     13-615
     United States v. Hoke

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-615
16
17       KENITA E. HOKE,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        TIMOTHY AUSTIN (Molly Corbett,
22                                             on the brief), for Lisa A.
23                                             Peebles, Federal Public Defender
24                                             for the Northern District of New
25                                             York, Albany, New York.
26
27       FOR APPELLEES:                        RAJIT S. DOSANJH (Edward P.
28                                             Grogan, on the brief), for

                                                  1
 1                                Richard S. Hartunian, United
 2                                States Attorney for the Northern
 3                                District of New York, Syracuse,
 4                                New York.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Northern District of New York (McAvoy, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13       Kenita Hoke appeals from the judgment of the United

14   States District Court for the Northern       District of New York

15   (McAvoy, J.), convicting her of bank fraud, in violation of

16   18 U.S.C. § 1344(2), and passing and uttering a forged

17   Treasury check, in violation of 18 U.S.C. § 510.       The

18   charges arose from Hoke’s deposit into her own account of a

19   Social Security check made out to a third party.       After Hoke

20   withdrew the funds, the Treasury sought to recover the funds

21   because the beneficiary’s endorsement (and direction to pay

22   to the order of Hoke) was forged.       We assume the parties’

23   familiarity with the underlying facts, the procedural

24   history, and the issues presented for review.

25       1.   Intent to Defraud

26       Hoke challenges the sufficiency of the evidence

27   demonstrating her intent to defraud under both counts.

28   Because Hoke preserved this objection, we review the

29   sufficiency issue de novo.   United States v. Sabhnani, 599

30   F.3d 215, 241 (2d Cir. 2010).       “A defendant challenging the

                                     2
1    sufficiency of trial evidence bears a heavy burden, and the

2    reviewing court must view the evidence presented in the

3    light most favorable to the government and draw all

4    reasonable inferences in the government’s favor.”     United

5    States v. Gagliardi, 506 F.3d 140, 149 (2d Cir. 2007)

6    (internal quotation marks omitted).   “The jury’s verdict

7    will be affirmed unless no rational trier of fact could have

8    found all of the elements of the crime beyond a reasonable

9    doubt.”   Id. at 149-50 (internal quotation marks omitted).

10       Hoke has not sustained this burden.   The beneficiary

11   testified that she never received the check or endorsed it.

12   While the handwriting analysis concluded that the false

13   signature and the endorsement to Hoke was not done in Hoke’s

14   hand, the evidence could lead a juror to believe Hoke knew

15   the check was forged.   There is no dispute that Hoke

16   endorsed the check, deposited it, and withdrew the money.

17   In the course of the investigation, Hoke gave conflicting

18   accounts of how she came to deposit the check.   Furthermore,

19   the bank teller testified that Hoke was nervous when

20   depositing the check, and that was one reason the teller

21   consulted her supervisor.   A reasonable juror could find

22   beyond a reasonable doubt on this evidence that Hoke

23   possessed the requisite intent to defraud.



                                   3
1        To the extent Hoke contests the credibility of the

2    government’s witnesses at trial, we “defer to a jury’s

3    assessments with respect to credibility [as long as they

4    are] ‘reasonably based on evidence presented at trial.’”

5    United States v. Torres, 604 F.3d 58, 67 (2d Cir. 2010)

6    (quoting United States v. Ceballos, 340 F.3d 115, 125 (2d

7    Cir. 2003)).   We disagree with Hoke’s contention that the

8    testimony given by the beneficiary was so incredible as to

9    overcome this deference.

10       2.   Intent to Victimize the Bank

11       Based on this Court’s decision in United States v.

12   Nkansah, 699 F.3d 743 (2d Cir. 2012), Hoke argues that the

13   evidence was insufficient on the bank fraud charge to show

14   an intent to victimize First Niagara.   Since this argument

15   was never raised below, we review for plain error.     See

16   United States v. Draper, 553 F.3d 174, 179 (2d Cir. 2009).

17   “For an error to be plain, ‘it must be a clear or obvious

18   deviation from current law that affected the outcome of the

19   district court proceedings.’” Id. (quoting United States v.

20   Crowley, 318 F.3d 401, 415 (2d Cir. 2003)).

21       Nkansah, decided after Hoke’s conviction, held that the

22   bank fraud statute “is a specific intent crime requiring

23   proof of an intent to victimize a bank by fraud. [A]

24   federally insured or chartered bank must be the actual or

                                   4
1    intended victim of the scheme.”    Nkansah, 699 F.3d at 748

2    (internal citations and quotation marks omitted).     In

3    Nkansah, “[t]here [was] no evidence of the Treasury

4    dishonoring the checks or seeking reimbursement from any of

5    the banks,” id. at 750, whereas here the Treasury Department

6    did seek reimbursement.    Still, Nkansah is sufficiently

7    analogous to find some weight in Hoke’s argument.     Assuming

8    error in Hoke’s case, however, the error was not plain.

9        3.     Jury Instructions

10       Hoke contests an aiding and abetting jury charge on two

11   grounds.   First, Hoke argues that the evidence did not

12   support the instruction.   “We review a claim of error in

13   jury instructions de novo, reversing only where, viewing the

14   charge as a whole, there was a prejudicial error.”      United

15   States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006)

16   (internal quotation marks omitted).   “An error is harmless

17   only if it is clear beyond a reasonable doubt that a

18   rational jury would have found the defendant guilty absent

19   the error.”   Id. (internal quotation marks omitted).      As the

20   evidence makes it clear beyond a reasonable doubt that a

21   rational jury would have found the defendant guilty as a

22   principal, any alleged error was harmless.

23       Secondly, Hoke argues that the aiding and abetting

24   charge constructively amended the indictment in violation of

                                    5
1    the Fifth Amendment’s Grand Jury Clause.       “To prevail on a

2    constructive amendment claim, a defendant must demonstrate

3    that either the proof at trial or the trial court’s jury

4    instructions so altered an essential element of the charge

5    that, upon review, it is uncertain whether the defendant was

6    convicted of conduct that was the subject of the grand

7    jury’s indictment.”   United States v. Frank, 156 F.3d 332,

8    337 (2d Cir. 1998).   “[T]he inclusion of an aiding and

9    abetting charge to the jury will rarely, if ever,

10   constructively amend an indictment because an aiding and

11   abetting charge is arguably implicit in every indictment.”

12   United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.

13   1994).   “Accordingly, it is well established that a trial

14   judge may properly give an aiding and abetting instruction

15   even if the indictment does not expressly charge a[n aiding

16   and abetting charge].”   Id.    Hoke contends that the jury

17   instructions might have led the jury to convict her of

18   conspiracy.   However, the jury charge did not include any of

19   the elements of a conspiracy.       To the extent Hoke argues the

20   instructions led the jury to convict her of fraud against

21   the Treasury, the jury was instructed solely on bank fraud

22   and the evidence supported that charge.       The jury

23   instructions did not constructively amend the indictment.

24

                                     6
1        4.   Read-Back of Testimony

2        A ruling that permits a read-back of trial testimony to

3    the jury is reviewed for abuse of discretion.   See United

4    States v. Escotto, 121 F.3d 81, 84 (2d Cir. 1997).   The

5    portions of Agent Duffalo’s testimony read back to the jury

6    were responsive to the jury’s request and included portions

7    from the direct examination, cross examination, rebuttal,

8    and recross.   While the district court denied Hoke’s request

9    for some portions to be included in the read back, the

10   information Hoke sought to have included was read back in

11   other contexts.   The district court did not abuse its

12   discretion.
13
14        For the foregoing reasons, and finding no merit in
15   Hoke’s other arguments, we hereby AFFIRM the judgment of the
16   district court.
17
18                               FOR THE COURT:
19                               CATHERINE O’HAGAN WOLFE, CLERK
20




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