60 F. Supp. 3d 294
D.N.H.2015Background
- Secret Service, impersonating an associate, lured Adekoya into an ATM "cashout" scheme using emails; Adekoya recruited four people to retrieve 200 encoded ATM cards and PINs in New Hampshire.
- The Secret Service provided blank, unusable plastic cards as part of a sting; the four co-conspirators were arrested attempting to use them; Adekoya was arrested the next day.
- Adekoya was charged with bank fraud (18 U.S.C. § 1344) and conspiracy to commit bank fraud; after the government rested, he moved for judgment of acquittal under Rule 29 arguing no bank was actually victimized or exposed to risk of loss.
- The district court reserved ruling on the Rule 29 motion, the jury convicted, and the court then considered whether § 1344 requires that the defendant’s scheme actually be capable of causing bank loss or merely be one that would, if executed, target a bank.
- The court concluded prior case law requires that the defendant’s scheme, if realized, would threaten a bank (not a third party), but does not require that the scheme was actually capable of succeeding; therefore the evidence sufficed to deny the Rule 29 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1344 requires proof that a bank was actually victimized or exposed to risk of loss | Prosecution: conviction may stand if scheme targets or threatens a bank; intent and nexus to bank are key | Adekoya: sting cards were unusable so no bank was victimized or exposed to risk of loss; insufficient proof | Court: prior cases require the scheme would, if realized, threaten a bank — not that it actually could succeed; conviction stands |
Key Cases Cited
- United States v. Brandon, 17 F.3d 409 (1st Cir.) (discusses elements of § 1344 and nexus to banks)
- United States v. Blackmon, 839 F.2d 900 (2d Cir.) (articulated requirement that bank be victimized or put at risk to limit § 1344 scope)
- United States v. Davis, 989 F.2d 244 (7th Cir.) (refused overly broad application of § 1344 to schemes targeting non-bank victims)
- United States v. Leahy, 445 F.3d 634 (3d Cir.) (explains additional requirement of intent to cause bank loss when bank is not primary target)
- Loughrin v. United States, 134 S. Ct. 2384 (U.S.) (clarifies § 1344 subsections and statutory interpretation)