United States v. Janice Christina Kain, 149 F.3d 1192, 10th Cir. (1998)

149 F.
3d 1192
98 CJ C.A.R. 3214
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,

v.
Janice Christina KAIN, Defendant-Appellant.
No. 97-6207.
United States Court of Appeals, Tenth Circuit.

June 18, 1998.
Before PORFILIO, KELLY, and HENRY, Circuit Judges.

ORDER AND JUDGMENT*
HENRY, Circuit Judge.
Janice Kain appeals her convictions for mail fraud, bank fraud, and money
laundering following a jury trial, arguing that there is insufficient evidence to
support the jury's verdict. After examining the briefs and appellate record, this
panel has determined unanimously that oral argument would not assist the
determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. We
order the case submitted without oral argument, exercise jurisdiction under 28
U.S.C. 1291, and affirm.
BACKGROUND
2
In an indictment filed in November 1996, the government charged Ms. Kain

with ten counts of mail fraud (violations of 18 U.S.C. 1341)), two counts of
bank fraud (violations of 18 U.S.C. 1344(2)), and three counts of money
laundering (violations of 18 U.S.C. 1956(a)(1)(B)(i)). Ms. Kain entered a plea
of not guilty, and the case proceeded to trial.

3
The evidence presented at trial indicated that Ms. Kain served as treasurer of
the First Church of Christ Scientist in Nichols Hills, Oklahoma from 1986 to
1995. In that position, Ms. Kain was responsible for managing church funds
and paying church expenses as authorized by the church's governing board.
In June 1989, the board granted Ms. Kain's request to change the church's bank
accounts. Ms. Kain then opened a new account for the church at Nichols Hills
Bank in Oklahoma City. However, she left open the church's account at Liberty
Bank in Oklahoma City. She directed Liberty Bank to send account statements
to a post office box that she had opened without informing church officials.
Ms. Kain then used the account at Liberty Bank to pay a variety of personal
expenses, including rent and utility and telephone bills for her personal
residence and expenses incurred on family vacations. Ms. Kain was not
authorized to use church funds in this manner. Additionally, in 1994, Ms. Kain
deposited two checks written on a church bank account into her personal
account at the Bank of Oklahoma in Oklahoma City. These checks listed Ms.
Kain's son as the payee, even though the church's governing board had not
authorized payments to him. Moreover, Ms. Kain's son's signature endorsing
the checks had been forged.
The government's theory of the case was that, by directing the statements for
the Liberty Bank account to be mailed to her post office box without informing
church officials, Ms. Kain used the mails to further her scheme to defraud the
church. The government also argued that by depositing into her personal
account the unauthorized checks drawn on a church account and containing
forged endorsements, Ms. Kain committed bank fraud under 18 U.S.C.
1344(2). Finally, the government contended that by depositing proceeds of her
mail fraud scheme into her personal account, Ms. Kain sought to conceal
evidence of her unlawful activity, thereby violating 18 U.S.C. 1956(a)(1)(B)
(i).
At trial, Ms. Kain acknowledged that she had used church funds to pay
unauthorized personal expenses. However, she argued, the government failed to
prove that she had violated the federal mail fraud, bank fraud, and money
laundering statutes. According to Ms. Kain, the mailing of the bank statements
to her personal post office box did not further her plan to defraud the church.
She also argued that because she had not intended to defraud the banks at
which the church held accounts, she did not violate the bank fraud statute.
Finally, she contended, because a money laundering violation involves the

concealing of the proceeds of unlawful activity and because she did not commit
the alleged unlawful activity (mail fraud), there was insufficient evidence to
support the money-laundering counts.
DISCUSSION
8
In assessing a challenge to the sufficiency of the evidence, we examine the

record in the light most favorable to the government, determining whether the
evidence and all reasonable inferences therefrom can support a finding of guilt
beyond a reasonable doubt. United States v. Wacker, 72 F.3d 1453, 1462 (10th
Cir.1995). We may overturn a conviction "only if no rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt." Id.
at 1462-63.
In challenging the sufficiency of the evidence in this appeal, Ms. Kain argues
that her use of the personal post office box to receive the bank statements for
the church accounts did not constitute mail fraud because the church authorized
her to receive financial documents in her capacity as treasurer. See Aplt's Br. at
9. Ms. Kain's argument ignores the evidence presented by the government
indicating that church officials did not know that she continued to maintain the
church account at Liberty Bank after she opened the account at Nichols Hills
Bank and that her use of the post office box allowed her to conceal her
unauthorized withdrawals from the Liberty Bank accounts. This evidence is
sufficient to establish the elements of mail fraud: "(1) the devising of a scheme
or artifice either (a) to defraud or (b) for obtaining money by means of false or
fraudulent pretenses, representations, or promises, (2) the specific intent to
defraud, and (3) the use of the United States mails to execute the scheme."
United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995).
10
Ms. Kain advances a similar argument regarding the two bank fraud counts.
She contends that her position as treasurer gave her the authority to issue
checks from the church accounts, that her "subsequent conversion of money
was beyond the cognizance of the banks," and that, as a result, this conversion
did not constitute bank fraud under 18 U.S.C. 1344(2). See Aplt's Br. at 7.
We disagree.
11
In order to establish a bank fraud violation under 1344(2), the government

must establish that the defendant executed or attempted to execute a "scheme or
artifice--... to obtain ... funds ... owned by, or under the custody or control of, a
financial institution, by means of false or fraudulent pretenses, representations,
or promises." See 18 U.S.C. 1344(2); United States v. Sapp, 53 F.3d 1100,
1102-03 (10th Cir.1995). This circuit has concluded that a defendant's

misrepresentation to a bank that he or she is authorized to engage in a particular
transaction may constitute a violation of 1344(2). See United States v.
Young, 952 F.2d 1252, 1257 (10th Cir.1991). Depositing a check that is known
to contain a forged endorsement may constitute a misrepresentation sufficient
to support a bank fraud conviction under 1344(2). See United States v.
Lemons, 941 F.2d 309, 315-16 (5th Cir.1991).
12
Here, viewing the evidence in the light most favorable to the government, the
jury could reasonably conclude that Ms. Kain deposited checks written on
church bank accounts into her personal bank account when she knew that the
checks contained forged endorsements. The evidence is therefore sufficient to
support Ms. Kain's bank fraud convictions under 1344(2).
13
Finally, Ms. Kain challenges her money laundering convictions under 18 U.S.C.
1956(a)(1)(B)(i). In order to establish a violation of this statute, the
government must prove beyond a reasonable doubt that: (1) the defendant
engaged in a financial transaction; (2) the defendant knew that the property
involved in the transaction represented the proceeds of his or her unlawful
activities; (3) the property did in fact constitute the proceeds of the unlawful
activities; and (4) the defendant knew that the transaction was designed in
whole or in part to conceal the nature, source, ownership or control of the
proceeds of the specified unlawful activities. United States v. Garcia-Emanuel,
14 F.3d 1469, 1473 (10th Cir.1994). Because there is insufficient evidence to
support the mail fraud convictions, Ms. Kain contends, there is insufficient
evidence of the unlawful activity necessary to support the money laundering
convictions.
14
We conclude that because the evidence is sufficient to support Ms. Kain's mail
fraud convictions, her challenge to the money laundering convictions must also
fail. The evidence presented by the government is sufficient for a rational juror
to conclude that Ms. Kain deposited funds from the church accounts into her
personal accounts in order to conceal the proceeds of her mail fraud scheme,
thereby violating 1956(a)(1)(B)(i).
15
Accordingly, we affirm the judgment of the district court.

Circuit Judge
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

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149 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Tenth Circuit.

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

In an indictment filed in November 1996, the government charged Ms. Kain

of not guilty, and the case proceeded to trial.

Finally, she contended, because a money laundering violation involves the

In assessing a challenge to the sufficiency of the evidence, we examine the

In order to establish a bank fraud violation under 1344(2), the government

1102-03 (10th Cir.1995). This circuit has concluded that a defendant's

Accordingly, we affirm the judgment of the district court.

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