                     United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT
                            ________________

                            No. 96-2923/3083
                            ________________

United States of America,           *
                                    *
           Plaintiff - Appellee,    *
                                    *   On appeal from the United States
     v.                             *   District Court for the Southern
                                    *                               District
of Iowa.
Robert J. Darrah,                   *
                                    *
           Defendant - Appellant.   *

                            ________________

                              Nos. 96-2924
                            ________________

United States of America,          *
                                   *
           Plaintiff - Appellee,   *
                                   * On appeal from the United States
      v.                           * District Court for the Southern
                                   * District of Iowa.
Saundra L. Darrah,                 *
                                   *
           Defendant - Appellant. *
                            ________________

                            Submitted: January 15, 1997
                                Filed:   July 14, 1997
                            ________________
Before WOLLMAN and FLOYD R. GIBSON, Circuit Judges, and MONTGOMERY,1
     District Judge.
                          ________________

FLOYD R. GIBSON, Circuit Judge.

      Appellant Robert Darrah challenges a jury's finding that he made
false statements to a lending institution, see 18 U.S.C. § 1014 (1994),
misapplied bank funds, see id. § 656, engaged in a monetary transaction
involving property unlawfully derived from the misapplication of bank
funds, see id. § 1957, and made a false statement to an agency of the
United States, see id. § 1001. Appellant Saundra Darrah, Robert's spouse,
similarly challenges her conviction for making a false statement to an
agency of the United States. See id.

I.   BACKGROUND

    Robert Darrah was a Certified Public Accountant
("CPA") whose company, Darrah & Company, serviced tax
returns and managed investments in Council Bluffs, Iowa.
During the 1980s and early 1990s, Robert became directly
involved with a bank holding company called Missouri
Valley Financial Services ("MVFS"), which owned stock in
several banks in and around Council Bluffs. In the mid-
1980s, MVFS received a bank stock loan from Norwest Bank
("Norwest") in Des Moines for the purpose of purchasing
stock in Peoples National Bank ("PNB") in Council Bluffs.
The shareholders of MVFS, including Robert, personally
guaranteed the bank stock loan. At the time, Robert was
the president of MVFS and consequently controlled the
overall operations of the holding company and the various
banks   it   owned,   including   PNB.      One  of   his
responsibilities was to make loan payments to Norwest on
behalf of MVFS.



     1
        The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota, sitting by designation.

                                   -2-
    In 1987, Darrah & Company began preparing tax returns
for Dianna Smith.    When Smith retired in 1990, Robert
offered to help her invest her retirement funds which
totaled just over $400,000.     Smith stressed to Robert
that she desired to place the bulk of her funds in low-
risk investments.     After discussing various options,
Smith requested that Robert invest $300,000 in an
annuity, $100,000 in growth funds, and about $5,000 in a
"holding company fund."    To facilitate the process of
transferring the funds to the desired investments, Smith,
upon Robert's request, signed several money transfer
forms in blank and wrote a check to PNB for the entire
amount of her retirement fund.      Linda Hack, the IRA
supervisor at PNB, opened an IRA in Smith's name.
Because Smith requested that Robert supply her with
minimal paperwork, Hack structured the account so that
Robert, rather than Smith, received the statements and
correspondence regarding the account.     Therefore, from
the time she turned her money over to Darrah in 1990
until early 1994, the only information Smith received
pertained to her growth fund investments.

    Howard Stoffa, a special agent with the criminal
investigation division of the Internal Revenue Service
("IRS"), testified at trial concerning the results of an
investigation   of   Robert  and   certain   transactions
involving MVFS.     Stoffa testified that Dianna Smith
deposited her check into her IRA on May 30, 1990. On
July 20, 1990, $300,000 was withdrawn from Smith's
account. Stoffa did not trace the funds to an annuity,
as Smith had authorized, but discovered that the $300,000
was used to purchase a cashier's check payable to MVFS.
Also on July 20, Robert signed a check from an MVFS bank

                           -3-
account made payable to Norwest in the amount of
$255,579.28. Prior to Smith's check being deposited into
the MVFS account, the balance in the account was
$54,569.07.    Stoffa stated that in his opinion, the
$300,000 from Smith's account was used to pay the loan at
Norwest because prior to the deposit of those funds, the
MVFS account did not have sufficient funds to make that
payment.   Smith testified that she did not authorize
Robert to invest her funds in such a manner.




                           -4-
    In 1994, Smith requested a meeting with Robert to
obtain documentation of her investments. Robert provided
her with a notebook which included, among other things,
a handwritten note authorizing $300,000 to be invested in
holding company funds and a promissory note signed by
Dale Ward, an MVFS director and Saundra Darrah's brother,
indicating that MVFS owed the Dianna Smith IRA $300,000.
Smith testified that she did not authorize such an
investment and that the initials indicating authorization
must have been forged. Ward testified that he prepared
the promissory note between MVFS and Smith's IRA at
Robert's direction. Smith, obviously upset that a large
portion of her retirement funds had been invested in a
manner inconsistent with her wishes, retained an attorney
and eventually recovered the $300,000, plus ten percent
interest.

    The Federal Reserve Board ("FRB") is responsible for
regulating bank holding companies.         The FRB had
determined that because MVFS was highly leveraged, it
would not be permitted to acquire additional debt. In
late 1990, the FRB began an inspection of MVFS to confirm
that it was operating in conformance with applicable
regulations.    In March of 1992, Robert signed and
submitted an FR Y-6 Annual Report for MVFS to the FRB.
The FR Y-6 showed a $300,000 transaction which was
reported by Robert as a shareholder contribution from
himself, rather than as a loan to MVFS from Smith's IRA.
At trial, FRB Examiner Mary Beth Tystahl examined the
note obligating MVFS to repay Smith's IRA and determined
that it signified a loan from Smith's IRA to MVFS in the
amount of $300,000. Tystahl testified that the FR Y-6
provided by Robert was false because it did not

                           -5-
accurately reflect the source of the $300,000 based on
the promissory note, and she also testified that the
source of funds was significant because it substantially
changed the level of MVFS's indebtedness.

     Robert and Saundra maintained a $45,000 credit line
at PNB. The bank kept a loan file containing relevant
information concerning the Darrahs' financial status.
The file contained a personal financial statement, along
with copies of the Darrahs' 1989, 1990, and 1991 tax
returns. Charles Schumacher, PNB's senior loan officer
from




                           -6-
January 1987 until October 1992, testified that it was
the normal business practice for banks to request copies
of potential loan customers' financial statements and tax
returns to assess their ability to repay loans.
Schumacher stated that he assumed customers would present
"accurate" copies of their tax returns. The 1989 return
Robert submitted to PNB, as well as two other banks,
reported an adjusted gross income of $236,393, while the
1989 return provided to the IRS reported an adjusted
gross income of $147,357.     Similarly, Robert provided
Norwest Bank Nebraska, N.A. with a 1992 tax return which
reported an adjusted gross income of $62,312, while the
1992 return Robert submitted to the IRS listed his
adjusted gross income as $33,312.       Pamela Reicks, a
revenue agent with the IRS, testified that during her
service with the IRS, she has never known anyone to file
a draft return without notifying the IRS of its draft
status.

    Saundra Darrah owned one-half of a company called
Saun Gi, Incorporated ("Saun Gi"). She also owned one
hundred percent of a gas station and convenience store
called Darrah's Apco, which the Darrahs' financial
statement valued at $750,000. Internal Revenue Officer
James Daugherty testified that Saun Gi owed the IRS
approximately $84,000 in unpaid unemployment withholding
taxes.    After Daugherty determined that Saundra was
responsible for the taxes, he requested a collection
information statement (IRS Form 433) from her to
determine her ability to repay the debt. On October 8,
1993, Saundra's attorney provided Daugherty with an IRS
Form 433 on Saundra's behalf. Saundra signed the form
immediately beneath the declaration that she would be

                           -7-
subject to penalties for perjury if the statements in the
form were not true. The form required Saundra to list
any investments, stocks, or securities.      On the line
requesting this information Saundra's form stated "none."
Thus, Saundra failed to report her interest in Darrah's
Apco.    Daugherty testified that he relied on the
information in the form to devise a schedule for Saundra
to pay the $84,000 debt. Daugherty stated had he known
of Saundra's interest in Darrah's Apco, it would have
influenced his collection methods.




                           -8-
    Based on the facts presented at trial, the jury
convicted Robert of four counts of making false
statements to financial institutions, see 18 U.S.C. §
1014, one count of misapplying bank funds, see id. § 656,
one count of engaging in a monetary transaction involving
property derived from the misapplication of bank funds,
see id. § 1957, and one count of knowingly making a false
statement to the Federal Reserve Board, see id. § 1001.
The jury convicted Saundra of knowingly making a false
statement to the IRS. See id. Robert and Saundra filed
motions for judgment of acquittal which the district
court2 denied. Both defendants appeal their convictions.

II. DISCUSSION

     A.    Robert Darrah

           1.    Instructional errors

    Robert appears to raise two instructional issues on
appeal. First, Robert asserts that the district court
committed error when it "fail[ed] to specifically
instruct the jury that materiality is one of the
essential elements" of 18 U.S.C. § 1014. Robert's Br. at
18. However, this argument is precluded by the Supreme
Court's recent decision that materiality is not an
essential element of § 1014. See United States v. Wells,
117 S. Ct. 921, 929 (1997).




     2
        The HONORABLE CHARLES R. WOLLE, Chief United States District Judge
for the Southern District of Iowa.

                                   -9-
    Robert also seemingly claims error in the district
court's failure to amend Instruction 19, which listed the
elements of 18 U.S.C. § 656. Instruction 19 required the
jury to determine whether Robert "was an officer of [PNB]."
Robert's App. at 35. At the instruction conference, the district court
agreed, upon the Government's request, to amend the instruction to inquire
whether Robert was either an officer or a director




                                   -10-
of PNB. The district court failed to make the agreed upon amendment, and
Robert claims error in that failure. Because Robert did not raise this
issue prior to his appeal, we review for plain error. See United States
v. Robinson, 110 F.3d 1320, 1324 (8th Cir. 1997).3           We note that
Instruction 18 includes the language of § 656 which states that a person
"connected in any capacity" with the institution, including an officer or
a director, can be found guilty of misapplication of funds. See Robert's
App. at 34.    Therefore, after viewing the instructions as a whole, we
conclude that the district court adequately instructed the jury on the law
of § 656.

              2.     Sufficiency of the evidence

      Robert challenges the sufficiency of the evidence presented on each
of the counts for which he was convicted. When considering the sufficiency
of the evidence, we consider the evidence in the light most favorable to
the guilty verdict. See United States v. Wade, 111 F.3d 602, 604 (8th Cir.
1997).    We must give the Government "the benefit of all reasonable
inferences that might be drawn from the evidence," United States v. Darden,
70 F.3d 1507, 1517 (8th Cir. 1995) (quotation and citation omitted), cert.
denied, 116 S. Ct. 1449 (1996), and "[w]e will reverse a conviction for
insufficient evidence and order the entry of a judgment of acquittal only
if no construction of the evidence exists to support the jury's verdict,"
id. After considering the evidence in this light, we conclude that the
Government presented sufficient evidence to support Robert's convictions.




       3
        Under the plain error standard, reversal is warranted if "(1) the court committed
an error; (2) the error is clear under current law; and (3) the error affects the defendant's
substantial rights." Robinson, 110 F.3d at 1324 (quotation, alteration, and citation
omitted).

                                            -11-
      In counts two, three, four, and five, the Government charged Robert
with making false statements4 in violation of 18 U.S.C. § 1014.5 For each
of the banks in question, Robert submitted a tax return as part of a loan
approval process. At trial, the Government established that the returns
submitted to the banks did not bear the same figures as the returns Robert
filed with the IRS. For example, the 1989 return Robert submitted to three
of the banks reported his adjusted gross income as $263,393, while the 1989
return Robert submitted to the IRS reported his adjusted gross income as
$147,357. Robert claims the Government failed to prove that the returns
he provided to the banks were false; rather, the evidence merely
established that the bank returns differed from those submitted to the IRS.
Therefore, Robert postulates that the only method for the Government to
prove the falsity of his statements was to establish that he somehow
asserted to the banks that the returns he provided to them were identical
to those he submitted to the IRS. Robert concludes that because he never
made such an assertion, the Government did not establish that he made false
statements. We do not agree with Robert's portrayal of the Government's
case.




      4
       The indictment charged Robert with making false statements to the following
banks: PNB in Council Bluffs; PNB in Avoca, Iowa; State Bank and Trust in Council
Bluffs; and Norwest Bank Nebraska, N.A. (collectively, the "banks").
      5
       Section 1014 provides:

             Whoever knowingly makes any false statement or report, or
      willfully overvalues any land, property or security, for the purpose of
      influencing in any way the action of . . . any institution the accounts of
      which are insured by the Federal Deposit Insurance Corporation, . . . upon
      any application, advance, discount, purchase, purchase agreement,
      repurchase agreement, commitment, or loan, or any change or extension
      of any of the same, by renewal, deferment of action or otherwise, or the
      acceptance, release, or substitution of security therefor, shall be fined not
      more than $1,000,000 or imprisoned not more than 30 years, or both.

18 U.S.C. § 1014 (1994).

                                          -12-
      We conclude that the differences between the bank returns and the IRS
returns were sufficient to establish that Robert made false statements.
Indeed, the disparity between the returns established that both could not
be true statements. Additionally, the IRS returns were signed by Robert
under penalties of perjury.      Therefore, a reasonable jury could have
concluded that because the bank returns substantially differed from the IRS
returns, the bank returns were false. True, a reasonable jury also could
have inferred that because the IRS returns differed from the bank returns,
the IRS returns were false, but that is not likely because the defendant
was to submit true copies of his returns to the IRS. Under the sufficiency
of the evidence standard, we must reverse the conviction "only if no
construction of the evidence exists to support the jury's verdict."
Darden, 70 F.3d at 1517.6 Because a reasonable jury could have concluded
that Robert Darrah submitted false returns to the banks, reversal is not
warranted.

      Robert also contends that the evidence presented at trial was
insufficient to sustain his conviction under 18 U.S.C. § 656.7 Robert
contends that the Government did not present any evidence that he "was in
any way connected to the transfer of the $300,000." Robert's Br. at 21.
He further argues that even if he was connected to the




      6
        Robert similarly argues that the Government failed to prove the materiality of
his statements. In light of the Supreme Court's decision in Wells, 117 S. Ct. at 929,
such proof was not necessary.
      7
       Section 656 provides:

             Whoever, being an officer, director, agent or employee of, or
      connected in any capacity with any Federal Reserve bank, member bank,
      depository institution holding company, [or] national bank . . . embezzles,
      abstracts, purloins or willfully misapplies any of the moneys, funds or
      credits of such bank . . . shall be fined not more than $1,000,000 or
      imprisoned not more than 30 years, or both . . . .

18 U.S.C. § 656 (1994).

                                         -13-
transfer of funds, his involvement was not in his capacity as a director
of PNB. We first note that this Circuit has not explicitly determined
whether § 656 requires "evidence that 'bank funds were misapplied by virtue
of the fact the defendant was connected in some capacity with a bank which
enable[d] him to gain access to bank funds.'" United States v. Marx, 991
F.2d 1369, 1372 (8th Cir.) (quoting United States v. Dreitzler, 577 F.2d
539, 547 (9th Cir. 1978), cert. denied, 440 U.S. 921 (1979)), cert. denied,
510 U.S. 1018 (1993). We need not decide this issue in the present case
because we conclude that the evidence was sufficient to establish Robert's
connection to the misapplication of bank funds in his capacity as a
director of PNB.

      Smith specifically requested that Robert invest $300,000 of her
retirement funds in an annuity and only $5,000 in a bank holding company
such as MVFS. Nonetheless, within months of Smith's opening an IRA at PNB,
$300,000 was transferred from her account to MVFS.       While Linda Hack
testified that Dale Ward requested the transfer of funds, Ward stated that
he knew nothing of the illegal nature of the transaction, and he prepared
the promissory note between the Smith IRA and MVFS at Robert's direction.
Furthermore, Robert, a director of PNB and MVFS, wrote the check from MVFS
to Norwest, thus utilizing the funds from Smith's IRA. The Government's
evidence was sufficient to allow a reasonable jury to conclude that Robert
was able to coordinate the transaction between the Smith IRA and MVFS
through his position as a director.8




      8
       Robert was convicted under 18 U.S.C. § 1957 for engaging in a monetary
transaction involving property derived from the willful misapplication of bank funds.
Robert's sole argument on appeal concerning this conviction is that because the
evidence did not establish that he willfully misapplied bank funds under § 656, he could
not have engaged in a transaction involving those funds under § 1957. Because we
have concluded that the evidence was sufficient to sustain Robert's conviction under
§ 656, Robert's § 1957 argument likewise fails.

                                         -14-
      Finally, Robert argues that the evidence was insufficient to support
his conviction for making a false statement under 18 U.S.C. § 1001.9 We
disagree.   The FRB had determined that MVFS would not be permitted to
undertake any additional indebtedness because it was already highly
leveraged. The FRB monitored MVFS's financial stability through annual FR
Y-6 reports which listed the company's various debts and other financial
occurrences. In 1992, Robert submitted the FR Y-6 to the FRB on behalf of
MVFS. The report indicated that Robert had made a $300,000 shareholder
contribution to MVFS. The report did not indicate that MVFS had become
indebted to the Dianna Smith IRA in the amount of $300,000.         Robert
contends that he did not submit a false report by failing to list the
$300,000 as a loan from Smith to MVFS because the loan was not authorized
by Smith or by the MVFS board of directors, and therefore, the Government
failed to present evidence that MVFS had a binding obligation to repay
Smith. We disagree. The note was not, as Robert claims, between himself
and the Smith IRA. Rather, the promissory note evidenced an obligation on
the part of MVFS to pay the Dianna Smith IRA $300,000. The evidence was
sufficient to allow the jury to conclude Robert falsely reported the
$300,000 loan as a shareholder contribution on the FR Y-6 when it was
actually a loan to MVFS.




      9
       Section 1001 provides:

              Whoever, in any matter within the jurisdiction of any department
      or agency of the United States knowingly and willfully falsifies, conceals
      or covers up by any trick, scheme, or device a material fact, or makes any
      false, fictitious or fraudulent statements or representations, or makes or
      uses any false writing or document knowing the same to contain any false,
      fictitious or fraudulent statement or entry, shall be fined under this title or
      imprisoned not more than five years, or both.

18 U.S.C. § 1001 (1994).

                                           -15-
     B.    Saundra Darrah

      Saundra Darrah argues that the evidence presented at trial was not
sufficient to support her conviction under 18 U.S.C. § 1001. On October
8, 1993, Saundra submitted a signed IRS Form 433 to the IRS in order for
the IRS to assess her ability to pay $84,000 in past due withholding taxes.
On the line requesting securities interests, the form stated "none."
However, a financial statement submitted to Norwest Bank by Robert and
Saundra Darrah reported that Saundra owned one hundred percent of Darrah's
Apco which was valued at $750,000. The financial statement was signed by
Saundra on October 31, 1993. Though Saundra admits signing the Form 433,
she argues that the Government failed to establish that she made a false
statement because it did not prove that she had knowledge of the contents
of the form. Her argument is largely based on the fact that her husband
and attorney completed the Form 433 on her behalf. However, just as a
taxpayer cannot avoid liability for submitting a false tax return by having
another complete it for her, see United States v. Walker, 896 F.2d 295, 299
n.9 (8th Cir. 1990), she likewise cannot escape fault for submitting a
false Form 433 by displaying a reckless disregard for the contents of the
document, see United States v. Puente, 982 F.2d 156, 159 (5th Cir.), cert.
denied, 508 U.S. 962 (1993).       Saundra submitted a signed financial
statement to Norwest Bank reporting her interest in Darrah's Apco just
three weeks after submitting the Form 433 to the IRS. She was the sole
owner of the business. Certainly, the evidence was sufficient for the jury
to conclude that Saundra knew of her interest in Darrah's Apco and should
have reported it on her Form 433.

      Saundra also contends that her conviction resulted in a violation of
her Fifth Amendment right to due process because her guilty verdict was
inconsistent with her husband's acquittal on the same charge.         This
argument is without merit because "[i]t is well established that
consistency of a jury's verdicts is not necessary."      United States v.
Finch, 16 F.3d 228, 230 (8th Cir. 1994); accord Hamling v. United States,
418 U.S. 87, 101 (1974).




                                   -16-
III. CONCLUSION

      For the reasons discussed above, we affirm the decision of the
district court.

     A true copy.

          Attest:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -17-
