                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 16 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-1111
                                                   (D.C. No. 97-CR-91-ALL)
    CROSBY L. POWELL,                                     (D. Colo.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BALDOCK , BARRETT , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Crosby L. Powell appeals from his conviction following a ten-day jury trial

on three counts of making a false statement, in violation of 18 U.S.C. § 1001; six

counts of bank fraud, in violation of 18 U.S.C. § 1344; and two counts of using a

false social security number, in violation of 42 U.S.C. § 408(a)(7)(B). He also

appeals his sentence to a forty-six month term of imprisonment and five-year term

of supervised release. We affirm.


                                 BACKGROUND

            False Statements to the Social Security Administration

      On November 20, 1990, Powell applied to the Social Security

Administration for supplemental security income (SSI) benefits. During the

eligibility evaluation process, Powell asserted that he had no bank accounts. The

statement, however, was false. On the application date, he had a savings account

at Capital Federal Savings and Loan with a balance of $3,138.96, which was

above the $2,000 limitation on assets and would have, if known, precluded Powell

from receiving SSI benefits.

      Powell also made false statements during two interviews conducted to

determine whether he remained eligible for SSI. On March 8, 1993, he claimed

that he was receiving no income when, in fact, he was receiving a salary from his

business, Crosby L. Powell and Associates, which had a division called CLP

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Services Company. He made similar false statements on March 23, 1995. Powell

received $17,950 in SSI benefits to which he was not entitled and approximately

$2,419 in related Medicaid benefits.

              Bank Fraud and Use of a False Social Security Number

      Powell was charged with engaging in four separate bank fraud schemes,

from February 1992 through June 1994. Powell opened accounts at four different

banks under various versions of his name or in the name of his business, at times

using false social security numbers to forestall negative reports on his banking

history. 1 Into these accounts he deposited some legitimately-obtained funds, plus

stolen checks and checks drawn on closed accounts. He then wrote checks and

made cash withdrawals against the uncollectible deposits. Powell’s deposits

from unauthorized sources at all four banks totaled $187,547.46. After

recovering some of the money for returned checks, the banks’ aggregate loss was

$59,158.60.




1
      Powell opened an account at Central Bank in the name of Crosby L. Powell
and Associates; at City Center National Bank in the name of CLP Services
Company; at the Greater Denver Credit Union in the name of Crosby L. Powell
d/b/a CLP Services Co.; and at Norwest Bank in the name of Crosby L. Powell
d/b/a Crosby L. Powell and Associates. He used false social security numbers at
City Center National Bank and the Greater Denver Credit Union.

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                                      DISCUSSION

       On appeal, Powell raises five issues: (1) whether certain counts of the

controlling indictment were multiplicitous; (2) whether the district court abused

its discretion in denying Powell’s motion under Fed. R. Crim. P. 14 to sever trial

of the social security counts from the bank fraud counts; (3) whether the district

court erred in limiting the government’s disclosure of information related to

another investigation; (4) whether the district court erred in admitting evidence of

other crimes, wrongs, or acts that should have been excluded under Rule 404(b)

of the Federal Rules of Evidence; and (5) whether the district court erred in

calculating the amount of loss to the victims, thereby increasing the offense level

under U.S.S.G. § 2F.1.1.

                                      Multiplicity

       We review de novo an argument on multiplicity, which “refers to multiple

counts of an indictment which cover the same criminal behavior.”       United States

v. Wall , 37 F.3d 1443, 1446 (10th Cir. 1994) (quotation omitted). “The central

question for determining multiplicity is whether a jury could plausibly find that

the actions described in the disputed counts of the indictment, objectively viewed,

constituted separate executions of the bank fraud scheme.”      Id. (quotations

omitted). “ < [E]ach separate execution of a scheme to defraud may be pled as a

distinct count of the indictment.’”    Id. (quoting United States v. Rimell , 21 F.3d


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281, 287 (8th Cir. 1994)). We have previously rejected contentions that targeting

a single bank as a victim necessarily means a single scheme and that “every

transaction pursuant to which [the defendant] acquired money was all part of a

unitary [bank fraud] scheme, executed only once.”     Id. at 1446-47.

      Here, Powell asserts that it is multiplicitous to charge him with two

separate counts of bank fraud relating to his dealings with Central Bank (Counts

II and III) and two separate counts relating to Norwest Bank (Counts IX and X).

The claim is that Counts II and IX charge the contours of schemes to defraud

these two banks and that Counts III and X separately charge acts necessary to the

completion of the schemes. For his primary support, Powell points to indictment

language incorporating Counts II and IX by reference in Counts III and X.

      The charged scheme called for the withdrawal of unauthorized funds from

the targeted banks, using an account balance secured through the deposit of

uncollectible checks. Accordingly, each withdrawal was a separate and distinct

execution of the same scheme, not an integrally-related act in furtherance of a

single offense. The use of incorporation language in the indictment does not

change our analysis.   Cf. United States v. Serino , 835 F.2d 924, 930 (1st Cir.

1987) (holding that incorporation by reference of conspiracy count into

substantive count does not constitute multiplicity). We affirm the district court’s

conclusion that the indictment was not multiplicitous.


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                                          Severance

       “Whether to grant severance under Rule 14 rests within the discretion of

the district court and the burden on defendant to show an abuse of discretion in

this context is a difficult one. Prejudicial joinder occurs under Rule 14 when an

individual’s right to a fair trial is threatened or actually deprived.”      United States

v. Johnson , 130 F.3d 1420, 1427 (10th Cir. 1997),         cert denied , 119 S. Ct. 78

(1998) (quotations omitted). A defendant who wishes to remain silent on some

counts and testify on other counts is not entitled to a severance under Rule 14

without

       a convincing showing that he has both important testimony to give
       concerning one count and strong need to refrain from testifying on
       the other. In making such a showing, it is essential that the
       defendant present enough information--regarding the nature of the
       testimony that he wishes to give on one count and his reasons for not
       wishing to testify on the other--to satisfy the court that the claim of
       prejudice is genuine and to enable it to intelligently weigh the
       considerations of economy and expedition in judicial administration
       against the defendant’s interest in having a free choice with respect
       to testifying.

United States v. Martin , 18 F.3d 1515, 1518-19 (10th Cir. 1994) (quoting          United

States v. Valentine , 706 F.2d 282, 291 (10th Cir. 1983) (further citation omitted)).

       Powell argues that separate trials would have given him the opportunity to

provide testimony on the charges that he had made false statements to obtain SSI

benefits, without jeopardizing his defense to the bank fraud charges. He would

have testified that he had met eligibility requirements whether or not the charged

                                               -6-
bank fraud had occurred. Because this proposed testimony would have placed his

bank fraud activities directly at issue, it does not support a need for separate

trials. The district court did not abuse its discretion in denying the motion for a

severance.

                                Discovery Violations

      To establish a violation of a defendant’s due process rights under       Brady v.

Maryland , 373 U.S. 83 (1963), there must be a showing that

      the prosecution suppressed the evidence, the evidence would have
      been favorable to the accused, and the suppressed evidence was
      material. Evidence is material if there is a reasonable probability
      that, had the evidence been disclosed to the defense, the result of the
      proceedings would have been different, i.e., when the Government’s
      evidentiary suppression undermines confidence in the outcome of the
      trial. In determining whether [the defendant] has satisfied these
      requirements, the court views the undisclosed evidence in relation to
      the record as a whole, as the materiality of exculpatory evidence will
      vary with the overall strength of the government’s case.

Moore v. Reynolds , 153 F.3d 1086, 1112 (10th Cir. 1998),       cert. denied, 1999 WL

25232 (U.S. Mar. 22, 1999). We review       Brady claims de novo.     See Newsted v.

Gibson , 158 F.3d 1085, 1094 (10th Cir. 1998),     petition for cert. filed , (U.S.

Mar. 15, 1999) (No. 98-8597).

      Powell requested records from an F.B.I. investigation into a check-kiting

scheme carried out by a group of individuals which included Powell’s son. The

district court ordered production of any evidence that overlapped with the

investigation into the charges against Powell, but refused to order disclosure of

                                           -7-
information that did not relate to the investigation of Powell. In compliance with

the order, the government produced one item--a check drawn on the account of an

individual named Malcolm Green. The Green check had been deposited into the

son’s account; other Green checks had been deposited into Powell’s account.

       Powell asserts that production of the entire F.B.I. file on the check-kiting

scheme would have bolstered his defense that other individuals had deposited

uncollectible checks into the bank accounts, in that his son was a proposed

alternative suspect. This argument is simply too speculative to establish a

reasonable probability of a different outcome. Considering the allegedly

suppressed evidence in light of the record as a whole, we conclude that the

government did not fail to disclose known, favorable evidence rising to a material

level of importance. We reject Powell’s      Brady claim.

                                  Evidentiary Rulings

       “We review the admission of evidence at trial for abuse of discretion.

However, even if the trial court erroneously admits evidence, such error does not

require reversal if it was harmless.”     United States v. Wittgenstein   , 163 F.3d

1164, 1172 (10th Cir. 1998) (citations omitted). Evidence of prior uncharged

misconduct, or bad character evidence, is properly admitted under Rule 404(b) if:

(1) it is offered for a proper purpose under the Rule; (2) it is relevant; (3) the trial

court makes a Rule 403 assessment that the probative value of the evidence is not


                                             -8-
substantially outweighed by its potential for unfair prejudice; and (4) the trial

court, upon request, instructs the jury that the evidence is to be considered only

for the proper purpose for which it was admitted.       See Huddleston v. United

States , 485 U.S. 681, 691-92 (1988).    2



       “Evidence admissible for one of the purposes specified in Fed. R. Evid.

404(b) and res gestae evidence are not always separated by a bright line.”         United

States v. Kimball , 73 F.3d 269, 272 (10th Cir. 1995). Evidence of other bad acts

“should not be suppressed when those facts come in as         res gestae –‘as part and

parcel of the proof of the offense [ ] charged in the indictment.’”      Id. (quoting

United States v. Gano , 560 F.2d 990, 993 (10th Cir.1977)).

       Powell argues that the district court abused its discretion in admitting

numerous invalid checks into evidence at trial, because these checks constituted



2
       Rule 404(b) provides:

       (b) Other crimes, wrongs, or acts . Evidence of other crimes,
       wrongs, or acts is not admissible to prove the character of a person in
       order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity,
       intent, preparation, plan, knowledge, identity, or absence of mistake
       or accident, provided that upon request by the accused, the
       prosecution in a criminal case shall provide reasonable notice in
       advance of trial, or during trial if the court excuses pretrial notice on
       good cause shown, of the general nature of any such evidence it
       intends to introduce at trial.



                                             -9-
evidence of other crimes, wrongs or acts prohibited under Rule 404(b). This

argument must be placed in the context of the bank fraud counts of the

indictment, which alleged a scheme of depositing stolen checks and checks drawn

on closed accounts into Powell’s bank accounts during the period from February

1992 through June 1994.

      A review of the record reveals that some of the contested exhibits were

admitted as part of the “res gestae” of the charged offenses. Others were admitted

under Fed. R. Evid. P. 404(b) to show identity, absence of mistake, plan, or

knowledge. For each exhibit, the district court made an explicit ruling with an

explanation of its rationale and, if necessary, gave an appropriate limiting

instruction. We find no abuse of discretion in the district court’s evidentiary

rulings.

      Calculating Loss for Sentencing Purposes Under U.S.S.G. § 2F1.1

      Section 2F1.1, the sentencing guideline for offenses involving fraud and

deceit, increases the base offense level for a fraud offense to account for the loss

caused by defendant. “We review the district court’s findings determination of a

U.S.S.G. § 2F1.1 loss under the clearly erroneous standard, but we review the

factors the court may properly consider de novo.”    United States v. Moore , 55

F.3d 1500, 1501 (10th Cir. 1995). “[L]oss need not be determined with precision.




                                          -10-
The court need only make a reasonable estimate of the loss, given the available

information.” U.S.S.G. § 2F1.1, comment (n.9).

       Powell argues that the district court miscalculated the loss to his victims

by including the amount he received in SSI benefits and Medicaid, because he

would have been entitled to these benefits in spite of the money received from his

bank fraud offenses. After reviewing the record, we conclude that the district

court’s inclusion of these amounts in the loss calculation was not unreasonable

and thus, not clearly erroneous.

                                   CONCLUSION

      Appellant’s motion to supplement the record is GRANTED. The judgment

of the United States District Court for the District of Colorado is AFFIRMED.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




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