123332P.pdf   10/22/2013  United States  v.  John Markert
   U.S. Court of Appeals Case No:  12-3332
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Loken, Author, with Bright and Bye, Circuit Judges] 
   Criminal Case - conviction and sentencing. Evidence was sufficient to 
   convict bank president of willfully misapplying bank funds. Defendant's 
   claim that transactions were maladministration of bank's affairs, not 
   criminal misapplication of funds is rejected. Funds were used to 
   camouflage fraudulent transactions and bank suffered harm; it is not 
   necessary that funds leave the bank. Willful misapplication instruction to 
   jury was not error, as it required jury to find misapplication of funds 
   with intent to defraud the bank. Evidence was sufficient to prove an 
   intend to defraud and jury instruction did not need to require jury that 
   actions subjected bank to increased risk of pecuniary loss. Nominee 
   borrowers' ability to repay is not essential to question whether scheme 
   resulted in willful misapplication of loan proceeds and jury instructions, 
   as a whole were not error. The district court erred in determining the 
   amount of loss, by determining the actual loss as opposed to the net loss. 
   The case is remanded for resentencing. Judge Bright dissents on the 
   sufficiency of the evidence to support the conviction.