunn, 758 F.2d  30, 35 (1st Cir. 1985).   Midtrial amendments            ____            are deemed prejudicial per se  for the following reasons:  to                                   ______            preserve the right of the person accused of an infamous crime            to  have a  grand  jury  vote on  an  indictment, to  prevent            reprosecution for the  same offense, and to protect the right            of  the accused  to be informed  of the charges.   See United                                                               ___ ______            States v.  Kelly, 722  F.2d 873, 876  (1st Cir.  1983), cert.            ______     _____                                        _____            denied, 465 U.S.  1070 (1984).   Although  the trial  court's            ______            substitution  of an indictment alleging a "net ultimate loss"            for an indictment alleging the  total loss suffered by one of            the banks literally  altered one of  the allegations, it  did            not  constitute an  amendment of  the  grand jury's  charges.            Both  indictments  accurately  reflected  the  grand   jury's            charges.   There is  ample evidence  to support the  district            court's  finding that  Vavlitis was  "well  informed" of  the            charges  in the  indictment  on which  he  was arraigned  and            ultimately convicted.                        Furthermore, the record does not support Vavlitis's            argument that the midtrial  exchange of indictments  unfairly            prejudiced his  defense.  Vavlitis had been  arraigned on the            indictment on which  he was convicted and  had an opportunity            to prepare a defense based on it.  Only paragraph nine of the            superseding indictment differed from the original indictment,            and  only insofar  as  the  superseding  indictment  did  not                                         -10-                                          10            describe the "net  ultimate loss" resulting from  the scheme.            On the only day of  the trial when the superseding indictment            was  effective, defense counsel said in his opening statement            that the  banks had recouped  money.  He  also cross-examined            witnesses to  elicit that Bank  of New England  actually held            funds in Vavlitis's accounts in May 1990.  At  no time during            the  trial did the  jury hear  that a  superseding indictment            existed.   The prosecutor's  opening statement  that Vavlitis            "left  the banks  with the  $1.6  million loss"  was just  as            consistent  with the evidence and with the charging paragraph            of the  original indictment, as  it was with  the superseding            indictment.                         There is thus no  support for Vavlitis's  arguments            claiming  a double jeopardy  violation, a variance  of proof,            and a prejudicial amendment of the charges.  We hold that the            district  court did  not err  in  dismissing the  superseding            indictment in this case, and in allowing the trial to proceed            on  the  original  indictment,  following  defense  counsel's            objection that  his  client had  not  been arraigned  on  the            superseding indictment.            B.  Reasonable Doubt Instruction            B.  Reasonable Doubt Instruction                ____________________________                      Vavlitis's next  argument is  that the  trial court            provided an  erroneous jury  instruction defining  reasonable            doubt.  The jury instruction on reasonable doubt stated:                            It   is   not  required   that   the                      government   prove   guilt   beyond   all                                         -11-                                          11                      possible  doubt,  the   test  is  one  of                      reasonable doubt.  A  reasonable doubt is                      a doubt  based  upon  reason  and  common                      sense.     It  does  not  mean  that  the                      government has an obligation to prove the                      charge in  this count  to an  absolute or                      mathematical certainty.   Proof  beyond a                      reasonable doubt does  not mean proof  to                      the  degree of  certainty  that you  have                      that the sun will rise tomorrow or if you                      add  five and five you  will get ten.  It                                                             __                      does not mean the doubt  in the mind of a                      _________________________________________                      juror  who  is  looking for  a  doubt  or                      _________________________________________                      looking   for   an  excuse   to   acquit,                      ________________________________________                      reasonable doubt  means the doubt  in the                      mind of a reasonable juror who is seeking                      the truth.  It is a doubt based on reason                      and common sense.                           The test is, are you satisfied that,                      acting as reasonable persons and applying                      your  reasoning  to the  evidence  before                      you, you arrive at  a conclusion that the                      offense as charged has  been committed by                      the defendant,  and are you  so satisfied                      of  that   fact  as  to  leave  no  other                      reasonable      conclusion      possible.                      Reasonable doubt may  arise because there                      is simply not  enough evidence or because                      you do  not accept the evidence  that was                      offered.   It may be that the evidence is                      susceptible     to     one     of     two                      interpretations, one favoring  guilt, one                      favoring nonguilt.  If that is  the case,                      the defendant is  entitled to the benefit                      of  the  interpretation that  favors  not                      guilty.   The jury  will remember  that a                      defendant  is never  to  be convicted  on                      mere suspicion or conjecture.  The burden                      is always  upon the prosecution  to prove                      guilt  beyond a  reasonable doubt.   This                      burden never shifts  to a defendant,  for                      the law never imposes upon a defendant in                      a  criminal case  the burden  or duty  of                      calling  any witnesses  or producing  any                      evidence.            (Emphasis added.)                                         -12-                                          12                      Vavlitis avers that the instruction that reasonable            doubt is not "the doubt in the mind of a juror who is looking            for  a doubt or  looking for  an excuse  to acquit"  may have            reduced  the  government's  burden of  proof.    According to            Vavlitis's brief, the instruction "almost urges the jurors to            look askance at any juror" viewing the government's case with            skepticism, and  it  may have  enabled some  jurors to  "brow            beat" any others who were inclined to acquit.                        Vavlitis did not make a specific objection at trial            to   this  aspect  of   the  reasonable   doubt  instruction.            Consequently, we review the instruction only for plain error.            See United  States v.  Colon-Pagan, 1 F.3d  80, 81  (1st Cir.            ___ ______________     ___________            1993); United States v. Campbell, 874 F.2d 838, 841 (1st Cir.                   _____________    ________            1989).  We find no such error.                        Considering the propriety  of a single  instruction            on  appeal, we  evaluate the  challenged  instruction in  the            context  of  the  overall  charge.    See  United  States  v.                                                  ___  ______________            DeVincent, 632 F.2d  147, 152 (1st  Cir.), cert. denied,  449            _________                                  _____ ______            U.S.  986  (1980).   We  keep  in  mind that  "[t]hat  which,            standing  alone, may fall short of perfection may nonetheless            be tolerable  in the  context  of a  charge which  adequately            instructs the jury on the standard it is to apply."  Id.                                                                   ___                      Although cluttered  with unnecessary  language, the            reasonable doubt instruction in this case  neither undermined            the  government's burden of proof, nor caused jurors inclined                                         -13-                                          13            to   acquit  to  be   "brow  beat[en]."     The  trial  court            specifically  instructed  the  jurors  "to consult  with  one            another  and  to  deliberate  with  a  view  to  reaching  an            agreement,  if you  can do  so  without violating  individual            judgment," but never to surrender an "honest conviction . . .            solely  because  of  the  opinion  of  your  fellow  jurors."            Instead, the  challenged instruction  addresses the  state of            mind  of the  jurors.   It  exhorts the  jurors  to view  the            evidence rationally, not  to look  for an  excuse to  acquit,            because  such a mindset would not produce a reasonable doubt,            but to view the  evidence with the intent to seek  the truth.            "Instructions which thus urge that the jury's decision should            be the product  of a rational thought  process, while perhaps            'unwisely  emphatic,' have  been upheld  in the  overwhelming            majority   of  cases.    We   cannot  say  that  the  present            formulation  constitutes  reversible  error."    Id.  at  153                                                             ___            (citations omitted);  see also Watkins v. Ponte, 987 F.2d 27,                                  ________ _______    _____            32 (1st Cir. 1993) (upholding a similar jury instruction).                      Vavlitis also  argues on  appeal an  issue that  he            raised at trial,  that the reasonable doubt  charge is flawed            because it  did not  define  reasonable doubt  as that  which            would cause a juror to "hesitate to act on the most important            of  affairs."   "This Court  has  emphasized that  reasonable            doubt does not require a specific definition."  United States                                                            _____________            v.  O'Brien, 972 F.2d  12, 16 (1st  Cir. 1992).   In fact, we                _______                                         -14-                                          14            have  criticized the use  of "hesitate to  act" instructions,            and  we  have  held  that  the failure  to  include  such  an            instruction is not reversible error.  See id. at 15-16.                                                    ___ ___                      Because  we  recognize  that  we  must  "tolerate a            reasonable range of expression" unless we impose pattern jury            instructions, Watkins, 987 F.2d at 32 (quotation omitted), we                          _______            hold that  the trial court's instruction  defining reasonable            doubt  was not  erroneous.    We  note,  however,  that  this            instruction  contains  language  that  is unnecessary,  could            confuse  the   jury,   and  provides   fertile  grounds   for            objections.  Reasonable  doubt is a fundamental  concept that            does not easily lend itself to refinement or definition.  See                                                                      ___            United States v. Olmstead, 832 F.2d 642, 645 (1st Cir. 1987),            _____________    ________            cert. denied, 486 U.S. 1009 (1988).             _____ ______            C.  Evidence of Fraudulent Intent            C.  Evidence of Fraudulent Intent                _____________________________                      The final issue  on appeal is whether  the district            court  erred in  denying Vavlitis's  motion  for judgment  of            acquittal at the  conclusion of the  government's case.   The            motion  for  judgment  of acquittal  alleged  that  there was            insufficient  evidence of  fraudulent  intent  to  support  a            verdict of guilty.                      In reviewing a  denial of a motion  for judgment of            acquittal,  we consider the evidence in  a light congenial to            the government.   United States v. Victoria Peguero, 920 F.2d                              _____________    ________________            77, 86 (1st Cir. 1990), cert. denied, 111 S. Ct. 2053 (1991).                                    _____ ______                                         -15-                                          15            The evidence  is sufficient  if "any reasonable  juror .  . .                                             ___            could have found the essential elements of the crime beyond a            reasonable  doubt."  United  States v. Rodriguez  Cortes, 949                                 ______________    _________________            F.2d  532, 543  (1st Cir.  1991) (emphasis  in the  original)            (quotation omitted).  "The government need not disprove every            reasonable  hypothesis of innocence if  the record as a whole            supports a verdict of guilt  beyond a reasonable doubt."  Id.                                                                      ___                      Satisfaction  of the mens  rea element of  the bank                                           ____  ___            fraud  statute  requires  proof  that  the   defendant  acted            knowingly  and with  intent  to  defraud.   See  18 U.S.C.                                                           ___            1344(1); United States  v. Rodriguez-Alvarado, 952  F.2d 586,                     _____________     __________________            589  (1st Cir. 1991).  To act  with "intent to defraud" means            to act "with the specific intent to deceive  or cheat for the            purpose of either  causing some financial loss to another, or            bringing  about  some  financial gain  to  oneself."   United                                                                   ______            States  v. Cloud,  872 F.2d  846, 852  n.6 (9th  Cir.), cert.            ______     _____                                        _____            denied,  110 S.  Ct. 561  (1989).   Fraudulent intent  may be            ______            established  by  circumstantial  evidence and  by  reasonable            inferences  from  facts  and situations.    United  States v.                                                        ______________            Celesia,  945  F.2d  756,  759  (4th  Cir.  1991);  see  also            _______                                             _________            Rodriguez-Alvarado, 952 F.2d at 589.             __________________                      The   record  in   this   case  contains   evidence            generating a reasonable inference of knowledge and fraudulent            intent.  The evidence that Vavlitis was a business person who                                         -16-                                          16            had borrowed  more  than a  million  dollars from  the  banks            indicates that he was generally knowledgeable about financial            matters and banking.  Vavlitis set up the commercial accounts            described  in the  indictment  ostensibly to  serve  separate            business interests; presumably, transactions between accounts            should not have been frequent.  In a two  month period within            the time frame alleged in the indictment, March through April            1990, Vavlitis  deposited over  450 checks  from  one of  the            seven  accounts  into another  of the  seven accounts.   This            means  that on  average, Vavlitis  deposited  ten checks  per            banking  day,  drawn from  one  of  the seven  accounts  into            another  of  these  accounts, resulting  in  the  movement of            approximately $69 million.  According  to a witness from Bank            of  New  England,  two  of  these  accounts  related to  land            holdings for  which  one  would expect  to  see  very  little            account activity.   Because  Vavlitis wrote  checks to  third            parties while he was making deposits, the deficit between the            amount  of funds  he actually  had  and the  amount of  funds            credited upon each deposit increased each day.  Day after day            in this  two month period,  there were insufficient  funds in            these   accounts  to   cover  the   checks  Vavlitis   wrote,            notwithstanding  the  existence  of  any  other  accounts  or            secured  loans Vavlitis  may have  maintained  at the  banks.            Virtually all deposits (99.8%) into these seven accounts were            from one of the other  seven accounts, rather than from third                                         -17-                                          17            party  sources.   A  reasonable  juror  could  infer that  no            legitimate business practice accounted for this pattern.                        An expert witness, FBI Special Agent Daniel Dubree,            described a  prototypical check  kiting scheme  to the  jury,            analyzed the activity in the seven accounts, and  opined that            Vavlitis's  frenetic  deposits  and  withdrawals  constituted            check  kiting.   He explained  that the  Bank of  New England            accounts  served as intermediary  accounts to create  a float            period for checks circulating in and out of the Atlantic Bank            accounts.    For   this  reason,  the  check   kiting  scheme            persisted,  even though Bank of New England, suspecting check            kiting, notified Vavlitis in late January 1990 that it  would            no  longer honor  checks written  against  uncollected funds;            Atlantic Bank  continued to credit  his accounts on  the date            checks were deposited  until the accounts were frozen and the            overdrafts  exceeded  $1.6 million.    Dubree  testified that            Vavlitis's transactions followed a pattern of  transfers from            one  account  into  another  specified  account,  that   this            appeared to  be no accident, and  that it would have  made it            easier for Vavlitis to track how much he needed to deposit to            cover checks he had already written.                        We  acknowledge that  "[t]he  mere  existence of  a            check kiting scheme does  not as a  matter of law imply"  the            specific  intent  necessary  for  a  bank  fraud  conviction.            Rodriguez-Alvarado,  952  F.2d  at  589.    But   considering            __________________                                         -18-                                          18            Vavlitis's business  experience, the notice he  received from            Bank of New England,  the size of the Atlantic Bank loss, the            intricacy and sophistication  of the scheme, and  the absence            of  a legitimate purpose  for the transactions,  a reasonable            juror could conclude  that Vavlitis acted with  the requisite            knowledge  and specific  intent to  use the  float  period to            inflate his  account balances and  to defraud the banks.   We            hold that the  trial court properly denied  Vavlitis's motion            for judgment of acquittal.    Therefore,           Vavlitis's            conviction is,                        Affirmed.                      Affirmed.                      _________                                         -19-                                          19
