In U.S. v. Hamaker, No. 03-12554 (11th Cir. 2006), the Court affirmed bank fraud convictions, and, on a government cross-appeal, reversed the sentence based on the district court’s erroneous calculation of the "loss" amount. The bank fraud arose out of defendant’s billing a bank for construction work that they did on the personal property of the bank’s CEO.
The Court rejected the argument that the defendants were entitled to an "apparent authority" jury instruction, based on their claim that they relied on the authorization of the bank’s vice-president. The Court noted that a bank official is never authorized to empower a fraud on his institution. The instruction would therefore have been erroneous. The defendants were entitled to a "good faith defense" instruction, which was correctly given.
The Court also rejected the argument that a new trial should have been granted after the government produced new documents after the conviction. The Court concluded that the defendants showed no prejudice from the withheld documents. The Court also found no error in withholding disclosure that a government witness was an informant in an unrelated investigation.
The Court further rejected the argument that an FBI agent who testified regarding his compilation of data from documents should have been designated an expert witness. The Court noted that the witness did not give any opinions. Further even if he should been disclosed pre-trial as an expert, no prejudice occurred because he only testified about the contents of defendant’s own documents.
The Court rejected defendants’ challenge to the sufficiency of the evidence, noting the "mountain of evidence" of fraudulent billing.
Turning to the government’s cross-appeal of the sentence, the Court noted that the district court believed that the amount of loss imputable to the defendants’ for sentencing enhancement purposes should be limited to the $178,500 the jury stated should be forfeited, not the approximately $2 million the PSI found had been improperly obtained from the Bank. The Court held that the district court erred in three ways. First, the forfeiture amount was what the jury believed should be divested from the defendants as penalty, but did not measure the harm suffered by the victim bank. Second, the jury’s forfeiture verdict was not a special verdict and therefore did not purport to represent the jury’s estimate of the general losses. Third, the Sentencing Guidelines require judges to make "independent" findings at sentencing. The district court should not per se restrict its loss calculation to the jury’s forfeiture verdict.