from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:14-CR-00136-GKF-2)
L. Derryberry, Research and Writing Specialist (Julia L.
O'Connell, Federal Public Defender, William Patrick
Widell, Assistant Federal Public Defender, and Julie K.
Linnen, Assistant Federal Public Defender, with him on the
briefs), Office of the Federal Public Defender, Tulsa,
Oklahoma, for Defendant-Appellant.
Joel-lyn A. McCormick, Assistant United States Attorney
(Danny C. Williams, Sr., United States Attorney, with her on
the brief), Office of the United States Attorney, Tulsa,
Oklahoma, for Plaintiff-Appellee.
PHILLIPS and BALDOCK, Circuit Judges. [*]
PHILLIPS, Circuit Judge.
convicted Bruce Carlton Wright of conspiracy to commit bank
fraud and of eleven counts of bank fraud arising from his
participation in a scheme to submit false draw requests and
invoices to obtain bank loans. The district court sentenced
Wright to thirty-three months' imprisonment and ordered
him to pay $1, 094, 490.60 in restitution. Wright raises
several issues on appeal, concerning jury instructions,
withheld impeachment evidence, and bank loss and restitution
amounts. We affirm.
jury sitting in the Northern District of Oklahoma indicted
Wright and Alan Blaksley on one count of conspiracy to commit
bank fraud in violation of 18 U.S.C. §§ 1349 and
1344 (Count 1), and on twelve counts of bank fraud in
violation of 18 U.S.C. § 1344(1) (Counts 2-13). Before
trial, Blaksley pleaded guilty to conspiracy to commit bank
fraud and agreed to testify as a government witness at trial.
Wright chose to defend against the charges at trial.
the time charged in the Indictment, June 2007 to July 2008,
Wright served as president of five Oklahoma limited liability
companies owned by Blaksley. One of these companies, Group
Blaksley Properties, LLC, obtained a $6.5 million loan from
International Bank of Commerce (Bank) to develop a
senior-living community in Bentonville,
Arkansas. Sometime during the development of the
property, Wright and Blaksley agreed to a fraudulent scheme
in which Wright submitted fraudulent monthly draw requests
for unperformed work and duplicate draw requests for work
already performed elsewhere. As part of their scheme, Wright
and Blaksley included with the draw requests pictures of
construction work supposedly (but not) completed at the
Bentonville project. Misled by the false information, the
Bank paid $1, 176, 490.60 in draw requests to Group Blaksley
Properties. In fact, Group Blaksley Properties had performed
little work on the Bentonville site. Blaksley pocketed almost
all of the $1, 176, 490.60 for his personal use, and Wright
obtained incidental benefits.
April 2008, the Bank inspected the property and saw that
Group Blaksley Properties had done much less work than
represented. Before 2015, the Bank foreclosed and sold the
Bentonville property, but the record doesn't say how much
it got from the sale.
jury convicted Wright on the conspiracy count and eleven of
the twelve bank-fraud counts. Wright didn't object to the
Presentence Investigation Report (PSR) or any of its
contents, either before or at sentencing. The district court
adopted the PSR's uncontested loss calculation of $1,
094, 490.60, and sentenced Wright to thirty-three months'
imprisonment. Relying also on the PSR's uncontested
restitution calculation, the district court ordered Wright to
pay $1, 094, 490.60 in restitution. Wright appealed.
asserts that the district court erred in five ways: (1) the
district court plainly erred by not including within its
listed elements of conspiracy to commit bank fraud the
necessary element of intent to defraud; (2) the district
court erred in responding to a written question from the jury
during deliberations by directing the jury to consider each
indictment count separately; (3) the district court erred in
denying Wright's Motion for New Trial based on a claimed
Brady violation; (4) the district court plainly
erred in calculating the loss amount under USSG §
2B1.1(b)(1); and (5) the district court plainly erred in
calculating the restitution amount.
review Wright's first, second, fourth, and fifth asserted
errors, to which he didn't properly object in the
district court, under the plain-error standard. United
States v. Faust, 795 F.3d 1243, 1251 (10th Cir. 2015).
Under this standard, Wright must establish "(1) error,
(2) that is plain, which (3) affects substantial rights, and
which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings." United
States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (quoting United States v. Burbage, 365 F.3d
1174, 1180 (10th Cir. 2004)). Plain error affects a
defendant's substantial rights if "there is a
reasonable probability that, but for the error claimed, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." United States
v. Hale, 762 F.3d 1214, 1221 (10th Cir. 2014) (quoting
United States v. Rosales-Miranda, 755 F.3d 1253,
1258 (10th Cir. 2014)).
Wright's Motion for New Trial, his third asserted error
on appeal, alleges a Brady violation, we review de
novo the district court's denial of that motion.
United States v. Velarde, 485 F.3d 553, 558 (10th
The district court didn't plainly err in its jury
instruction listing the elements of conspiracy to commit bank
review the jury instructions "in the context of the
entire trial to determine if they accurately state the
governing law and provide the jury with an accurate
understanding of the relevant legal standards and factual
issues in the case." United States v. Kalu, 791
F.3d 1194, 1200-01 (10th Cir. 2015) (quoting United
States v. Thomas, 749 F.3d 1302, 1312 (10th Cir. 2014)).
argues that the district court plainly erred by not including
"intent to defraud" as an element of conspiracy to
commit bank fraud in Jury Instruction 14. Appellant's
Opening Br. at 13. Because Wright didn't object to this
jury instruction, we review under the plain-error standard.
United States v. LaVallee, 439 F.3d 670, 684 (10th
Cir. 2006). Wright's plain-error argument fails on the
first step of the analysis-he cannot show error. Though the
conspiracy instruction didn't list "intent to
defraud" as an element of the conspiracy, the district
court cured this deficiency by incorporating into the
conspiracy instruction that same intent element from
Instruction 15, which provided the elements of bank fraud.
charged Wright with conspiracy to commit bank fraud, in
violation of 18 U.S.C. §§ 1344 and 1349.
"[C]onspiracy to commit a particular substantive offense
cannot exist without at least the degree of criminal intent
necessary for the substantive offense itself."
United States v. Robertson, 473 F.3d 1289, 1292
(10th Cir. 2007) (quoting Ingram v. United States,
360 U.S. 672, 678 (1959)). And bank fraud requires intent to
defraud a financial institution. United States v.
Gallant, 537 F.3d 1202, 1223 (10th Cir. 2008). In this
circumstance, our circuit's pattern jury instructions
favor listing "intent to defraud" as an element of
conspiracy to commit bank fraud. Tenth Circuit Pattern Jury
Instructions Criminal § 2.19 (Use Note). Here, the
district court's conspiracy instruction neglected to
expressly include this intent-to-defraud element.
so, we disagree with Wright that the district court's
straying from the most proper instruction amounts to error in
his case. See United States v. Knight, 659
F.3d 1285, 1287 (10th Cir. 2011) (in reviewing jury
instructions for error, we read and evaluate them in their
entirety to determine whether the instructions as a whole
fairly, adequately, and correctly state the governing law and
provide the jury with an ample understanding of the
applicable principles of law). Under Instruction 14-the
conspiracy instruction-the district court informed the jury
that it could not convict of conspiracy absent finding that
Wright had agreed with another person to commit "bank
defendant Bruce Carlton Wright is charged in Count 1 with
conspiring to commit bank fraud. It is a crime for
two or more people to agree to commit a crime. To find the
defendant guilty of conspiracy to commit bank fraud
you must be convinced ...