United States v. Gregory Griffin, Jr., 800 F.3d 198

Gregory Griffin ran a scheme using stolen identity (Johnny Jenkins) to open an account at Magnolia Federal and divert about $193,000 in hotel credit-card receipts into that account. He then spent some of the funds.
A 17-count indictment charged bank fraud, wire fraud, aggravated identity theft, money laundering, and conspiracy, alleging Griffin defrauded two federally insured institutions: Magnolia Federal and (erroneously) Bank of America Corporation.
After jury selection but before trial, Griffin moved to exclude references to Bank of America Corporation and to dismiss for lack of subject-matter jurisdiction, arguing Magnolia Federal was not defrauded and that the indictment impermissibly named a bank not involved in the scheme.
The government conceded it would not rely on Bank of America Corporation; the trial evidence focused solely on Magnolia Federal. The district court redacted the indictment to remove references to Bank of America and instructed the jury that Bank of America Merchant Services was not federally insured.
The jury convicted Griffin on all counts. On appeal Griffin argued (1) the redaction and jury instruction amounted to a constructive amendment of the indictment violating the Fifth Amendment grand-jury right, and (2) the evidence was insufficient to show Magnolia Federal was placed at risk of loss, so the court lacked jurisdiction.

Issue	Griffin's Argument	Government's Argument	Held
Constructive amendment of the indictment by redacting Bank of America references	Redaction and jury instruction narrowed the grand-jury charges after return, violating the Fifth Amendment	The court narrowed, not broadened, the indictment; convictions rested on conduct charged (defrauding Magnolia Federal)	No constructive amendment; narrowing was permissible and Griffin was not prejudiced
Sufficiency of evidence that a federally insured institution (Magnolia Federal) was defrauded	Magnolia Federal suffered no loss and as the transferee bank it was not at risk of civil liability; therefore bank-fraud jurisdictional element not met	Government produced testimony and evidence that Magnolia Federal was placed at risk of financial loss by the scheme	Evidence was sufficient to show risk of loss to Magnolia Federal; court had jurisdiction

Stirone v. United States, 361 U.S. 212 (constructive amendment doctrine prohibits broadening indictments after return)
United States v. Miller, 471 U.S. 130 (indictment may allege alternative means; alleging more than necessary does not alone violate grand-jury right)
United States v. Broadnax, 601 F.3d 336 (5th Cir.) (defining constructive amendment vs. variance; conviction must not rest on uncharged basis)
United States v. Nuñez, 180 F.3d 227 (5th Cir.) (narrowing an indictment is not a constructive amendment)
United States v. McCauley, 253 F.3d 815 (5th Cir.) (bank-fraud requires proof that institution was placed at risk of civil liability or financial loss)
United States v. Church, 888 F.2d 20 (5th Cir.) (risk-of-loss requirement may be satisfied even if scheme was unlikely to succeed)
Loughrin v. United States, 573 U.S. 351 (Supreme Court) (cast doubt on necessity of risk-of-loss element in bank-fraud statute)