USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1229
UNITED STATES,
Appellee,
v.
STELIOS M. VAVLITIS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella, Circuit Judge,
_____________
and Bownes, Senior Circuit Judge.
____________________
____________________
Robert A. George on brief for appellant.
________________
Jonathan L. Kotlier, Assistant United States
____________________

Attorney, and

John Pappalardo, United States Attorney on brief for appellee.

_______________
____________________
November 19, 1993
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

Defendant-appellant,

Stelios M. Vavlitis, was convicted of bank fraud, 18 U.S.C.

1344(1),

for

kiting

checks

accounts bearing insufficient

whether the district
superseding

by

original indictment.

funds.

on

which

allowing the

money

We consider

Vavlitis

trial

from

on appeal

midtrial the
had

not

to continue

on

been
the

We also must determine whether the jury

instruction on reasonable
there

withdrawing

court erred by dismissing

indictment

arraigned, and

and

doubt was

erroneous, and

was sufficient proof of fraudulent intent.

whether

We affirm.

I.
I.
__
BACKGROUND
BACKGROUND
__________
In January 1990, Vavlitis maintained seven checking
accounts, including six commercial
account, at two

accounts and one personal

federally-insured banks,

Trust Company (Atlantic Bank) and

of the accounts were with
held

the remainder.

each

of these

Bank of New England.

and
Four

Atlantic Bank; Bank of New England

Vavlitis was an authorized signatory on

accounts.

relevant times was

Atlantic Bank

Atlantic Bank's

practice at

to credit Vavlitis's accounts

all

with funds

equal to the face value of the checks he deposited, without a

delay to
banks

verify that

on which

these checks would

they were

drawn.

"float," a period of one or more days

be honored

This practice

by the

created a

that would pass before

-22

a deposited check

credited to an account would

be processed

and

presented for

payment

from the

account

of the

check

when the

banks

writer--Vavlitis.
From January
froze his

1990 until

accounts, Vavlitis used

balances

in his

insufficient
England.

accounts

by

funds between

the float to buoy

exchanging

Atlantic Bank

checks
and

up the

drawn

Bank of

on
New

He withdrew money and wrote checks to third parties

against funds he did not actually

balances.

The result was

accounts

were frozen

overdraft

1990,

have, despite his inflated

that when his four

on May

14,

of $1,615,968.92.

suspecting check
May

May 1990

Atlantic Bank

1990, there

When

Bank

was a

of

New

total

England,

kiting, closed Vavlitis's three accounts in

there

was

combined

positive

balance

of

jury returned

an

$683,292.63.
On
indictment

February 19,

charging Vavlitis with

The indictment

alleged that

Vavlitis orchestrated
checks written
controlled at
charging
alleged

Atlantic Bank

that

this

of

control

of

funds into

indictment,
allowed

bank fraud.

and May

scheme by

and Bank of

the

scheme

one count of

kiting

on insufficient

paragraph

grand

between January

a check

"$1,615,968.00, more or
and

1991, a

1990,

depositing

the accounts
New England.
paragraph

Vavlitis

to

he
The

seven,
obtain

less, owned by and under the custody

Atlantic

Bank and

-33

Bank

of

New England."

Paragraph nine alleged

scheme,

that as a result of

the check kiting

"Atlantic Bank suffered a loss of $1,615,968.00 more

or less, minus $638,315.00 in funds recouped from the Bank of

____________________________________________________
New England checking accounts maintained by defendant STELIOS
_____________________________________________________________
M. VAVLITIS, for a net ultimate loss of $932,653.00, more or
_____________________________________________________________
less."
____

(Emphasis added.)

Vavlitis

was arraigned on

this

indictment on March 5, 1991.

On
superseding
original

March 12,

1991,

indictment,

the

grand

identical in

indictment, except for

jury

all

returned

respects

paragraph nine.

to the

Paragraph

nine of the superseding indictment stated that as a result of

the check kiting

scheme, "Atlantic Bank

$1,615,968.00 more or less."

suffered a loss

of

The superseding indictment thus

alleged the total loss resulting from the scheme, but did not
describe the "net ultimate loss."
the

prosecutor,

Vavlitis

was

Because of an oversight by
never

arraigned

on

the

superseding indictment.
In

her opening

statement

in Vavlitis's

trial on

November
and

30, 1992, the prosecutor referred to the indictment

stated

million

that Vavlitis

loss."

indictment."
that he

She

did

Defense

had no notice

"left
not

the

the

$1.6

the

term "superseding

counsel moved for a

mistrial claiming

of the

use

banks with

superseding indictment,1

and

____________________
1. On September 6, 1991, more than one year before trial,
the
government served defense
counsel with its trial
memorandum, which stated:
"Vavlitis is charged in the
-44

that his

client had

not been arraigned

on it.

The

trial

court denied the motion, pending further inquiry, and allowed

the prosecution to call four witnesses from the two banks.
After the first day of
Vavlitis

had

indictment.

not

been

The court

dismiss the superseding

continue

on

renewed motion
denied.

the

arraigned

on

the

superseding

granted the prosecution's

motion to

indictment and allowed the

trial to

original indictment.

for mistrial

The trial

trial, the court found that

and motion

Defense

counsel's

for dismissal

court subsequently denied

a motion

were
for

judgment of acquittal, and the

jury found Vavlitis guilty of

bank fraud.
II.
II.
___
A.
A.

Dismissal of Indictment, Double Jeopardy, Variance, and

Dismissal of Indictment, Double Jeopardy, Variance, and
________________________________________________________
Constructive Amendment
Constructive Amendment
______________________
Vavlitis

argues that the midtrial dismissal of the

superseding indictment prevented

the original

indictment, and

any further prosecution

that the

continuation of

on
the

trial on the original indictment violated the Double Jeopardy

Clause.

We disagree.
It is

clear

that the

grand

jury's return

of

superseding indictment does not void the original indictment.

See United States v.
___ ______________
1981); United States
_____________

Friedman, 649 F.2d

________

199, 202

v. Holm, 550 F.2d 568,

____

(3d Cir.

569 (9th Cir.),

____________________
Superseding Indictment with
______________________
(Emphasis added.)

one count of bank fraud . . . ."

-55

cert. denied, 434

_____ ______

U.S. 856 (1977).

Double Jeopardy Clause to prevent

acquittal
not

defendant may use the

reprosecution following an

or conviction on a superseding indictment, but may

rely

on

instantaneously

the

notion

nullifies

the

United States
_____________

v. Bowen, 946
_____

(finding

authority

"no

superseding

that

superseding

original

indictment

indictment.

F.2d 734, 736 (10th

which

supports

See
___

Cir. 1991)
.

that

indictment zaps an earlier indictment to the end

that the earlier indictment somehow vanishes into thin air").

Both

indictments in

this

case

remained

valid

until

the

district court granted the government's motion to dismiss the

superseding indictment.
Vavlitis also contends
of the

that the midtrial dismissal

superseding indictment prevented

further prosecution

for the same offense charged in the original indictment.

aspect of the Double Jeopardy

Clause at issue in

The

Vavlitis's

assertion is the protection against reprosecution following a

favorable

termination

of

"historical" underpinning of

proceedings

midtrial.

The

the double jeopardy prohibition

is that
"the State with all its resources and
power should not be allowed to make
repeated
attempts
to
convict
an
individual
for
an
alleged offense,
thereby subjecting him to embarrassment,
expense and ordeal and compelling him to

live in a continuing state of anxiety and

insecurity, as well as enhancing the
possibility that even though innocent he
may be found guilty."
-66

United States v. Scott, 437 U.S. 82, 87 (1978) (quoting Green

_____________
_____
_____
v. United States, 355 U.S.
_____________

184, 187-88 (1957)).

of the

prohibition

ruling

that ends the case is to protect the "valued right of

defendant to

on reprosecution

have

particular tribunal.

his

[or her]

Id. at
___

following

One purpose

trial

midtrial

completed" by

92; United States v. Govro, 833

_____________
_____

F.2d 135, 137 (9th Cir. 1987); United States ex rel. Young v.
___________________________
Lane, 768
____

F.2d 834, 838

(7th Cir.), cert. denied,

_____ ______

474 U.S.

951 (1985).
Given
Vavlitis's double
to show

these

principles,

jeopardy argument.

we

find

merit

in

First, Vavlitis fails

a second attachment of jeopardy.

when the jury was impanelled

no

Jeopardy attached

for the bank fraud prosecution.

See Crist v.
___ _____

Bretz, 437 U.S. 28, 37-38 (1978).

_____

impanelment of a
relinquishment

second jury and no second

There was no

verdict, thus no

of the valued right to a particular tribunal,

no enhancement of the risk

of an erroneous verdict, and none

of the expense or the ordeal of a subsequent prosecution.

Even if we

assume that the further

Vavlitis on the original

of the

prosecution of

indictment following the

superseding indictment constituted a

dismissal

reattachment of

jeopardy, we would not find a double jeopardy violation.

district court
resolving
Although

dismissed the superseding

any

factual

the trial could

issue

in

The

indictment without

favor

of

have proceeded on

the

accused.

the superseding

-77

indictment,
(5th Cir.
also
____

see United States

___ _____________
1990), cert. denied,
_____ ______

Garland
_______

(affirming

v.

v. Boruff, 909
______
111 S. Ct. 1620

Washington, 232
__________

conviction despite

lack

U.S.

642,

F.2d 111, 118

(1991); see
___
644-46 (1914)

of arraignment

because

accused, who had

to

prepare

right),

defense,

the court

that Vavlitis
had

notice of charges and

was not

been arraigned.

dismissed the
could

have

Double

such a

Clause.

any substantial

superseding indictment

that if

as Vavlitis

appealed

of

on the indictment on

We note

case,

Jeopardy

deprived

dismissed the

would be tried

adequate opportunity

ruling
See
___

which he

the trial

requested, the
without

Scott,
_____

so

court had
government

violating the

437

U.S.

at 98-99

(holding that defendant who obtained dismissal of proceedings

on grounds unrelated to factual guilt or innocence suffers no
injury under

Double Jeopardy Clause if

government appeals).

A fortiori, the continuation

___________

of the prosecution

same

violate

fact-finder

did

not

the

before the

double

jeopardy

prohibition.
Vavlitis's
contained

next argument

is that

different

allegations,

materially

variance of proof
resulted

from

unfairly

prejudiced the

counsel failed

the

and an improper

to

midtrial

the indictments
so

that

amendment of the

substitution,

defense.

specifically raise

We

note
these

and

charges

that

this

that

defense

issues

below.

Assuming these issues were preserved, we find no error.

-88

of proof.

In

the first place, there was no material variance

variance occurs when the proof differs from the

allegations in the
F.3d

indictment.

456, 462 (1st Cir.

reversible

only

"'substantial

if

1993).

it

rights'":

United States v. Fisher,

______________
______

has

variance is material and

affected

to be

the

defendant's

informed of the charges; and

to prevent a second prosecution for the same offense.

463 (quoting

United States
_____________

v. Tormos-Vega,
___________

Id. at
___

959 F.2d

1103,

1115 (1st Cir.), cert. denied, 113 S. Ct. 191-92 (1992)). The
_____ ______
charging

paragraphs

of

the

superseding

and

original

indictments in this case alleged that the check kiting scheme

enabled Vavlitis to obtain "$1,615,968.00 more or less, owned
by and
Bank

under the
of New

custody and control

England."

The

of Atlantic

Bank and

original indictment,

on which

Vavlitis was arraigned and convicted, alleged a "net ultimate

loss" of

$932,653.00.

deposits

and withdrawals between

two

banks, so

The

that on the

evidence

showed a

pattern

of

Vavlitis's accounts in the

day his accounts

were frozen, a

total overdraft of $1,615,968.92 existed in his Atlantic Bank

accounts, while

Bank of

New England

registered a

positive

balance

of

$683,292.63.

The

proof

comported

that

the

with

the

charges.
Vavlitis's
improperly amended is

argument

also unavailing.

when the charging terms of

An

charges

were

amendment occurs

the indictment are altered

after

-99

the grand jury

has last passed upon them.

Dunn, 758 F.2d

____

30, 35 (1st Cir. 1985).

are deemed prejudicial per se

______

United States v.
_____________
Midtrial amendments

for the following reasons:

to

preserve the right of the person accused of an infamous crime

to

have a

grand

jury

reprosecution for the

of

the accused

States v.
______

substitution

an

indictment, to

prevent

same offense, and to protect the right

to be informed

Kelly, 722
_____

denied, 465 U.S.

______

vote on

of the charges.

F.2d 873, 876

1070 (1984).

(1st Cir.

Although

See United
___ ______
1983), cert.
_____

the trial

court's

of an indictment alleging a "net ultimate loss"

for an indictment alleging the

the banks literally
not

constitute an

Both

indictments

total loss suffered by one of

altered one of
amendment of
accurately

charges.

There is

court's

finding that

charges

in the

the allegations, it

the

reflected

ample evidence

the

grand

to support the

Vavlitis was

indictment

grand jury's

did

charges.
jury's
district

"well

informed" of

the

he

was arraigned

and

on which

ultimately convicted.
Furthermore, the record does not support Vavlitis's
argument that the midtrial
prejudiced his

defense.

indictment on which

exchange of indictments
Vavlitis had been

he was convicted and

to prepare a defense based on it.

unfairly

arraigned on the
had an opportunity

Only paragraph nine of the

superseding indictment differed from the original indictment,

and

only insofar

as

the

superseding

indictment

did

not

-1010

describe the "net

On the only day of

ultimate loss" resulting from

the scheme.

the trial when the superseding indictment

was

effective, defense counsel said in his opening statement

that the

banks had recouped

witnesses to

money.

elicit that Bank

He

also cross-examined

of New England

funds in Vavlitis's accounts in May 1990.

the

trial did the

existed.
"left

The prosecutor's

the banks

consistent
of the

jury hear

that a

actually held

At

no time during

superseding indictment

opening statement

with the

$1.6

that Vavlitis

million loss"

was just

as

with the evidence and with the charging paragraph

original indictment, as

it was with

the superseding

indictment.

claiming

There is thus no

support for Vavlitis's

arguments

a double jeopardy

violation, a variance

of proof,

and a prejudicial amendment of the charges.

district

court did

not err

in

We hold that the

dismissing the

superseding

indictment in this case, and in allowing the trial to proceed

on

the

original

objection that

his

indictment,

following

client had

not

defense

counsel's

been arraigned

on

the

superseding indictment.
B.
B.

Reasonable Doubt Instruction

Reasonable Doubt Instruction
____________________________
Vavlitis's next

provided an
doubt.

argument is

erroneous jury

that the

trial court

instruction defining

reasonable

The jury instruction on reasonable doubt stated:

It
is
not
government
prove

required
that
guilt
beyond
-1111

the
all

possible doubt, the

test is one of
reasonable doubt. A reasonable doubt is
a doubt based upon reason and common
sense.
It does not mean that the
government has an obligation to prove the
charge in this count to an absolute or
mathematical certainty.
Proof beyond a
reasonable doubt does not mean proof to
the degree of certainty that you have
that the sun will rise tomorrow or if you
add five and five you will get ten. It
__
does not mean the doubt in the mind of a
_________________________________________
juror who is looking for a doubt or
_________________________________________
looking
for
an excuse
to
acquit,
________________________________________
reasonable doubt means the doubt in the
mind of a reasonable juror who is seeking
the truth. It is a doubt based on reason
and common sense.
The test is, are you satisfied that,
acting as reasonable persons and applying
your reasoning to the evidence before
you, you arrive at a conclusion that the
offense as charged has been committed by
the defendant, and are you so satisfied
of that
fact as to leave no other
reasonable
conclusion
possible.
Reasonable doubt may arise because there
is simply not enough evidence or because
you do not accept the evidence that was
offered.
It may be that the evidence is
susceptible
to
one
of
two
interpretations, one favoring guilt, one
favoring nonguilt. If that is the case,
the defendant is entitled to the benefit
of the interpretation that favors not
guilty.
The jury will remember that a
defendant is never to be convicted on

mere suspicion or conjecture. The burden

is always upon the prosecution to prove
guilt beyond a reasonable doubt.
This
burden never shifts to a defendant, for
the law never imposes upon a defendant in
a criminal case the burden or duty of
calling any witnesses or producing any
evidence.
(Emphasis added.)

-1212

Vavlitis avers that the instruction that reasonable

doubt is not "the doubt in the mind of a juror who is looking
for

a doubt or

reduced

the

looking for

government's

an excuse
burden of

to acquit"
proof.

may have

According to

Vavlitis's brief, the instruction "almost urges the jurors to

look askance at any juror" viewing the government's case with
skepticism, and

it

may have

enabled some

jurors to

"brow

beat" any others who were inclined to acquit.

Vavlitis did not make a specific objection at trial
to

this

aspect

of

the

reasonable

doubt

instruction.

Consequently, we review the instruction only for plain error.

See United States v.

___ ______________

Colon-Pagan, 1 F.3d
___________

80, 81

(1st Cir.

1993); United States v. Campbell, 874 F.2d 838, 841 (1st Cir.
_____________
________
1989).

We find no such error.

Considering the propriety

on

appeal, we

context

of

evaluate the

the

overall

challenged

charge.

DeVincent, 632 F.2d

_________

147, 152 (1st

U.S.

We

986

standing

(1980).

keep

of a single

in

See
___

instruction

instruction in
United States
______________

Cir.), cert. denied,

_____ ______
mind that

"[t]hat

v.
449

which,

alone, may fall short of perfection may nonetheless

be tolerable

in the

context

of a

charge which

adequately

instructs the jury on the standard it is to apply."

Although cluttered

with unnecessary

reasonable doubt instruction in this case

the

the

Id.
___

language, the

neither undermined

government's burden of proof, nor caused jurors inclined

-1313

to

acquit

to

be

"brow

beat[en]."

The

trial

court

specifically

instructed

another

to

deliberate

if you

can do

and

agreement,

the

jurors
with

so

"to consult

view

to

with

one

reaching

without violating

an

individual

judgment," but never to surrender an "honest conviction . . .

solely

because

of

the

opinion

of

Instead, the

challenged instruction

mind

jurors.

of the

It

evidence rationally, not

because

your

fellow

jurors."

addresses the

state of

exhorts the
to look

jurors

for an

to view

excuse to

the

acquit,

such a mindset would not produce a reasonable doubt,

but to view the

evidence with the intent to seek

the truth.

"Instructions which thus urge that the jury's decision should

be the product

of a rational thought

'unwisely

emphatic,' have

majority

of

formulation

cases.

(citations omitted);

been upheld

We

constitutes

process, while perhaps

cannot

reversible

in the

say

overwhelming

that

error."

the

present

Id.
___

at

153

see also Watkins v. Ponte, 987 F.2d 27,

________ _______
_____

32 (1st Cir. 1993) (upholding a similar jury instruction).

Vavlitis also
raised at trial,
because it

argues on

appeal an

that the reasonable doubt

did not

define

issue that

he

charge is flawed

reasonable doubt

as that

which

would cause a juror to "hesitate to act on the most important

of

affairs."

"This Court

has

emphasized that

doubt does not require a specific definition."

v.

O'Brien, 972 F.2d

_______

12, 16 (1st

Cir. 1992).

reasonable

United States
_____________
In fact, we

-1414

have

criticized the use

and

we

have

held

of "hesitate to

that

the failure

instruction is not reversible error.

Because

we

recognize

act" instructions,

to

include

such

an

See id. at 15-16.

___ ___

that

we

must

"tolerate a

reasonable range of expression" unless we impose pattern jury

instructions, Watkins, 987 F.2d at 32 (quotation omitted), we
_______
hold that
doubt

the trial court's instruction

was not

instruction
confuse

the

objections.

erroneous.

contains
jury,
Reasonable

We

language
and

note,
that

provides

defining reasonable
however,

that

is unnecessary,
fertile

doubt is a fundamental

grounds

this
could
for

concept that

does not easily lend itself to refinement or definition.

See
___

United States v. Olmstead, 832 F.2d 642, 645 (1st Cir. 1987),
_____________
________
cert. denied, 486 U.S. 1009 (1988).
_____ ______
C.
C.

Evidence of Fraudulent Intent

Evidence of Fraudulent Intent
_____________________________

The final issue

court

erred in

denying Vavlitis's

acquittal at the
motion

for

conclusion of the

judgment

insufficient

on appeal is whether

of acquittal

evidence of

motion

the district

for judgment

government's case.
alleged

fraudulent

that

intent

to

of
The

there was
support

verdict of guilty.
In reviewing a
acquittal,

denial of a motion

we consider the evidence in

the government.

for judgment of

a light congenial to

United States v. Victoria Peguero, 920 F.2d

_____________
________________

77, 86 (1st Cir. 1990), cert. denied, 111 S. Ct. 2053 (1991).
_____ ______

-1515

The evidence

is sufficient

if "any reasonable
___

juror .

. .

could have found the essential elements of the crime beyond a

reasonable
F.2d

doubt."

532, 543

(1st Cir.

(quotation omitted).
reasonable

United States v. Rodriguez Cortes, 949

______________
_________________
1991) (emphasis

in the

original)

"The government need not disprove every

hypothesis of innocence if

the record as a whole

supports a verdict of guilt

Satisfaction
fraud

statute

knowingly

of the mens
____

requires

and with

proof

intent

1344(1); United States

_____________
589

beyond a reasonable doubt."

(1st Cir. 1991).

rea element of
___

that

to

the

See
___

To act

bringing

about
v. Cloud,
_____

denied,
______

110 S.

with "intent to defraud" means

by

inferences

from

Celesia,
_______

945

financial gain

872 F.2d
Ct. 561

established

F.2d 586,

or cheat for the

causing some financial loss to another, or

some

States
______

acted

18 U.S.C.

v. Rodriguez-Alvarado, 952
__________________

to act "with the specific intent to deceive

purpose of either

the bank

defendant

defraud.

Id.
___

846, 852

(1989).

circumstantial
facts

F.2d

to

n.6 (9th

759

United
______

Cir.), cert.
_____

Fraudulent intent
evidence and

and situations.

756,

oneself."

(4th

Cir.

by

may be

reasonable

United States v.
______________
1991);

see also
_________

contains

evidence

Rodriguez-Alvarado, 952 F.2d at 589.

__________________
The

record

in

this

case

generating a reasonable inference of knowledge and fraudulent

intent.

The evidence that Vavlitis was a business person who

-1616

had borrowed

more

than a

million

dollars from

the

banks

indicates that he was generally knowledgeable about financial

matters and banking.
described

in the

Vavlitis set up the commercial accounts

indictment

ostensibly to

serve

separate

business interests; presumably, transactions between accounts

should not have been frequent.

In a two

month period within

the time frame alleged in the indictment, March through April

1990, Vavlitis

deposited over

seven

accounts

means

that on

banking

day,

another

of

into another

450 checks
of the

average, Vavlitis
drawn from

these

one

of

According

of

these

England,

holdings for

two

which

account activity.

of

one

This
per

accounts

into

the

movement of

to a witness from Bank

accounts

would expect

Because

in

the

ten checks

the seven

accounts, resulting

one of

seven accounts.

deposited

approximately $69 million.

New

from

to

Vavlitis wrote

related to
see

very

land
little

checks to

third

parties while he was making deposits, the deficit between the

amount

of funds

he actually

had

and the

amount of

credited upon each deposit increased each day.

in this

two month period,

funds

Day after day

there were insufficient

funds in

these

accounts

notwithstanding
secured

to
the

cover

the

existence

loans Vavlitis

checks
of

may have

any

Vavlitis
other

maintained

wrote,

accounts
at the

or

banks.

Virtually all deposits (99.8%) into these seven accounts were

from one of the other

seven accounts, rather than from third

-1717

party

sources.

reasonable

juror

could

infer that

no

legitimate business practice accounted for this pattern.

An expert witness, FBI Special Agent Daniel Dubree,
described a

prototypical check

kiting scheme

to the

jury,

analyzed the activity in the seven accounts, and

opined that

Vavlitis's

constituted

check

frenetic

kiting.

accounts

deposits

He explained

and

withdrawals

that the

served as intermediary

Bank of

New England

accounts to create

a float

period for checks circulating in and out of the Atlantic Bank

accounts.
persisted,

For

this

reason,

the

check

kiting

even though Bank of New England, suspecting check

kiting, notified Vavlitis in late January 1990 that it

no

scheme

longer honor

checks written

against

would

uncollected funds;

Atlantic Bank

continued to credit

checks were deposited

overdrafts

the date

until the accounts were frozen and the

Dubree

testified that

Vavlitis's transactions followed a pattern of

transfers from

one

exceeded

his accounts on

account

appeared to

into

$1.6 million.

another

specified

be no accident, and

account,

that

that it would have

this
made it

easier for Vavlitis to track how much he needed to deposit to

cover checks he had already written.
We

acknowledge that

check kiting scheme does

specific

intent

not as a

necessary

Rodriguez-Alvarado,
__________________

952

"[t]he

for

F.2d

existence of

matter of law imply"

a

at

mere

bank
589.

a
the

fraud

conviction.

But

considering

-1818

Vavlitis's business
Bank of New England,

experience, the notice he

the size of the Atlantic Bank loss, the

intricacy and sophistication

of

a legitimate purpose

juror could conclude

received from

of the scheme, and

for the transactions,

that Vavlitis acted with

the absence
a reasonable
the requisite

knowledge

and specific

inflate his

intent to

account balances and

hold that the

use the

Therefore,

conviction is,
Affirmed.
Affirmed.
_________

-1919

period to

to defraud the banks.

trial court properly denied

for judgment of acquittal.

float

We

Vavlitis's motion
Vavlitis's