681 F2d 733 United States v. Gardner

681 F.2d 733

UNITED STATES of America, Plaintiff-Appellee,
v.
Alan Jay GARDNER, Defendant-Appellant.

No. 81-5925

United States Court of Appeals,
Eleventh Circuit.

July 29, 1982.

Neil H. Jaffee, Ft. Lauderdale, Fla. (Court-appointed), for defendant-appellant.

John F. Peyton, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, VANCE and HATCHETT, Circuit Judges.

PER CURIAM:

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1

Gardner was convicted under 18 U.S.C. § 10141 of knowingly providing false information to a federally insured bank for the purpose of influencing its actions. In December 1980 Gardner created an overdraft on his corporate account at Gulfstream American Bank and Trust Company and the bank filed a civil suit to recover the amount of the overpayment. Gardner admits, by stipulation, that he induced Gulfstream to defer the civil action by assigning to the bank his interest in accounts receivable based on fictitious invoices. Gardner contends that there was no loan or extension of credit, as required by section 1014, because the overdraft was created and the civil suit was filed before the time the false invoices were tendered as security. Since 18 U.S.C. § 1014 does not require that the false information be furnished before the debt to the bank is incurred Gardner's argument must fail. See United States v. Baity, 489 F.2d 256, 257 (5th Cir. 1973). The district court correctly refused to dismiss the indictment.

2

AFFIRMED.

1

Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of ... any bank the deposits of which are insured by the Federal Deposit Insurance Corporation, ... upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release or substitution of security therefor, shall be fined not more than $5,000 or imprisoned not more than two years, or both

18 U.S.C. § 1014 (1976).