(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-40675
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN AURELIO CUDA and JAMES RICHARD CUDA,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
July 7, 1995
Before DAVIS, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
John Aurelio Cuda and James Richard Cuda appeal their
convictions, after a jury trial, of mail fraud, bank larceny, and
conspiracy to commit bank larceny. They raise numerous issues,
the most significant being the existence of probable cause to
arrest, an alleged violation of the Speedy Trial Act, and the
application of the amended Bank Robbery Act of 1934, 18 U.S.C.
§ 2113. They also challenge several evidentiary rulings, the

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sufficiency of the evidence on all counts, and the enhancement of
their sentences. Because we find that the officers had probable
cause, the addition of a corporate defendant extended the time of
the running of the Speedy Trial clock, the Bank Robbery Act
covers the Cudas' conduct, and the other arguments are meritless,
we affirm.
I.
James and John Cuda preyed on the elderly. Their modus
operandi was to buy lists of people who responded to mailings such
as sweepstakes entries and then contact them by mail or phone with
"investment" opportunities that offered too-good-to-be-true returns
and were run by shell corporations. While the deals wore the
veneer of respectability, they inevitably failed, leaving their
investors with large losses. Typically the Cudas targeted the
elderly, persons often with large amounts of cash to invest and
limited ability to protect themselves.
The Cudas' latest machinations came to a close on May 6, 1993,
when Beaumont police arrested them after they had attempted to
assist an octogenarian close an approximately $100,000 account at
a local bank. Bank employees had became suspicious after John
Cuda, accompanied by an elderly woman, Mrs. Dickson, had asked that
Mrs. Dickson's account be closed and a cashier's check be made out
to Home Equity Consulting Group ("Home Equity"). Believing that
the somewhat feeble-minded woman, whom they knew well, was being
swindled, the employees called the police.

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3
The police, after a short investigation, arrested John Cuda,
when they determined the elderly woman did not appear competent.
They also arrested James Cuda, who had been waiting in a car
outside the bank. They impounded the Cudas' vehicle and seized two
briefcases, which contained, along with other documentary evidence
detailing the Cudas' business dealings, a lead sheet on Mrs.
Dickson that stated "Thursday go see," "Jumbo CD $100,000," and
"Talk Texan to her."
After arresting the Cudas, the police contacted the FBI, which
in turn discovered that the Cudas were connected with four fraud
cases in California. Further investigation revealed that James had
been arrested in Florida for defrauding an elderly woman but that
those charges had been dismissed, as the state statute under which
James had been charged was declared unconstitutionally vague. See
Cuda v. State, 639 So. 2d 22 (Fla. 1994).
Because of the interstate nature of these activities, a
federal indictment was sought. The Cudas were charged with mail
fraud, 18 U.S.C. § 1341, bank larceny, 18 U.S.C. § 2113(a), and
conspiracy to commit bank larceny, 18 U.S.C. § 371. The scope of
the indictment covered not only the Cudas' dealings in Texas, but
also those in Florida and California. Two of their corporations,
Rancho Santa Fe Developing Corporation and Home Equity, were also
charged in superseding indictments.
At trial, the government's proof consisted primarily of
documents concerning the Cudas' corporate "family" and the
testimony of and about several people who had lost money in

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ventures with the Cudas. The theory of the government's case was
that the Cudas were frauds; they, in part using the U.S. mail, had
swindled numerous elderly victims by convincing them to invest in
sham ventures; and the Cudas had attempted to do the same to Mrs.
Dickson, thus committing bank larceny. The Cudas' defense was that
their businesses were legitimate, their investments sound, and they
relied in good faith upon professionals in the field. Losses, if
any, were caused by a downturn in the California real estate
market. Their deal with Mrs. Dickson was the same. The jury
returned a guilty verdict on all counts.
II.
The Cudas first contend that their initial arrest was a
violation of their Fourth Amendment rights, as they argue that the
police lacked probable cause to believe that a crime was being
committed. Our review of such claims is well established.
Probable cause to arrest "exists when the facts and circumstances
within the knowledge of the arresting officer are sufficient to
cause a person of reasonable caution to believe that an offense has
been or is being committed." United States v. Rocha, 916 F.2d 219,
238 (5th Cir. 1990), cert. denied, 500 U.S. 934 (1991); see also
Beck v. Ohio, 379 U.S. 89, 91 (1964). While the existence of
probable cause is a question of law, reviewed de novo, United
States v. Hernandez, 825 F.2d 846, 849 (5th Cir. 1987), cert.
denied, 484 U.S. 1068 (1988), we view the evidence in the light
most favorable to the prevailing party. United States v. Ponce, 8

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F.3d 989, 995 (5th Cir. 1993).
Here, the police were responding to a call from bank personnel
who were familiar with Mrs. Dickson's feeblemindedness. The police
thus knew that Mrs. Dickson was of questionable mental competence
and that a stranger was "assisting" her in making a large with-
drawal from her account. Their independent investigation confirmed
these facts.
Testifying at trial, the police officer, who talked to Mrs.
Dickson at the bank, politely described her demeanor as "confused."
The investigation also revealed that the Cudas were from out of
state and were promoting large investment opportunities through the
mail and that some of the documentation misspelled John Cuda's
name. Indeed, one form letter that John Cuda showed the police
stated that Mrs. Dickson was giving Home Equity a check for
$1,000,000. That letter was signed by Mrs. Dickson and dated
May 6, the day of the arrest. Finally, an officer testified that
James Cuda was waiting outside the bank in a rental car, parked in
a "get away position."
While we do not stress any one of these facts, we find, under
these circumstances, that the police had probable cause. In the
totality of the circumstances and judged from the point-of-view of
an experienced officer in the field, these facts would lead a
reasonable person to believe that the Cudas were attempting to
defraud Mrs. Dickson.

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III.
The Cudas complain that the government failed to bring them to
trial within the time limits set forth in the Speedy Trial Act, 18
U.S.C. §§ 3161-74. Specifically, they contend that the government
exceeded its seventy-day limit by indicting them on May 19, 1993,
and not bringing them to trial until April 5, 1994. Our review of
speedy trial issues necessarily requires a careful analysis of both
the total time period and the days excludable under the Act.
Moreover, "[w]e review the facts supporting a Speedy Trial Act
ruling using the clearly erroneous standard and the legal conclu-
sions de novo." United States v. Bermea, 30 F.3d 1539, 1566 (5th
Cir. 1994), cert. denied, 115 S. Ct. 1113 (1995).
The correct computation of the speedy trial clock here depends
upon the application of 18 U.S.C § 3161(h)(7), which allows an
exclusion of "[a] reasonable period of delay when the defendant is
joined for trial with a codefendant as to whom the time for trial
has not run and no motion for severance has been granted." The
Supreme Court, in a footnote, has interpreted this section to mean
that "[a]ll defendants who are joined for trial generally fall
within the speedy trial computation of the latest codefendant."
Henderson v. United States, 476 U.S. 321, 323 n.2 (1986). We have
adopted this rule, albeit first in a footnote, see United States v.
Welch, 810 F.2d 485, 488 n.1 (5th Cir.), cert. denied, 484 U.S. 955
(1987), but latter more explicitly, see Bermea, 30 F.3d at 1567.
Accord United States v. Jones, No. 94-10091, 1995 U.S. App. LEXIS
14591, at *4 n.4 (5th Cir. June 14, 1995) (citing Bermea, 30 F.3d

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at 1567).
Under this rule, no speedy trial violation occurred. While
the government concedes that the seventy-day deadline would have
ended on August 1, 1993, the indictment was dismissed two days
earlier. This event stopped the clock. § 3161(h)(6). Seventeen
days later, the government reindicted the Cudas and added two new
defendants, which were corporations controlled by them. At this
point, the allowable time period for the set of defendants became
seventy days. As the bulk of time between August 1993 and July
1994 was excluded because of pending motions, see § 3161(h)(1)(F),
the clock was further tolled and did not run over the limit. See
Jones, 1995 U.S. App. LEXIS 14591, at *4. In sum, as the accepted
rule is that the time for all codefendants is measured by the last
defendant whose time will run out, the government avoided violating
the Act by adding the new defendants.
IV.
The Cudas argue that the evidence was insufficient as a matter
of law to support their convictions on all three counts. We have
carefully reviewed the record and disagree. Under our deferential
standard of review))examining the evidence in the light most
favorable to the verdict and upholding the conviction if a rational
trier of fact could have found the essential elements of the
offenses beyond reasonable doubt))we find the evidence on the mail
fraud and the conspiracy to commit bank larceny counts was more
than sufficient. See United States v. Cardenas-Alvarez, 987 F.2d

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1129, 1131 (5th Cir. 1993). As the question of the proper
application of the bank larceny statute, however, presents a closer
question, we review that analysis in some detail.
The amended Bank Robbery Act of 1934 provides, in relevant
part, that
[w]hoever enters or attempts to enter any bank . . . with
the intent to commit in such bank . . . any felony
affecting such bank . . . and in violation of any statute
of the United States, or any larceny shall be fined under
this title or imprisoned not more than twenty years, or
both.
18 U.S.C. § 2113(a) (emphasis added). This entry provision was
"inserted in the statute to cover the situation where a person
enters the bank for purpose of committing a crime, but is frus-
trated for some reason before completing the crime." Prince v.
United States, 352 U.S. 322, 328 (1957). Therefore, the "heart of
the crime is the intent to steal." Id. The Cudas were indicted
under this subsection.
Successful larceny is also made an explicit crime under the
Act, albeit under a different subsection. Section 2113(b), in
part, provides:
Whoever takes and carries away, with intent to steal or
purloin, any property or money or any other thing of
value exceeding $100 belonging to, or in the care,
custody, control, management, or possession of any bank,
credit union, or any saving and loan association shall be
fined under this title or imprisoned not more than ten
years, or both.
That subsection proscribes not only the common-law definition of
larceny but also the crime of false pretenses. Bell v. United
States, 462 U.S. 356, 361 (1983). False pretenses is defined as
where "a thief, through his trickery, acquired title to the

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1 The crime defined by § 2113(a), however, is technically not attempted
larceny. To read the statute so presents the incongruous result that a
successful larcenist faces a 10-year sentence under § 2113(b), while the
unsuccessful larcenist faces a 20-year maximum sentence under § 2113(a).
Instead, the distinguishing characteristic between the two sections is that
§ 2113(a) requires a showing of an improper intent before entering the bank,
while § 2113(b) does not. See Robinson v. United States Bd. of Parole,
403 F. Supp. 638, 642 (W.D.N.Y. 1975).
9
property from the owner." Id. at 359. Of significance here is
that in a prior case, Jerome v. United States, 318 U.S. 101, 103-04
& n.4 (1943), the Court indicated that the word "larceny" in
§ 3112(a) refers to the criminal acts proscribed by § 3112(b). See
also United States v. Clark, 776 F.2d 623, 626 (7th Cir. 1984)
(holding that § 2113(a) incorporates definition of larceny in
§ 2113(b)), cert. denied, 470 U.S. 1006 (1985); United States v.
Registe, 766 F.2d 408, 410 (9th Cir. 1985) (holding that § 2113(a)
covers larceny by false pretenses).
Accordingly, even though Cuda's plan was unsuccessful, and he
did not "take[] and carr[y] away" the money as required by the text
of § 2113(b), section 2113(a) still reaches his conduct. John
Cuda's actions at the Beaumont bank constitute an attempt to commit
larceny by false pretenses and thus satisfies the definition of
larceny under § 2113(a) and (b).1 He misrepresented to the bank
officials that Mrs. Dickson wanted to withdraw significant funds
and that the check should be made payable to Home Equity. As the
bank officials discovered, however, Mrs. Dickson had no such
specific intent and did not understand the transaction she
allegedly was requesting. In that situation, Mrs. Dickson's
presence did not make Cuda's pretenses true, but rather was the
very trick he was using to mislead the bank into giving him the

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2 Under the plain language of § 2113(a), the phrase "affecting such
bank" does not modify the phrase "any larceny." Accordingly, we do not
explicitly analyze whether the Cudas' actions "affected" the bank.
10
money.
Moreover, the government's evidence and Cuda's past conduct
more than support the inference that they intended to commit such
a larceny upon Mrs. Dickson before entering the bank. It is
uncontroverted that John Cuda's actions were within a bank.2
Therefore, the government's showing here was sufficient to meet the
elements of § 2113(a), and we hold that the evidence was sufficient
to find the Cudas guilty of bank larceny.
V.
Finally, the Cudas raise numerous evidentiary objections.
They protest that the district court improperly admitted extrinsic
offense testimony of other people who lost money by investing with
the Cudas. As the jury found, however, the frauds about which the
victims testified were part of a single mail fraud scheme.
Therefore, that testimony is not extrinsic, but rather is admissi-
ble as direct evidence of the unitary scheme.
The Cudas also object to the testimony of Paul Gonzales, a
former news reporter. In 1985, Gonzales had gone undercover to
investigate "boiler room" operations that offered scam investments
in commodity futures. His employers were the Cudas. The govern-
ment concedes that Gonzales's testimony is extrinsic but responds
that it is admissible nonetheless to show the Cudas' fraudulent
intent, see FED. R. EVID. 404(b), and that its probative value was

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not substantially outweighed by its prejudicial effect. We agree.
The Cudas also complain that much of the victims' testimony is
inadmissible hearsay. The Cudas argue that Diane Wooten, the
daughter of one victim, had no personal knowledge of her mother's
financial dealings, and her testimony regarding those dealings was
inadmissible hearsay. As this evidence was merely cumulative of
the testimony of other victims, however, we find that any hearsay
contained in her testimony was harmless. See FED. R. CRIM. P. 52(a).
The testimony of Glen Norris, an economic crimes investigator
for the State of Florida, was based upon either admissible
documents under the business records exception, FED. R. EVID.
803(6), or opinion evidence of an expert witness in the area of
economic crimes. Nor did the district court abuse its discretion
in allowing Norris to testify about various missives between James
Cuda and one victim, and several promissory notes and deeds. These
documents were not admitted to prove the truth of the matters
asserted, but to show the victim's relationship with James Cuda and
demonstrate their misleading nature.
The Cudas object to the fact that a bank teller was permitted
to give her opinion of Mrs. Dickson's mental state. As this
witness had regular dealings with her, such testimony was properly
admitted as lay opinion evidence under FED. R. EVID. 601 and 701.
The Cudas argue that the district court abused its discretion in
denying their motion to have Mrs. Dickson examined by a psychia-
trist, especially as the district court permitted the government to
proffer the testimony of Dr. Bowling that she suffered from senile

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dementia.
We, however, do not find that the district court abused its
discretion, as requiring a witness to undergo a psychiatric
examination is a significant intrusion on privacy and dignity. See
United States v. Jackson, 576 F.2d 46, 49 (5th Cir. 1978) (noting
that a psychiatric examination "may seriously impinge on a
witness's right to privacy"). At the time of trial, Mrs. Dickson
was eighty-six years old, residing in a nursing home, and under the
court-ordered guardianship of her granddaughter. Moreover, such an
intrusion was unnecessary here, as there was an abundance of lay
testimony regarding Mrs. Dickson's deteriorating condition.
Finally, the Cudas argue that the district court erred in
sentencing them by including $750,000 that Mrs. Harvey purportedly
lost in determining their offense level. This amount, however, was
properly included, as the Cudas were convicted of a single mail
fraud scheme, part of which included the venture in which Mrs.
Harvey lost her money.
AFFIRMED.

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