            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 98-20758
                                          _______________

                              UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                               VERSUS

                 ABRAHAM MELAWER; MARK R. SKELTON;
             KENNETH R. BURROUGHS; and MARK E. BURROUGHS,

                                                              Defendants-Appellants.

                                    _________________________

                            Appeals from the United States District Court
                                 for the Southern District of Texas
                                          (H-97-CR-169-2)
                                  _________________________

                                          December 21, 1999

Before GARWOOD, SMITH, and                                                    I.
  BENAVIDES, Circuit Judges.                             The defendants were indicted for bank
                                                      fraud in violation of 18 U.S.C. § 1344(1),
JERRY E. SMITH, Circuit Judge:*                       based on banking activity at Westheimer Na-
                                                      tional Bank (“WNB”).2 Skelton was senior
   Mark Skelton, Abraham Melawer, Kenneth             vice president of WNB, and the other three
Burroughs, and Mark Burroughs challenge               defendants were customers.         The three
their bank fraud convictions. We affirm Skel-         indictment counts share one common element:
ton’s conviction on count one but reverse the         Skelton is charged with bank fraud for
remaining convictions.                                defrauding WNB through involvement in a
                                                      check kiting scheme. In count one, the other
                                                      participants in the alleged scheme are Ira and
    *
      Pursuant to 5TH CIR. R. 47.5, the court has
                                                         2
determined that this opinion should not be                 Section 1344(1) prescribes criminal penalties
published and is not precedent except under the       for anyone who “knowingly executes, or attempts
limited circumstances set forth in 5TH CIR. R.        to execute, a scheme or artifice . . . to defraud a
47.5.4.                                               financial institution . . . .”
James Finlay; in count two the other                       Melawer or the Burroughses, respectively.
participant is Melawer; and in count three the             Skelton allegedly approved the payment of
other participants are Kenneth and Mark                    checks when there were insufficient funds in
Burroughs.3 The Finlays pleaded guilty to bank             their accounts, approved immediate credit on
fraud under a plea agreement requiring them to             deposits, and deceived the board with respect
cooperate in the prosecution of Skelton,                   to the true nature and extent of unsecured
against whom they then testified.                          credit thus extended. This inflated the account
                                                           balances and put them at defendants’ disposal,
    Count one alleges that over a period of ap-            allowing the accounts to become overdrawn.
proximately one and one-half years, Skelton                Melawer and the Burroughses allegedly know-
approved the payment of checks when there                  ingly wrote checks drawn on accounts with
were insufficient funds in the Finlays’                    insufficient funds; they would deposit these
accounts, approved immediate credit on                     checks into a WNB account at the end of the
deposits and automobile drafts, and deceived               month to create the appearance of a positive
the board of directors of WNB with respect to              balance during the float.4
the true nature and extent of unsecured credit
thus extended. These actions allegedly inflated                                   II.
the Finlays’ account balances and put those                   The defendants claim there is insufficient
inflated balances at their disposal, permitting            evidence to support their convictions. “In
the Finlays’ accounts to become overdrawn.                 evaluating a challenge to the sufficiency of the
                                                           evidence, we view the evidence in the light
                                                           most favorable to the verdict and uphold the
    Counts two and three allege almost                     verdict if, but only if, a rational juror could
identical schemes, count two involving Skelton             have found each element of the offense beyond
and Melawer and count three involving                      a reasonable doubt.” United States v. Brown,
Skelton and the Burroughses. Both schemes                  186 F.3d 661, 664 (5th Cir. 1999). This
allegedly took place over a period of slightly             review is de novo, and “[i]f the evidence
less than one year.                                        viewed in the light most favorable to the pro-
                                                           secution gives equal or nearly equal
   Melawer and the Burroughses had several                 circumstantial support to a theory of guilt and
accounts at WNB and other financial                        a theory of innocence, a defendant is entitled
institutions, some of which were in the names              to a judgment of acquittal.” Id. (internal
of corporate entities controlled by either                 quotation marks omitted). Based on this
                                                           standard of review, we conclude that the
                                                           evidence is sufficient to sustain Skelton’s
   3                                                       conviction on count one but that there is
      There was also a count four involving crim-
inal forfeiture pursuant to 18 U.S.C. § 982, but
                                                           insufficient evidence to sustain the remaining
this count was dismissed in a post-trial proceeding.
Count two alleges that Skelton and Melawer
                                                              4
knowingly executed and attempted to execute a                    The “float” is the time between when the
scheme and artifice to defraud WNB, each aiding            funds are registered in the account and when
and abetting the other. The allegation in count            payment is received by the bank. If immediate
three is identical as between Skelton and the              credit is available, funds can be withdrawn even if
Burroughs.                                                 payment will never be received.

                                                       2
convictions of Skelton and the convictions of          the account holder an unsecured loan), it was
Melawer, Kenneth Burroughs, and Mark                   not a criminal decision.5
Burroughs.
                                                           For Skelton’s argument to succeed, the en-
                       A.                              tire bank entity had to be behind the “policy,”
   Because some of the evidence is not                 for we have previously held that bank officers
admissible against the customer defendants,            “with authority to bind their banks to others
we first consider Skelton’s sufficiency claim as       can nevertheless defraud the institutions they
to count one. To convict under § 1344(1), the          serve.” United States v. Saks, 964 F.2d 1514,
government must prove beyond a reasonable              1518 (5th Cir. 1992).          Thus, in Saks
doubt that the defendant knowingly executed            defendants who had colluded with bank
or attempted to execute a scheme or artifice to        officers who were co-chairmen of the board
defraud a financial institution. Defendants do         and owned a controlling interest in the
not contest their participation in the kiting          institution were found guilty of bank fraud: “It
schemes; rather, they argue a defense of lack          is the financial institution itselfSSnot its
of intent to defraud.                                  officers or agentsSSthat is the victim of the
                                                       fraud the statute proscribes.” Id.; see also
   Skelton contends that in 1989, WNB was in           United States v. Aubin, 87 F.3d 141, 146-47
financial straits and in danger of closing and         (5th Cir. 1996). Likewise, bank customers
required some source of increased income, so           “who collude with bank officers to defraud
WNB's management made a decision that fee              banks may also be held criminally accountable
income would be the bank's main thrust. In             either as principals or as aiders and abettors.”
particular, it would focus on fees generated by        Saks, 964 F.2d at 1518-19.
paying checks that otherwise would be
returned for insufficient funds, known as                 The government presented sufficient
“NSF” checks. The bank also would pay                  evidence to enable a rational juror to reject
checks that were drawn against uncollected             Skelton’s “bank policy” claim. Skelton pushed
balances, which occur when a customer makes            the Finlays and all three co-defendants to
a deposit but payment has not yet been                 “clear” their overdrafts as of the last day of
received from the bank on which the deposit is         each month, meaning that those overdrafts
drawn.                                                 would not appear on the monthly report to the
                                                       board of directors. The customers repeatedly
    Creating overdrafts by paying NSF checks           used checks drafted from accounts with
and making deposited funds immediately avail-          insufficient funds for this purpose, and
able allowed profitable and continuous check           therefore in a manner of days the WNB
kiting. Skelton claims that these practices            account would once again return to overdraft
were successful in producing much-needed               status.
income, and further urges that even if the
policy was a poor banking decision (as
allowing the kiting can lose money in interest
paid on the inflated amounts and in effect gives          5
                                                             In other words, Skelton’s characterization is
                                                       that the bank knew of the kiting and remained silent
                                                       because it collected fees in exchange for giving
                                                       preferred customers off-the-books loans.

                                                   3
   Skelton does not contest that he urged the              Skelton also received cash and in-kind pay-
Finlays and other defendants to clear their            offs from Ira Finlay: In addition to certain
overdrafts at the end of each month, but he            trailers and perhaps overly generous deals on
contends that he had no criminal motive in             vehicles, Finlay gave Skelton approximately
doing so. Ira Finlay testified, however, that          $500 per week ($100 a day) throughout the
Skelton informed him that the reason that              period in which the Finlays engaged in the
accounts must not be overdrawn on the last             kiting activity. Ira Finlay testified that he with-
day of the month is that such overdrawn                held cash from checks he deposited in his
accounts would appear on the monthly report.           WNB account, put the cash in a plain
Further, James Finlay testified that he informed       envelope, and presented the envelope to
Skelton that they were using floated funds to          Skelton. This testimony was corroborated by
cover their monthly overdrafts.                        two other witnesses: a bank employee who
                                                       recalled that Ira Finlay often requested cash
    Skelton’s desire to keep the overdrafts from       back from his deposits in hundred dollar bills
appearing on the monthly board report might            and requested an envelope at those times; and
not be independently sufficient to demonstrate         an employee of Ira Finlay’s who both
that kiting was not bank policy, but there is          witnessed Finlay giving an envelope to a man
abundant other evidence in this regard. Skel-          at WNB and took an envelope to a secretary at
ton was also involved in the deletion of certain       WNB on behalf of Finlay three or four times.
references to Finlay overdrafts in a quarterly
report, and WNB’s cashier, Glenda Mayo, tes-
tified that Duff informed Skelton of his                   As to the board’s knowledge of Skelton’s
concern with the Finlays’ situation numerous           “policy,” the board did not have daily
times and expressed concern with the                   overdraft information in its monthly report.
Burroughs and Melawer accounts. In fact,               The board chairman, Champion Traylor, Jr.,
Skelton falsely assured Mayo and other bank            testified that he was surprised to learn the
employees that the situations either would not         status of the Finlay accounts when it was
continue or that the relevant customers would          uncovered by bank regulators and that he did
deposit sufficient collateral to cover the risks       not previously know of any such pattern of
of their accounts.                                     immediate credit and large overdrafts. He
                                                       feels that he was misled as to the financial
   Mayo further testified that Skelton often           status of the bank and would have tried to stop
waived the $25 NSF check fee for the                   the overdraft situation had he known of it.
defendants, making it unlikely that focusing on        Another member of the board, Doyle Graham,
such fee income was the bank’s policy. Lastly,         Jr., testified that he was shocked to learn of
she testified that the bank wanted account             the Finlay situation and that the board had no
overdrafts cleared at any time during the              information from which it could have predicted
month (not just as of the last day of the              that situation until it was uncovered by outside
month), and that such “clearing” was not               regulators.
supposed to be done with an NSF check that
would create another overdraft.                           A federal bank examiner, Bryan Heath,
                                                       likewise testified that in reviewing the board
                                                       reports, he found nothing that would arouse


                                                   4
suspicion as to the true state of the accounts at       substantial number of NSF checks being paid
issue. He further testified that most banks             to generate that much fee income, the resulting
earn a significant amount of money from NSF             overdrafts were consistently cleared with legit-
and similar fees and that, in his professional          imate funds in relatively short periods of time,
opinion, Skelton’s conduct caused the                   leaving the bank in a comparatively low-risk
overdrafts to be unknown to the board.                  situation. In fact, this was not the case.

    Notwithstanding this evidence, Skelton in-             As we have said,
sists that it was bank policy to clear overdrafts
at the end of each month; he stresses that there           [c]heck kiting is a scheme designed to
was nothing preventing the other board                     separate the bank from its money by
members from perusing the bank’s daily                     tricking it into inflating bank balances
reports if they so desired. Skelton cites                  and honoring checks drawn against ac-
evidence that Duff, Skelton, and Mayo met                  counts with insufficient funds. Section
every day to review all pending NSF checks                 1344(1) does not require a specific
and checks presented for payment against                   intent to permanently deprive the bank
uncollected balances. Therefore, the senior                of its funds. It is sufficient to knowingly
officers of WNB and at least two members of                participate in a scheme to trick the bank
the board (Duff and Skelton) were aware of                 into inflating bank balances by kiting
Skelton’s actions. As noted above, however,                checks between two or more banks.
there was at least some controversy among                  The bare act of check kiting defrauds
these individuals regarding defendants’                    the bank by temporarily placing the
accounts, and Skelton presented no evidence                bank’s funds at the disposal of the
from Duff or other board members that such                 account holder.
activity was bank policy.
                                                        United States v. Frydenlund, 990 F.2d 822,
   Skelton also points out that in 1992, over           824 (5th Cir. 1993) (internal quotation marks
66% of the bank's income came from NSF                  and citations omitted). Under this test, a ra-
charges, and therefore he argues that the board         tional juror could find that the government
must have been aware of his activities. Such a          proved Skelton’s guilt on count one beyond a
conclusion simply does not follow: An NSF               reasonable doubt; the evidence makes it
check for $3 that is cleared the next day earns         rational to reject Skelton’s contention that
the same $25 fee as an NSF check for $1,000             there was never any intention to “trick” the
that is not cleared for three months. As far as         bank.
the information given to the board indicated,
the bank was earning substantial income from                                    B.
NSF fees, and only a relatively small number                While some of the evidence discussed
of customers were still in overdraft status at          above also is relevant to the culpability of
the end of each month (and those not by a               Melawer and the Burroughses, much of it is
significant dollar amount).                             not, and there is not sufficient evidence for a
                                                        rational juror to find that beyond a reasonable
   Therefore, the board had every reason to             doubt these defendants intended to defraud
believe that, although there must be a                  WNB.        The government presented no


                                                    5
convincing evidence that Melawer and the
Burroughses were doing anything more                Skelton had business relationships with
sinister than banking pursuant to policies       Melawer and the Burroughses beyond their
expounded by their friend Skelton in his         banking concerns; the defendants do not deny
official capacity.                               that they might be considered friends in this
                                                 regard. The evidence also made clear that
                                                 both Melawer and the Burroughses knowingly
                                                 “cleared” overdrafts with bad checks, and the
                                                 defendants presented no evidence that they
                                                 were in fact told that this was acceptable bank
                                                 policy.

                                                     The government bears the burden of proof,
                                                 however, and must therefore prove that these
                                                 defendants had the intent of tricking the bank.
                                                 There is no evidence in this regard. Although
                                                 the customer defendants engaged in conduct in
                                                 a repeated pattern that ultimately caused WNB
                                                 to lose money, there is no evidence that they
                                                 did so without the authority of the bank, or at
                                                 least without the apparent authority of the
                                                 bank through Skelton. Therefore, no rational
                                                 juror could have found that the government
                                                 proved the guilt of Melawer, Kenneth
                                                 Burroughs, or Mark Burroughs beyond a
                                                 reasonable doubt; we therefore reverse their
                                                 convictions based on insufficiency of the
                                                 evidence.

                                                                      C.
                                                    Having reversed the convictions of Mela-
                                                 wer and the Burroughses, we must also
                                                 reverse the conviction of Skelton on counts
                                                 two and three. The government alleged
                                                 execution of a scheme to defraud WNB
                                                 through the actions of Melawer and the
                                                 Burroughses.     Having found insufficient
                                                 evidence of criminal intent motivating those
                                                 actions, we find insufficient evidence that
                                                 Skelton aided and abetted any scheme to
                                                 defraud WNB in counts two and three.




                                             6
                    III.                                there is no substantial identity of participants
   Skelton claims several other issues on ap-           to satisfy the rule.7
peal. None presents reversible error.
                                                           Therefore, to satisfy rule 8(b) there must be
                       A.                               a substantial identity of facts among the
    Skelton claims that the district court erred        defendants’ offenses.
in finding that defendants were properly joined
under FED. R. CRIM. P. 8(b),6 and alternatively            Whether or not separate offenses are
that the court abused its discretion in denying            part of a ‘series of acts or transactions’
his motion to sever pursuant to FED. R. CRIM.              under 8(b) depends on the relatedness of
P. 14. A claim of misjoinder is reviewable on              the facts underlying each offense. When
appeal as a matter of law; if the limits of                the facts underlying each offense are so
rule 8(b) are exceeded, severance will be                  closely connected that proof of such
granted unless the court concludes that the                facts is necessary to establish each
error was harmless. See United States v.                   offense, joinder of defendants and
Maggitt, 784 F.2d 590, 595 (5th Cir. 1986).                offenses is proper.

   The defendants did not participate in the            Welch, 656 F.2d at 1049. This court has pre-
same act or transaction, and therefore for              viously found joinder to be improper where
joinder to be proper under the rule, they must          multiple defendants were joined without the
have participated in “the same series of acts or        requisite substantial identity of facts. See, e.g.,
transactions constituting an offense or of-             Lane, 735 F.2d at 799; Levine, 546 F.2d
fenses.” In United States v. Marionneaux,               at 658.
514 F.2d 1244, 1248-49 (5th Cir. 1975), this
court defined the phrase “the same series of               We need not decide this issue, however,
acts or transactions” as requiring a “substantial       because even if misjoinder did occur, it was
identity of facts or participants” between two          harmless as to Skelton. “[A]n error involving
offenses. Because the only identity of                  misjoinder affects substantial rights and
participants is Skelton’s role in all counts,           requires reversal only if the misjoinder results
                                                        in actual prejudice because it had substantial
                                                        and injurious effect or influence in determining
                                                        the jury's verdict.” Lane, 474 U.S. at 449
                                                        (internal quotation marks omitted).
   6
       Rule 8(b) provides:
                                                           Melawer and the Burroughses were tried
                                                        for bank fraud based on their banking
   Two or more defendants may be charged in
   the same indictment or information if they
   are alleged to have participated in the same
                                                            7
   act or transaction or in the same series of                See United States v. Lane, 735 F.2d 799,
   acts or transactions constituting an offense         804-05 (5th Cir. 1984), rev'd on other grounds,
   or offenses. Such defendants may be                  474 U.S. 438 (1986); United States v. Welch,
   charged in one or more counts together or            656 F.2d 1039, 1049 (5th Cir. Unit A Sept. 1981);
   separately and all of the defendants need not        United States v. Levine, 546 F.2d 658, 664-66 (5th
   be charged in each count.                            Cir. 1977).

                                                    7
interactions at WNB. Skelton was tried for               and other defendants resulted in spillover pre-
bank fraud based on his role in those very               judice in the minds of the jurors).
interactions.   Joinder therefore did not
prejudice Skelton, making any misjoinder                    Skelton argues that a key issue is what he
harmless error.                                          told each of the co-defendants regarding the
                                                         reason for that defendant’s making a deposit at
  Likewise, the court did not err in denying             the end of each month, especially in light of
Skelton's motion to sever pursuant to FED. R.            the testimony of Ira Finlay that Skelton told
CRIM. P. 14. That rule provides:                         him the monthly board meetings were the
                                                         reason. By joining Melawer and the Bur-
   If it appears that a defendant or the gov-            roughses, Skelton was prevented from calling
   ernment is prejudiced by a joinder of of-             them as witnesses on his behalf. Likewise, be-
   fenses or of defendants in an indictment              cause there was evidence of payments from the
   or information or by such joinder for                 Finlays, Skelton argues that there was an im-
   trial together, the court may order an                plication that payment was made by the other
   election or separate trials of counts,                defendants as well; once again Skelton was
   grant a severance of defendants or                    prevented from calling them as witnesses on
   provide whatever other relief justice                 his behalf.8
   requires.
                                                           In United States v. Rocha, 916 F.2d 219,
    Balancing the right of a defendant to a fair         231-32 (5th Cir. 1990), we held that
trial against the interests of judicial economy is
within the discretion of the court, and we will             [e]xculpatory testimony in some cases
not reverse absent abuse of discretion. See                 may provide the basis for a severance.
United States v. Morrow, 177 F.3d 272, 290                  In order to demonstrate a prima facie
(5th Cir.), cert. denied, 120 S. Ct. 333 (1999);            case for severance to introduce
United States v. Zicree, 605 F.2d 1381, 1388                exculpatory testimony of a co-
(5th Cir. 1979). To demonstrate abuse of dis-               defendant, a defendant must show: (1) a
cretion, the defendant “bears the burden of                 bona fide need for the testimony; (2) the
showing specific and compelling prejudice that              substance of the testimony; (3) its
resulted in an unfair trial, and such prejudice             exculpatory nature and effect; and (4)
must be of a type against which the trial court             that the co-defendant would in fact
was unable to afford protection.” Morrow,                   testify if severance were granted.
177 F.3d at 290 (internal quotation marks
omitted). Skelton contends that he was
prejudiced by joinder both because joinder                    8
                                                                 Although Skelton argues that he met the
prevented him from calling Melawer and the               criteria of rule 14, he does not seem to argue that
Burroughses to the stand to give exculpatory             regardless of that rule, denial of a severance
testimony (because of their Fifth Amendment              violated his Sixth Amendment right to compulsory
privilege against self-incrimination) and                process. Even assuming he has asserted that claim,
because of guilt by association (prejudice from          he did not establish “specific and compelling
evidence admitted with respect to other counts           prejudice” necessary to demonstrate a violation of
                                                         his Sixth Amendment right. See United States v.
                                                         Villarreal, 963 F.2d 725, 732 (5th Cir. 1992).

                                                     8
Skelton has not indicated, and a review of the           It is beneficial not because of the complexity
record does not reveal, that any such showing            of its underlying operations, but because it can
was made. Therefore, the court did not abuse             tally the results when a large number of
its discret ion in denying severance on this             transactions (deposits and withdrawals) are
ground.                                                  involved. Skelton claims that the evidence
                                                         was irrelevant and prejudicial and that the
    There is no merit to Skelton’s claim of spill-       district court abrogated its gatekeeping role
over prejudice resulting from evidence that              under Daubert and its progeny. See Kumho
would have been inadmissible against him had             Tire Co. v. Carmichael, 526 U.S. 137
the defendants/counts not been joined. “The              (1999);General Elec. Co. v. Joiner, 522 U.S.
test for severance under Rule 14 is whether the          136 (1997); Daubert v. Merrell Dow Pharms.,
jury could sort out the evidence reasonably              Inc., 509 U.S. 579 (1993).
and view each defendant and the evidence re-
lating to that defendant separately.            If          We have described the gatekeeper role as
cautionary instructions are deemed sufficient,           follows:
severance is not required.” United States v.
Merida, 765 F.2d 1205, 1219 (5th Cir. 1985).                The district judge must first determine
Skelton does not identify any evidence                      whether the proffered testimony is
admissible only against his co-defendants that              reliable, requiring an assessment of
prejudiced him, nor any evidence admissible                 whether the reasoning or methodology
only on one count that prejudiced him on other              underlying the testimony is scientifically
counts in light of his common modus operandi                valid. Second, the district judge must
in all three counts. Therefore, the court did               determine whether that reasoning or
not abuse its discretion in denying severance.              methodology can be properly applied to
                                                            the facts in issue; that is, whether it is
                       B.                                   relevant.
   Skelton claims the court erred in admitting
evidence of, and evidence produced by, the               Curtis, 174 F.3d at 668. The government in-
government’s use of computer software in                 troduced pedigree information on CKAS
analyzing the check kites.          We review            through its expert, most significantly that in his
evidentiary rulings for abuse of discretion. See         experience with the program he had found its
Curtis v. M&S Petroleum, Inc., 174 F.3d 661,             results to be consistent with manual
667 (5th Cir. 1999).                                     calculations, and that its underlying theory
                                                         made it little different from a glorified
   Special Agent Morehart, an expert in                  calculator.
financial crimes, testified on behalf of the
government. His testimony included his                      When complex scientific or other expert
manual analysis of the defendants’ account               evidence is at issue, the district court must
activity and a computer analysis performed by            scrutinize whether the reasoning or
software named “Check Kite Analysis                      methodology underlying it is valid; there is no
System,” or CKAS. CKAS, developed by the                 such issue regarding CKAS. Morehart’s
FBI, is apparently a relatively simple program           testimony regarding its functionality, and his
used to analyze possible check kiting activity.


                                                     9
experience with its results,          adequately                                 D.
demonstrate its reliability.                                   Skelton claims the court erred by not
                                                           granting a new trial based on, or at least
   The second part of the gatekeeper role,                 holding an evidentiary hearing to investigate,
whether that reasoning and methodology are                 information that one of the jurors was
relevant, is also straightforward: The expert              prescribed a muscle relaxant during the trial,
described his use of the program, its results,             that the jurors discussed the case in groups
the results of his manual analysis, and the                during the course of the trial, and that a juror
relevance of each. The testimony was neither               approached a prospective defense witness
irrelevant nor improperly prejudicial.                     regarding the trial. We review the denial of a
Therefore, the court did not abuse its                     motion for new trial for abuse of dis-
discretion in allowing the testimony.                      cretionSSthe procedures used to investigate
                                                           allegations of juror misconduct and the
                       C.                                  decision as to whether to hold an evidentiary
   Skelton claims the court erred in admitting             hearing are matters within the sound discretion
evidence of internal WNB rule violations and               of the district court. See United States v.
federal regulatory violations. The government,             Jobe, 101 F.3d 1046, 1057-58 (5th Cir. 1996).
over objection, introduced evidence of the in-
ternal lending limit imposed on Skelton by the
board of directors, the loan limit to a single                 Skelton argues that he was effectively im-
customer imposed on WNB as a whole, and a                  properly tried by a jury of only eleven, because
statement by an employee of the Office of the              a juror imbibed a prescription muscle relaxant
Comptroller of the Currency (“OCC”) that                   that caused her to “doze off during trial.” This
overdrafts were not a safe banking practice.               information was disclosed to Skelton’s counsel
                                                           through “an unsolicited telephone call after the
   All three elements are relevant                         trial,” which call also apparently included in-
circumstantial evidence regarding why Skelton              formation that the jurors had discussed the
might have allowed the “loans” through kiting              case in groups of two or three throughout the
and why he did not want the amounts reflected              trial.
on the monthly board report. There is no
evidence that this testimony was introduced or                 Skelton contends that the court erred in
used in any manner that would lead the jury to             failing to hold an evidentiary hearing
believe that violation of those regulatory prin-
ciples was equivalent to a criminal violation.
Therefore, United States v. Christo, 614 F.2d
                                                           (...continued)
486 (5th Cir. 1980), is inapposite, and the
                                                           regarding the regulatory violations focused the
court did not abuse its discretion in admitting            jury's attention on those prohibitions and made it
the evidence.9                                             impossible for this court to tell whether Christo had
                                                           been found guilty under the criminal section at
                                                           issue or merely for the regulatory violations. See
  9
    In Christo, regulatory violations were not only        Christo, 614 F.2d at 491-92. Nothing even
included in the indictment and emphasized                  remotely akin to that level of emphasis occurred in
throughout the trial, but the court's instructions         this case. See United States v. Saks, 964 F.2d
                           (continued...)                  1514, 1522-23 (5th Cir. 1992).

                                                      10
regarding, or accept his motion for new trial               Although in Jobe the district court did have
based on, this information. He admits to                 an affidavit of the juror, the critical difference
finding no case on point, but states that “[i]f a        between Jobe and the instant case is that here,
person is advised not to drive or operate heavy          there is no evidence of any extrinsic
machinery, a common warning with muscle                  information’s reaching any juror. The Jobe
relaxers [relaxants], it seems self evident that         court recognized a presumption of jury
the juror had to rely on the recollections of            impartiality that may be defeated through
other jurors and could not have formed her               evidence that extrinsic factual matter tainted
own opinion based on all the evidence.” Such             the jury’s deliberations. See id. at 1058. We
a generic claim does not rise to a level                 therefore stated that a court “must investigate
requiring a court to investigate further,                the asserted impropriety only when a colorable
especially in light of the limited ability of a          showing of extrinsic influence is made.” Id.
court to inquire into jury deliberations under
FED. R. EVID. 606(b), and therefore the district             Skelton made no such showing: The
court did not abuse its discretion.                      information presented to the court indicated
                                                         that no extrinsic evidence was communicated,
   Skelton also raises, but does not argue, er-          and the court had no reason to believe the
ror based on the court's handling of juror con-          situation was otherwise. Therefore, the court
tact with a potential witness. During trial, the         did not abuse its discretion in choosing to
court was informed by the government that                admonish the jury not to discuss the case with
one of the jurors had approached a potential             anyone.
defense witness, Sam Goldman of the OCC, at
a school track meet. The juror apparently                                        E.
asked Goldman whether he knew anything                      Skelton claims the court erred in limiting
about WNB. Goldman responded that he was                 the scope of his expert’s testimony. During
not going to discuss that issue and that the             government voir dire, Sam James Pierce
juror should not be asking that question.                testified that he was qualified as an auditor (He
                                                         is a certified public accountant and had
   Instead of questioning the juror about the            experience as an auditor with the FDIC and
incident, the court admonished the jury not to           other organizations.) but was not qualified to
discuss the case with anyone. Skelton                    investigate fraud, had never been a bank
contends that this constituted error. In Jobe,           examiner or lending officer, and had very little
101 F.3d at 1057-59, we considered a similar             experience with check kiting. The court
challenge on very different facts. Billie Mac            therefore limited him to testifying on matters
was convicted of, inter alia, bank fraud. Dur-           of accounting.
ing trial, one of the jurors discussed the case
with a relative and was told that Billie Mac                We review the exclusion of expert
had previously been convicted in another bank            testimony for abuse of discretion. See United
fraud case. Even though this “knowledge”                 States v. Willis, 38 F.3d 170, 174 (5th Cir.
was technically incorrect, and the district court        1994). Skelton rests his argument on an ir-
denied an evidentiary hearing to investigate             relevant premise: that when the government
and denied a new trial, we affirmed.                     has been allowed to present its version of how
                                                         banks should be operated, the defense should


                                                    11
be afforded the same opportunity. The court                 We review the sufficiency of an indictment
did not deny that opportunity in this caseSSit           do novo. See United States v. Crow, 164 F.3d
merely required that Skelton present a witness           229, 234 (5th Cir.), cert. denied, 119 S. Ct.
qualified to testify to such matters. The court          2051 (1999). The indictment must conform to
did not abuse its discretion in limiting Pierce’s        minimal constitutional standards, and “[t]he
testimony to his area of expertise.                      proper test for determining the validity of the
                                                         indictment is whether or not the defendant has
                      F.                                 been prejudiced by the alleged deficiency.” Id.
   Skelton claims he is entitled to a new trial          at 234-35.
based on the cumulative error doctrine. In
United States v. Canales, 744 F.2d 413, 430                 An indictment is sufficient if it contains
(5th Cir. 1984), we recognized that “the                    the elements of the offense charged, fair-
cumulative effect of several incidents of . . .             ly informs the defendant what charge he
misconduct may require reversal, even though                must be prepared to meet, and enables
no single one of the incidents, considered                  the accused to plead acquittal or
alone, would warrant such a result.” As in                  conviction in bar of future prosecutions
United States v. Moye, 951 F.2d 59, 63 n.7                  for the same offense. An indictment is
(5th Cir. 1992), because there is no merit to               read for its clear meaning and
any of Skelt on’s claims of error, his claim of             convictions will not be reversed for
cumulative error must also fail.                            minor deficiencies that do not prejudice
                                                            the accused.
                      G.
   Skelton claims the indictment either                  United States v. Shelton, 937 F.2d 140, 142
provided inadequate notice or was                        (5th Cir. 1991) (internal citation and quotation
constructively amended. First, he avers that             marks omitted).
the indictment alleges that he deceived the
board of directors, when the crime is to                     Not only would the minor issues raised by
deceive WNB itself. Second, he contends that             Skelton not have prejudiced his defense, but
the indictment did not adequately allege how             the indictment was not in fact flawed. It does
he deceived the board or how he aided and                allege that Skelton defrauded WNB and does
abetted Melawer and the Burroughses in                   describe the manner in which he executed the
executing a scheme to defraud. Lastly,                   schemes to defraudSSnamely, by allowing
Skelton contends that the indictment was                 overdrafts, granting immediate credit, and en-
constructively amended at trial, because the             couraging “removal” of the overdraft on the
indictment alleges that he made immediate                last day of the month.
credit available to persons (Melawer and the
Burroughses), but he was convicted of making                “A constructive amendment occurs when
immediate credit available to corporations               the jury is permitted to convict the defendant
(Some accounts were held in the name of cor-             upon a factual basis that effectively modifies
porations that Melawer or the Burroughses                an essential element of the offense charged. If
controlled.). All three claims are meritless.            we find that the indictment has been
                                                         constructively amended, we must reverse the
                                                         conviction.” United States v. Holley, 23 F.3d


                                                    12
902, 912 (5th Cir. 1994) (internal citations and        REVERSED and REMANDED for entry of
quotation marks omitted).                               judgments of acquittal.10

    There was no constructive amendment.
The evidence demonstrated that Skelton made
immediate credit available to the accounts at
issue; some of those accounts were held in the
name of corporations control led by
defendants. In this manner, Skelton made
immediate credit available to the corporations
and thus to those controlling the corporations,
which persons did in fact exploit that credit as
alleged. Skelton does not claim that any of the
corporations at issue were not controlled by
the named defendants, but merely that the jury
was allowed to convict him for making
immediate credit available to corporations
when the indictment charged that he made that
credit available to the persons controlling
those corporations. This does not constitute
modification of an “essential element of the
offense charged,” and therefore no
constructive amendment occurred.

                        H.
   Skelton claims that he was improperly con-
victed on the basis of the uncorroborated testi-
mony of an accomplice, Ira Finlay. This claim
has no meritSSFinlay’s testimony was
corroborated by bank records and substantial
other evidence. Even Finlay’s testimony
regarding the payoffs was corroborated by
testimony of a bank employee and of Finlay’s
employee. See part II.A., supra.

  In summary, Skelton’s conviction on count
one is AFFIRMED; his conviction on counts
two and three and the convictions of Melawer,
Kenneth Burroughs, and Mark Burroughs are

                                                          10
                                                             Skelton’s convictions on counts two and three
                                                        did not affect the guideline range on count one, but
                                                        resentencing is necessary to allow recalculation of
                                                        the special assessment and amount of restitution.

                                                   13
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