United States v. Ayewoh
2010 U.S. App. LEXIS 25370
| 1st Cir. | 2010Background
- Ayewoh was convicted in the District of Puerto Rico of bank fraud under 18 U.S.C. § 1344 and a related forfeiture count; he challenged whether BPPR was FDIC-insured at the time of the crimes, his mens rea, and misrepresentations to BPPR.
- Ayewoh operated OIPA, Inc. to provide HUD-inspection services and obtained a BPPR merchant account with a POS device; he processed unauthorized manual transactions using multiple card numbers.
- BPPR froze the account after detecting suspicious activity, and observed large transactions followed by chargebacks from issuing banks; BPPR recovered about $100,000 and suffered a net loss of $19,644.
- Trial included an FDIC certificate dated January 2, 1999, plus testimony from BPPR’s record custodian; the district court framed the evidence as showing present-insurance status at trial.
- Ayewoh argued the insurance element was not proven beyond a reasonable doubt; the government argued the combination of the pre-offense certificate and trial testimony sufficed; the court ultimately upheld the conviction on FDIC-insurance evidence.
- The panel acknowledged the dissenting view but majority held the evidence sufficient to infer FDIC insurance during the offense period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDIC insurance proof for BPPR at offense time | Ayewoh contends insufficient proof BPPR was insured in 2006 | Ayewoh argues the 1999 certificate is too stale to prove present insurance | Sufficient evidence to infer insurance during March–April 2006. |
| Mens rea under bank fraud § 1344 | Ayewoh argues no knowledge BPPR would be defrauded | Ayewoh asserts no knowledge of defrauding BPPR specifically | Evidence showed knowledge that his actions exposed a bank to a risk of loss; mens rea satisfied. |
| Misrepresentation element of § 1344 via POS device | Ayewoh claims entering card numbers is not a representation | Ayewoh’s implicit authorization via card numbers is a misrepresentation | Sufficient to conclude misrepresentation by acting as if authorized to withdraw funds. |
| Fifth Amendment – closing remarks about silence | Defense argues prosecutor commented on silence improperly | Comments were fair responses to defense theory under Robinson framework | Comments did not violate the Fifth Amendment; they were a fair response. |
Key Cases Cited
- United States v. Wilder, 526 F.3d 1 (1st Cir. 2008) (review of sufficiency in light of evidence as a whole; jury suffices with plausible record)
- United States v. Brandon, 17 F.3d 409 (1st Cir. 1994) (intent to harm a bank need not target a federally insured bank; exposure to risk suffices)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on comment on defendant's failure to testify)
- United States v. Robinson, 485 U.S. 25 (1988) (fair-response exception to Griffin for comments responding to defense arguments)
- United States v. Sliker, 751 F.2d 477 (2d Cir. 1984) (illustrative of admissible inferences about bank-insurance status when time lag exists)