United States v. Gyanbaah

say on this record that the we cannot deny- its discretion in court abused district motion. See Aetna Cas. &

ing Appellants’ Co., Inc., Aniero Concrete Co. v.

Sur. (2d Cir.2005) (discussing

F.3d Constr., 15); v. Phoenix

Rule Grochowski (2d Cir.2003) (discussing F.3d 16).

Rule

Conclusion reasons, AFFIRM foregoing

For the we judgment of the district court. We Supreme

thank the Court of Connecticut

for its assistance. America,

UNITED STATES of

Appellee, NKANSAH, Defendant-Appellant,

Felix Gyanbaah, David

Kwame

Dosoo, Defendants.

Docket No. 10-2441-cr. of Appeals,

United States Court

Second Circuit.

Argued: Oct. 2011.

Decided: Nov. (Robert Cir.2008), appellant part group of a Ray, on the Bagley Ross M. W. LLP, York, that, brief), beginning early through Au- New Pryor Cashman names, birth, NY, Defendant-Appellant. gust stole dates care, security social numbers from foster Kasulis, P. Assistant United Telemachus and childcare databases. This hospital, (Nicholas & Attorney J. Lewin States to file thousands of formation was used Furman, States Assistant United Jesse M. tax returns in the victims’ fraudulent brief), for Preet Bhar- Attorneys, on the figures, income re- names with fictitious ara, Attorney for the South- States United sulting in tax sent refunds either York, NY, York, New ern District of New group check to the address of a member or Appellee. electronically deposited into a bank ac- WINTER, LYNCH, Before: by group count member. The controlled CARNEY, Judges. Circuit group, expecting about half the refunds to IRS, approved be filed for $2.2 separate in a Judge LYNCH concurs million in fraudulent refunds and ultimate- opinion. $536,167. ly obtained When a refund was in received the form of check made out WINTER, Judge: Circuit victim, a identity-theft group to an mem- appeals Felix from his convic- Nkansah forge payee’s signature ber would jury Judge tion trial before Rakoff after along an endorsement over to the with (i) conspiracy to file false claims with for: particular group The group member. (“IRS”) in the Internal Revenue Service deposit the check into a member (“Count One”); § violation of 18 U.S.C. 286 bank account and would controlled soon (ii) filing false claims with the IRS in money. thereafter withdraw the (“Count Two”); § violation of 18 U.S.C. 287 (iii) in bank fraud violation of 18 U.S.C. Appellant deposits was linked to (“Count (iv) Three”); § aggravated Bank, HSBC, Commerce and Bank of to fraud identity-theft related the bank America. A search of his home and car in charged Count Three violation of 18 information, identity revealed tax stolen (c)(5) (“Count 1028A(a)(l), U.S.C. identity-theft refund to correspondence (v) Four”); identity-theft in violation address, appellant’s victims sent to and a (b)(1) (“Count 1028(a)(7), of 18 U.S.C. computer partially-completed tax with Five”). identity-theft refund made out vic- nearly tim’s name. Other evidence linked

We hold there was insufficient evi- tax returns to an IP fraudulent address appellant’s on dence for conviction Count registered appellant. day, On the same Three and that his conviction on Counts appellant’s one of bank accounts received must, therefore, Three and Four be vacat- two federal tax refunds of several thou- appellant’s arguments ed. We find other appel- sand dollars each. Evidence linked but do not his be without merit address identity-theft lant to out to checks made regarding claim the substantive reason- victims and endorsed over to a “William K. sentence. ableness deposited

Arthur.” These checks were into a Bank of account that appel- America BACKGROUND lant controlled under that name. Viewing light the evidence most on government, Appellant September was arrested favorable see United Chavez, ultimately charged with the five States v. 2008 and being govern- notified of this Upon Count Five of described above. counts ment, identity-theft did not the district court sent the courtroom indictment for commerce, room, jury a reference to interstate deputy clude into the which had al- the crime for which he was an element of ready evening, been vacated for the trial, prior on bail convicted. While retrieve the exhibit. It was still in the he was to Canada where appellant fled original- manila folder which it had been returned to the apprehended later ly housed. The folder was still inside the deal, plea After an aborted States. United given it had Redweld in which been jury January guilty by found he was jury. Because of circumstances sur- 29, 2010, counts. He was sen- on all five location, rounding the exhibit’s the court imprison- to 51 months’ principally tenced likely jury concluded that it was that the through One ment on each of Counts proffer agreement. not seen the had concurrently run and 24 Three and Five to that, jury further found even if court Four to imprisonment on Count months’ proffer, nothing had seen the contained counts. consecutively run to the other and, event, in any nothing in evidence ma- already terial to issue not established trial, government sought to show At usually in the from Nkansah’s own deposits in which were the banks case— testimony. mistakenly Other documents of loss. group were at risk made given jury were found to be similar- Peck of the Secret Service Special Agent ly duplicative already of evidence before testified: jury. transmits the funds When and it comes back as not

be collected a counterfeit check or a accurate or DISCUSSION check, they longer get no will fraudulent appellant’s address each of chal- We they, funds back and most of the those lenges in turn. time, already given have out the funds else. It is with- payee or someone a) Bank Fraud Conviction drawn. Bank that Commerce suf- He also testified sufficiency We turn first to the of the just Mr. fered financial losses “for appellant’s bank fraud regarding evidence the combined total in Nkansah himself but conviction. of the scheme. How- the case” as result familiar that suffi- We note the standard ever, pressed specific about losses when novo, are reviewed de ciency challenges appellant’s suffered banks as a result of Leslie, 1093, v. 103 F.3d United States accounts, Agent Peck could specific use of (2d Cir.1997), but a defendant chal- He not confirm that such losses occurred. lenging sufficiency of the evidence thought that while he also testified burden,” “heavy States v. bears United accepting such banks bore the loss from (2d Cir.2004) Gaskin, 438, 459 364 F.3d fraudulently Treasury obtained deposit for (internal omitted). Ap- marks quotation checks, theory if that he was “unsure” however, claim, pellant’s largely turns correct. of the upon legal definition defendant’s deliberations, During jury govern- proven mind that must be state of jury inadvertently provided ment with of a bank fraud conviction. purposes documents that had not been introduced statute, 18 a standard The federal bank fraud particular, into evidence. provides: was included. U.S.C. proffer agreement form lakis, (1992); executes, knowingly or at- 952 F.2d see also Whoever Blackmon, execute, or artifice— tempts to a scheme v. United States Cir.1988) (“Where the victim is not (1) institution; defraud a financial a bank and the fraud does not threaten the or integrity federally financial of a controlled (2) moneys, to obtain of the or insured there seems no basis funds, credits, assets, securities, or legislative history finding coverage by, or property other owned under 1344(a)(2).”); S.Rep. under section No. of, 98- custody or control a financial insti- (1983), tution, reprinted in 1984 by means of false or fraudulent 3517(bank prom- U.S.C.C.A.N. fraud Stat pretenses, representations, ises; designed ute to “assure a basis for federal prosecution who those victimize these $1,000,000 shall be fined not more than schemes.”) through banks fraudulent imprisoned years, not more than 30 Therefore, convictions for bank fraud are or both. limited to situations where “the defendant Appellant knowingly deception used (1) engaged in a course of conduct de regard with to the bank accounts he con- signed federally to deceive a chartered or (i) opened trolled: he them in the names of insured financial institution into releasing people other the fictional well as Wil- (2) property; possessed an intent to (ii) Arthur; deposited liam K. he by exposing victimize the institution it to fraudulently the accounts checks obtained potential actual or loss.” United States Treasury causing from the United States Barrett, (2d 178 F.3d 647-48 Cir. the bank to seek reimbursement from the 1999). Treasury. however, Appellant argues, government required that the was to prove concurring colleague Our takes serious that he intended to victimize the banks as prove issue with the need to intent to harm opposed Treasury. He claims institution, a financial albeit he concedes there was no evidence of such an intent or that this element is well-established in our actually even that the banks had lost mon- govern- caselaw. We note that the ey. essence, argues he that the banks argued points ment has none of the he were no more victims of his deceptions begins makes and its discussion of this than a bank in which someone opens an following issue with the statement: “The identity account under a false to conceal bank fraud statute was ‘pro- enacted to spouse partner. funds from a or business financial integrity [federally ] tect

Appellant institutions, guaranteed correct financial] and ... open-ended, bank fraud statute is not an assure a basis for Federal prosecution of catch-all encompassing every statute fraud those who victimize these banks through involving a [98-225], transaction with a financial in S.Rep. fraudulent schemes.’ No. Rather, (1983), stitution. a specific intent reprinted [at] 377 requiring proof crime of an intent to vic U.S.C.C.A.N. 3517.” of Appel- Brief timize bank fraud. See Gyanbaah United States lee at United States v. (2d Rubin, Cir.1994). (Nkansah), Apr. 10-2441 Cir. 2011). federally “[A] insured or chartered ensuing goes bank The discussion then must be the actual or intended victim of prove on to underline the need to the scheme.” United States v. Stavrou- harm a intent to financial institution.1 colleague opinion 1. Our language notes that our does not follow literal of the statute. withdrawal. deposits available be prove had to government The surely support these concerns While appellant doubt yond a reasonable detection, of an intent to avoid inference to losses.2 expose the banks intended they probative have no val- actuality, or on this record proven, intent Were A injure intent the banks. ue as to an would be irrele of losses possibility, even depositing appellant’s bank’s detection However, direct evi is no there vant. check fraudulently obtained tax refund intent to victimize appellant’s dence of or not to his arrest whether under would lead accounts opened at which he banks If Trea- exposed was to a loss. the fictitious William name of others or first, noti- sury the fraud it would fraudulently ob detected deposited Arthur and K. efficiency and the bank’s fy the government The Treasury checks. tained irrelevant. The con- detection would be to be drawn relies on inferences therefore are, therefore, probative of versations evidence: of circumstantial pieces from two injure appellant’s intent to the banks. (i) appellant and between conversations (ii) scheme; and in the participants other on the government also relies of the banks to loss exposure actual exposure resulting claimed to losses banks’ deceptions, based appellant’s a result of scheme as circumstantial appellant’s from Agent Peck. testimony largely on intent victimize appellant’s evidence of regard It relies in the the banks. participants other Appellant and we have affirmed bank cases which banks would be discussed which scheme exposure on such fraud convictions based the scheme likely to detect the least and/or of the defendant’s absent direct evidence proceeds from to make the quickest designed expand question colleague's statute in agree also note that our We but liability beyond the wire or mail suffers from criminal of the statute construction literally, persons the statute were en- failing. who also similar Read fraud statutes encompass scheme induc- a fraudulent financial in- dangering the financial health of 98-225, check to the ing write a valid a victim to S.Rep. at 377-78 See No. stitutions. to obtain perpetrator who then cashes (1983), reprinted in 1984 U.S.C.C.A.N. custody or control” "moneys ... under the by hardly the that limit- 3517-18. It is case However, colleague avoids our of a bank. purpose prose- ing the statute to its intended — by adding an ele- reading of the statute harm intended to financial cution of schemes namely, statutory language, ment not in the left bereft of prosecutors are institutions — bank, a lie to the the scheme include that authority. ex- necessary For an immediate view, albeit, harmful to the a lie not opinion appellant's convic- ample, leaves our contrast, language of the stat- bank. standing. three federal felonies tions for "representa- requires only fraudulent ute only because the present issue arises The they be any requirement without tions” Treasury the statute's defi- U.S. is not within Requiring the financial institution. made to See 18 of a "financial institution.” nition thus adds an financial institution a lie to the exhaustively (listing the entities 20 U.S.C. statutory language that is element not in for the qualify as financial institutions statutory pur- presumably inferred from 18). purposes Our decision leaves of title intending of a lie pose. The further element finding institution, allowing a the caselaw by untouched required our deci- harm to the liability drawee sions, injure accurately where intent an inference drawn more clear, fulfilling congres- thereby purpose. banks is that same from protect check- banks from sional intent to 98-225, S.Rep. at kiting No. schemes. See colleague expresses concurring concern 2. Our (1983), reprinted in 1984 U.S.C.C.A.N. 378 gap in reading leaves a of the statute that this Moreover, untouched we leave enabling federal law enforcement the tools of fraudu- protection of banks from the statute's escape prosecution. We many fraudsters to securing loans. practices lent exaggerated. The to be believe that concern However, Indeed, of mind. these cases all banks to loss. until by state alerted scheme, fraudulently Treasury involved a defendant who may the banks sought pay to cause a bank to out to the well have been holders in due course with depositor’s defendant some of a account in the entirely by risk of loss borne the Trea- check, see, e.g., forged sury. cashing See id. Crisci, e.g., United States F.3d example, For appellant opened the Wil- (2d Cir.2001); Barrett, or to liam K. Arthur by providing account releasing release funds for which the insti- passport false as identification. He used liable, tution e.g. presenting falsely was the account from through October 2006 draft, Jacobs, certified see United States v. May least 2008. From October 2007 (2d Cir.1997). Although F.3d 82 through April deposited 2008 he several generally rationale these decisions is fraudulently-obtained genuine but tax re- elaborated, we them hold read where month, fund each checks often withdraw- the direct legal exposure to losses is suffi- ing the balance soon thereafter. The tax well-known, ciently jury may infer refund checks were made out to an identi- expose defendant intended to the bank ty-theft victim, appellant forge to the loss. signature victim’s on the with check However, widely expo- understood endorsement over to William K. Arthur. of a only sure such a case is a fact Appellant would deposit then the check in support sufficient to an inference of the the Arthur deposits account. Some were requisite ATM; state of mind. may Someone made others teller. forge believing well a check that only the genuine checks were Treasury account holder will suffer a loss. The signature checks. The of the final endors- is, therefore, inference not mandatory, but ee, Arthur, K. William authorized permissible. permissible Such a inference signature for the account and was the cannot be extended to cases which evi- signature the bank needed verify dence of the state of mind is absent and take the checks as a holder in due course. exposure the actual of a bank to losses is There is no Treasury evidence of the dis- unclear, remote, or non-existent. See honoring the seeking checks or reimburse- United States v. Rodriguez, 140 F.3d ment from analysis of the banks. Our (2d Cir.1998) (holding that when bank depend does not dispositively finding had no risk of loss because it awas holder that Bank of America was not exposed to in due course and where no other evidence risk of financial loss.3 It is sufficient to intent, showed a bank fraud conviction say that there is not expo- the well-known overturned). must be sure to might loss that support finding a matter, clear, the instant beyond there is no a appellant’s reasonable doubt of well-known, much less exposure of the intent to victimize Bank of America.4 recognized embarassment.”) 3. We have that banks can some In the cases where these reputational times suffer various or other in nonpecuniary recognized, harms are the hold- satisfy direct harms that will bank fraud’s er in due course is also the drawee's they intent element even if a are holder in due enforcing and tire holder in due course status Barrett, course. See 178 F.3d at 648 n. 3 against the negatively impact drawee could (recognizing practical that "banks face ad relationship the bank’s with its drawee cus- consequences potential verse liability and matter, present tomer. See id. In the there is problems they forged when cash checks over evidence, argument by government, no or they may endorsements because ... suffer a any bank atwas risk of such loss. good loss of customer will” or "institutional

751 error, plain plain ap- not error. To establish testimony Peck’s does alter Agent generically pellant He testified show conclusion. must our money if a check is re- lose that banks (2) (1) error; an there is the error Bank lost turned and Commerce obvious, subject rather clear than However, as a result of the scheme. funds (3) dispute; affect- reasonable error did not know wheth- also stated that he he appellant’s rights, ed the substantial money as a any banks result er lost ordinary it which in the case means Treasury specific depositing of appellant’s affected of the court the outcome district checks, specific not a case did know of (4) seriously proceedings; error Treasury dishonored check or where fairness, integrity public affect[s] reimbursement from bank used sought reputation judicial proceedings. and was “unsure” whether by appellant, exposed reimbursing a bank was — Marcus, -, United States v. U.S. checks. Treasury accepting for such Such 2159, 2164, 176 130 S.Ct. L.Ed.2d 1012 testimony murky cannot establish suffi- (2010) (alteration (internal in original) quo- loss exposure well-known ciently omitted). tation marks and citations Trial intent to prove appellant’s victim- deciding courts have “wide discretion in beyond a reasonable doubt. ize banks pursue into inquiry how the effects of information,” extra-record United States v. Therefore, conviction on appellant’s Hillard, Cir.1983), Three overturned.5 As a must be Count “the judge’s regard- trial conclusions his consequence, conviction on Count Four ing the of the evidence effect extra-record identity-theft, which re- aggravated for jury on the are entitled to substantial identity-theft the use of connec- quired fraud, Hansen, weight,” also be tion with bank must over- United States (2d Cir.2010) turned. Fed.Appx. (citing Weiss, United States v. F.2d (2d Cir.1985)). n. 2& b) to Jury Extrinsic Evidence Provided plain There is no error. The dis challenges Appellant next trict court determined the mistaken on in ground “highly convictions proffer did agreement submission of the criminating prof extrinsic material” —his affect appellant’s rights. not substantial jury agreement fer sent to the room —was The basis that conclusion that it was during argues He that the deliberations. highly likely jury was did view the not court have held an district should eviden proffer agreement before recovered impact tiary hearing to on determine that, jury, even seen its However, jury. only appellant already contents were either immaterial or hearing failed to ask for but also such record and therefore harmless. We with the court’s agreed handling district We, therefore, agree. the issue. review However, Appellant was with an aider and abettor. the court's associated similar banks, at other but as is the case in schemes jury aiding abetting and instructions on liabil- scheme, there the Bank of America was no ity only given were on an count. unrelated exposed were evidence these banks Therefore, aiding abetting not have could of loss. risk appellant's been basis bank fraud con- States, Napier viction. v. United 159 F.3d See argues government appellant 5. The also 956, Cir.1998). (6th 960 have been for bank as could convicted fraud

c) trial, Omission Interstate Commerce Ele- government before submitted of Identity-Theft

ment Count proposed jury instructions which the from issue of interstate commerce specifi- was Appellant argues next cally discussed with reference to the iden- requisite omission of the interstate com tity-theft Appellant’s count. counsel nei- merce element from the indictment on objected ther proposed instruction identity-theft, Count Five for see 18 U.S.C. expressed nor surprise at the interstate 1028(a)(7) (c), requires & reversal of that language’s commerce inclusion. Even conviction. review such an We omission this were the first appellant’s time counsel infirmities, for “constitutional notably most became aware commerce interstate alleged whether defect offends the element, he had adequate time to address right Sixth Amendment of the accused to it before trial or to ask for additional time. him, be informed of the charges against There was therefore no harm appel- Fifth Amendment right pros not to be lant’s rights. substantial ecuted without by grand jury, indictment or the Fifth protection against Amendment Nor can appellant prevail on his jeopardy.” double United States v. Wy argument that defendant deprived “[a] (2d 319, Cir.1995) dermyer, 51 F.3d right of his only be tried charges (citations omitted). When, here, by grand jury returned when an essen argument only trial, is raised after “we tial element of charges those has been interpret liberally the indictment in favor altered.” When there is “overwhelming” sufficiency, any prejudice absent in support evidence missing indict defendant,” id., require “a clear show element, ment grand jury surely ing prejudice of substantial to the ac element, have missing found the and the cused—such as a showing that the indict right to be tried on only charges returned ment obviously is so defective that no grand Cotton, jury is not violated. reasonable construction can it be said to 633, U.S. 122 S.Ct. 1781. The evi charge the offense for which conviction appellant dence of engaging interstate had,” (quoting id. at 325 United States commerce via the internet in support of v. Thompson, 356 F.2d Cir. identity-theft is overwhelming. For 1965), denied, cert. 384 U.S. 86 S.Ct. example, IP registered addresses to appel (1966)). 16 L.Ed.2d 675 We have lant were used to prepare fraudulent tax consolidated these elements into a require returns. ment that the omission is reversible plain error, the standard of which is d) Unreasonableness Sentence Cotton, discussed above. United States v. Finally, appellant argues that his sen- 625, 631, 535 U.S. 122 S.Ct. (i) tence is unreasonable pro- because of: (2002); Doe, L.Ed.2d 860 United States v. cedural unreasonableness in the district (2d Cir.2002). 81-82 court’s failure to use an “actual loss” meas- Even if omission of the inter $536,167—rather than a modified in- ure— state language commerce constitutes error million; tended loss measure —over $1 plain, that is impact did not appellant’s (ii) substantive unreasonableness because rights. substantial adequate When “notice his sentence of great- 75 months was much to allow [a to prepare defendant] a de er than that of his co-defendants. provided, fense” is omissions in the indict Doe, ment do not affect substantial rights. Sentences are reviewed for 297 F.3d at n. days 12. At least procedural ten and substantive unreasonable- appellant’s co-conspirators’ tween and his abuse-of-discretion using a deferential ness therefore, States, is, expected. be v. 552 sentences See Gall United standard. 38, 46, 169 L.Ed.2d S.Ct. U.S. CONCLUSION

(2007). are reviewed de Issues of law novo, for are reviewed clear issues fact reasons, foregoing For the we vacate error, law and fact are and mixed issues of Three convictions on and Four and Counts clear or for error reviewed de novo either Otherwise, resentencing. remand for we question pre on whether the depending affirm. See United dominantly legal or factual. Thorn, States LYNCH, Judge, GERARD E. Circuit Cir.2006). concurring concurring in and in the part judgment part: in to the claimed regard

With join I in all of unreasonableness, fully Judge Winter’s the Sen procedural thoughtful except for the Court opinion provide district tencing Guidelines (a) discussion, addressing part to use of actual or greater courts are sufficiency supporting ap- the evidence 261.1, cmt. intended loss. See U.S.S.G. 3(A). pellant’s bank fraud conviction. As to that It was not error for n. therefore section, result, loss, agreeing I in the concur use intended the district court to required prior that reversal is our hold- greater than ac this number was even however, I Furthermore, ings. separately, write to ex- a district court tual loss. my prior those press view that decisions only make a reasonable estimate “need un- predicated are unwarranted and informa given loss” the “available 3(C). judicial injection of an 261.1, wise offense ele- cmt. n. tion.” U.S.S.G. ment that no basis the statute en- has co-conspirators filed re and his Appellant result, million, Congress. acted As our Court but a totaling co-con turns $2.2 wrong disagree- itself side of a finds on the about half testified that spirator Appeals ment the Courts of on the rejected by among expected were to be claims necessary mental to sustain a federal Therefore, fig state an intended loss the IRS. error, fraud conviction. not clear ure of over million is $1 ap it was to find that reasonable because Felix Nkansah conceived and executed expected half of the million pellant $2.2 lying plan money by to steal to the United returns, million, to succeed. filed $1.1 government banks. States and various First, plan proceeded steps. in two appellant’s need not address sub- We co-conspirators per- argument at Nkansah his stole stantive unreasonableness and, people sonal information from real time because the convictions on information, be submitted tax re- using Three and Four must vacated Counts to the Reve- resentencing required. Neverthe- turns their names Internal less, nue falsified income and ad- pro- we note for of future Service with purposes support consequence, a dress information. As he ceedings that several factors refund appellant that is considera- confederates received sentence Treasury, checks from the federal made excess of those of his co-defendants. ble trial, they in whose had payees went whereas his co- out names Appellant Second, by Also, agreed plea presenting deals. filed returns. defendants documents, Nkansah forged while on identification country fled the bail appellant trial, trial, and, pay- in the names of the opened he re- accounts during before banks, federally de- disparity be- ees at several insured peatedly significant lied. A posited Treasury checks into those ac- person himself to be another opening when by falsely endorsing counts them in the person’s account that name and en- payees, names of the and withdrew the dorsing payable a check that person), proceeds from the accounts. The second thereby obtain funds that had been step crucial was of course to Nkansah’s (as custody the bank’s and control Nkan- scam: he in collecting interested did, by sah obtaining a credit in the false wall; Treasury checks to mount on the account and withdrawing the funds thus checks were of value to Nkansah to made available in the form of United the extent he could negotiate them. currency States that had been under the control). bank’s money paid Whether the unraveled,

When the scheme Nkansah bank, out offenses) belonged to the scammer was indicted for (among other or an against account holder § whose ac- violating 18 U.S.C. 1344. That statute drawn, count the check was or a provides: corre- bank, spondent or the drawer of check executes, knowingly Whoever or at- against an account at some other bank execute, tempts to a scheme or arti- should make no difference: under fice— statute, plain words of the if the defendant (1) institution; defraud financial get lies to a bank to cash that is held or he would seem to run afoul of (2) to obtain moneys, law, regardless of whether it funds, credits, assets, securities, or bank or some other party ultimately property other by, owned or under the bears the loss. custody of, or control financial stitution, by means oí or false fraudu- The majority today, however, rules pretenses, lent representations, or the naive wrong, reader is and that Nkan- promises; (1) sah did not violate because shall be $1,000,000 fined not more than statute incorporates requirement imprisoned not more than years, the defendant have an intent to harm the or both. bank him, that he paying deceived into added). (emphasis (2) Id. plain On a reading there is insufficient evidence that statute, of the second section of the one Nkansah had that intention. The naive would think it fits would, Nkansah’s behavior like reader I suppose, react differently proverbial glove. He devised a scheme to these two propositions. The propo- first money to obtain from the banks at which legal sition—the assertion that intent the accounts opened by were making harm the bank required unwar- false —seems representations them, ranted, and obtained cash since requirement no such appears that had been the banks’ hands —“under language of the statute. To the custody Indeed, [their] control.” contrary, above, as discussed the statute’s naive reader would think that the statute’s appear second section would to be written carefully drafter had worded the second imposing to avoid requirement. such a If section to avoid creating any technical is- the statute were limited to the first sec- sues about whether money tion, that a and simply prohibited defrauding fraudster actually obtained belonged banks, to this reading would be understanda- bank, or ble, whether the bank itself though hardly inevitable. “[T]o de- loss; suffer a financial institution,” crime is com- 1344(1), fraud a financial id. mitted when person schemes to lie to a could well be meaning read as to harm the (as did, bank Nkansah representing by taking money. its But the alter- ences, any mon- no check-cashing “to obtain of the almost fraudulent language, native securities, credits, assets, funds, or eys, successfully scheme could be prosecuted. or by, owned under the property other today’s majority, they In fairness to did of, custody control a financial institu- or requirement. not invent this As demon 1344(2), tion,” impli- no §id. contains such by Judge opinion, strated Winter’s this cation. previously adopted Court has the rule that proposition, The on the other second harm required intent to the bank is a Nkansah hand —the factual assertion that element of a The violation 1344. root to intent— was not have such an proven of the rule seems to be United States v. only obviously too true. Whether seems (2d Blackmon, 904-07 Cir. loss on actually or not the scheme inflicted 1988), first interpret our case to opened the bank at which he the accounts There, after relying its enactment. checks, negotiated hardly the it is large on part legislative history, this Nkansah, likely like that a fraudster who Court held that the victim is not “[w]here forged or cashing concocts a scheme for a not bank and the fraud does threaten the checks, fraudulently obtained harbored integrity financial a federally controlled bank, any against particular animus that bank, or insured there no basis in seems the losses from his or cared whether legislative history the for finding coverage on the bank that cashed his scheme fell 1344(a)(2).” under section Id. at 906.1 It against the check or on account holder cases, including espe is written —a re- is because of these whose account check that, under the cially Laljie, sult Universal Commercial United States v. 184 F.3d 180 Code, on depends precise nature Cir.1999), that I concur in the judg obtain profit scheme. His intent is to vacating conviction, ment the bank fraud —“to funds, credits, assets, any moneys, of the agree by as I that the result reached securities, other to in- property” or compelled by is majority precedent. —not our any specific flict loss victim. Once so, Even Blackmon makes clear that the decreed that an intent to harm the bank is requirement of an intent to harm a bank statute, it requirement of would seem judicial has from start a con- been only not that some sorts schemes are struct, expressed suggested not even beyond categorically the reach of the stat- statutory judges language. For (a acknowledges), majority ute result impose requirement without such textual that, requirement also is taken but strong policy basis rationale— demands seriously by judges juries, and not indeed, improvised powerful infer- a rationale so that we can evaded some dubious itself, (quoting language arguably In See 839 F.2d at 902 Blackmon this counts. n. dictum, scheme). necessary description it is much broader than district court's of the case, problem merely was there which involved a some- not was resolve question problem what than that at issue in no intent to harm the bank different —there (unlike case), involving this was no conduct directed case. Blackmon Blackmon, misrepresentation to a bank at all. The result in it seems scheme involved no correct; me, entirely did it cannot be bank and the schemers not obtain Rather, money directly turning a bank. fraud to deceive an individual into from cash, game simply over because the victim had scheme involved face-to-face con her case, get the cash from a bank. In this tended to fleece individual victims. Those however, colleagues got money they Nkansah and his victims obtained the entrust- it, per- money by making by withdrawing illicitly their the bank ed to the fraudsters from fectly making any false the bank. Blackmon thus legally and without false statements to representations, does control result in this case. their own bank ac- from Congress requirement necessary is also must have distin conclude guish criminal from innocent conduct. For requirement part to be of the intended Cleary, in v. example, United States 565 statute, language in- specific and omitted (2d Cir.1977), 43, F.2d we a 45-47 vacated inadvertently, it it or because corporating because, misapplication conviction al of obviously required as a matter is so though defendant the had violated internal truly that it principle goes well-understood bank in to a making rules a loan third saying. without Morissette v. United Cf. party, by the court excluding district erred 261-62, States, 246, 240, 72 342 U.S. S.Ct. recipient evidence that the loan intended (1952) (finding unexpressed 96 288 L.Ed. loan, repay to the which have estab might intent requirement implicit of criminal in lished that the not defendant had intended § light 641 “in of an 18 U.S.C. the unbro- just to harm the but had instead judicial of in all ken course decision con- bank’s by making risky broken the rules a holding states of stituent the Union intent loan. There was no evidence offense, in inherent this class of even when Cleary defendant had received bribes or statute”). in expressed not exchange making kickbacks in judicially requirement A imposed of in- loans, in engaged or otherwise furtive or plausible tent harm the bank be a to behavior, illegal suggesting further that he it example compelling policy of such a a wrongful had not had intent. Id. at 47. distinguish served to criminal from non- Docherty, See also States v. United 468 behavior, criminal as it does 18 under (2d Cir.1972) 989, F.2d (overturning § U.S.C. which covers various crimes § conviction under because insuffi against employees. banks their But as intent), cient abrogated evidence on oth one, applied in cases like the require- this er grounds recognized as United in States or, merely ment in muddies the waters — (2d McElroy, 910 F.2d Cir. case, improperly exonerates a defen- 1990); Evans, United States v. 42 F.3d dant of bank fraud —because such cases (10th Cir.1994). 589-91 it is clear that the has perpe- defendant cases, In properly such we have en- crime, though it may trated a even not be missing requirement forced the intent clear that the bank has itself sustained distinguish 656 in to criminal order from loss, or that defendant understood or innocent A officer may behavior. bank hoped that it would. rules, sidestep ignore bank perhaps in theft, covering Under embezzle bribe, exchange a kickback to facili- ment, misapplication of bank funds tate a loan that borrower has no inten- employee, bank officer or we have insist tion, plausible prospect, or no of repaying. any express statutory ed—without lan sham, When is a the loan harm to the bank guage guide us—that an intent to harm is likely; the schemers have a criminal proven be order to sustain money wrongfully, intent to obtain at the conviction. That insistence motivated in cases, expense of the bank. other how- part by history §of drafting 656: an ever, may a bank officer evade bank’s textual express requirement of such an good-faith internal rules belief that intent aby was edited out of statute willing able to repay, borrower amendment, loan, “technical” and we have kept though and that the not authorized preserve it in order the substance of the by the formal guidelines, bank’s loan will prohibition. Lung (In See profitable United States v. actually be for the bank. Chen, Fong cases, indeed, some Cir. the bank officer defen- 2004). cases, that, But in misapplication may regardless dant even claim criminally rules, manage- had fraudulent Nkansah the bank’s bank’s overt encouraged lend- goal get money His was to which at or even tent. ment winked representations entitled, by borrower no intention of ing supported he was not with inaccurate.) may Such a banker obviously that, that were He knew paying back. rules, and employer’s have violated enrichment, produce his intended some- deceptive con- engaged have may even unjustified loss. There one would bear duct, intent and he criminal lacks but that Nkansah executed a is no doubt the crime de- has committed therefore from various obtain funds scheme § fined in 656. by making representations false banks generous

Thus, overly distinguish majority to criminal intent. The none- with criminals, hold properly we formulation, from bankers the as have applies theless we intent is shown § that criminal under 656 cases, require intent to prior in to an done to an intention only if the defendant had Here, to the the “intent harm harm bank. in The formulation works harm the bank. not between distinguishes the bank” test wrong- a the of because essence such cases conduct, but and non-criminal be- criminal is the intent ful in situations intent these (1) specifically tween criminal conducted harm, in- someone, only victim and the to (2) bank, affect a criminal intended to of the the The function volved is bank. for conduct directed a bank and the criminals, to separate who intend rule is to money obtaining wrongfully purpose of from gain, on another injuxy inflict bank, the to but lying from bank the deception in in the engage who persons the bank or regard without whether any that no one will suffer good faith-belief will the brunt of the someone else bear in cir- guilty loss. be of fraud these To effect, majority’s application crime. the cumstances, a must intend not defendant requirement mens at- expands the rea bank, to its only apply or to lie it of harm taching not to the element way, but also to funds in an unauthorized criminality, but also to the that delimits quarrel have harm the bank. I no with statute, of jurisdictional element that a criminal intent proposition no purpose. where serves such a an element of effect harm on is someone well; § it is inherent violation of 1344as intent, a as requirement wrongful of a or artifice.”2 the idea of “scheme § is in the bank officer cases under an instance judicial implication appropriate deployed the But our have not cases into a unexpressed of an mental element § “intent to harm the bank” under 1344 statute, requirement of mens because con- criminal from non-criminal distinguish concept is so fundamental to our duct, rea an “intent to harm bank” frequently that courts read it criminal law certainly pur- no such requirement sexwes express in the of an There no into statutes pose in this case. is doubt absence innocently misrepresentation was application that the 2. a rule could find under Such If, a would in Cleary, § a while tended to further transaction that 1344 as well. in case like bank, would lack participating obtain the end benefit he she in a course of conduct to pro- any intent. fact is money criminal But critical under the bank’s control—loan bank, an A case such makes the absence of intent to harm. bank officer ceeds—from one, present which defendant represen- false as the to make a aids borrower steal, the de- might prose- a malicious intent to officer be has tation to is he lacked an intent to harm the easily as under 656. fense cuted under case, agree because he neither knew nor cared the absence of I such fall, presents anyone where the ultimate loss intent would be criminal to harm defense; good entirely different issue. faith officer believed See, Staples necessary e.g., prove v. United was that the defen- requirement. States, 619-20, assault, 114 S.Ct. 511 U.S. dant or even knew he intended (1994); Morissette, 128 L.Ed.2d 608 assaulting, a law enforcement offi- 250-63, 342 U.S. at 240. There is S.Ct. officer, cer —let alone the ele- federal respect jurisdic- no such tradition with subjects ment the crime to federal elements, however, because for the tional 684-86, jurisdiction. See id. at 95 S.Ct. government federal to exercise its criminal assault, anyone, Intentional individual, it powers logical- over an is not wrongful; happens that the victim to be a ly person for that to know or necessary legislative federal official creates federal transgressing particu- intend that she jurisdiction but does not make the act larly interest. federal culpable.3 more or less good example is Feo- A United States v. could, course, argue One the ma- —as la, 420 U.S. 43 L.Ed.2d S.Ct. Blackmon, jority suggests this did in court (1975), dealing with assault on a feder- Congress, 839 F.2d at 904-07 —that con- case, al officer. In that the Supreme crime cerned about that could harm the held that an to an Court intent commit solvency federally banks, of insured chose required a assault was element of the of- punish only specifically to crimes directed assaulting of a fense federal law enforce- against sup- such institutions. But this 111; § under ment official 18 U.S.C. posed policy the element that made choice would make little the conduct wrongful. the also officers, But Court held that it sense.4 As with assault on federal universally culpa- "[ejxcept It is not case expressly provided, the that no as otherwise bility requirement jurisdic- culpability required respect any all attaches to is not with to example, solely jurisdic- tional For it fact which a for elements. has been is basis federal tion”). (and wire) held that under the mail fraud statutes, (or wires) the use of the mails must reasonably appears have been at least foreseeable. 4. Blackmon to have made the same See, Maze, 395, e.g., majority United States v. 414 today. U.S. mistake that does That (1974). legislative history indicating 94 S.Ct. 38 L.Ed.2d 603 case cited cases, require Congress But even in such courts do not expanding was concerned with the statutes, specific scope a intent to use the mails. As we of the wire and mail fraud and Blackmon, recognized narrowly. § in "This court un- has on basis read 1344 See 839 ambiguously history held that there is no rea legislative mens F.2d at 906. But the cited requirement jurisdictional purely being as to the in that makes that in case clear cau- element of expansive scope interstate communication under tious about the of mail fraud, Congress the wire fraud statute.” F.2d at wire was concerned that citing Blassingame, process argue United States v. F.2d "due prohibiting and notice (2d Cir.1970). event, 330-31 explicitly, [bank such fraud] conduct rather require there is little through expansion coverage.” reason to mens rea with than court of elements, Id., respect jurisdictional purely quoting H.R.Rep. Cong., to No. 98th 2d (1984). prefer- the omission of such an is element Sess. 4 That is a concern about no- tice, jurisdiction. able rule. See National Re- Nothing Commission on not federal in the Laws, Blackmon, legislative of Study history form Federal Criminal Draft cited in find, § a New nothing of Federal Criminal Code cmt. specifically I have been able to ("Since (1970) jurisdiction only question pres- a addresses the situation us in before case, sovereign power punish suggests of which has the to ent or less makes —much conduct, that, Congress certain harmful it follows require clear—that intended to a degree general, culpabili- specific of an offender’s intent to inflict on financial loss a ty depend upon person does not whether money he does or bank a when obtains from a does not when lying know he commits the offense bank connection with sovereign prosecute which money will be able to a criminal scheme to obtain which him.”); (as part proposal, right. id. of draft he has no of claim adequately protect federally insured of not or institutions protection persons being without able to in- banks from loss Congress be concern to special who, while undertak- prosecute in- criminals not extend to harm complete if did ing property not schemes to obtain under the who did by malicious individuals flicted banks, ignorant of in- are they harm control such care know or whether they whom will harm. A person insouciant about fall on such tended would harm to check fraud that intended to trying a criminal institution. Just as may impose in the end no costs on way may an arrest not bank out of shoot shooting institution the schemer misunder- officer he is care that the know or loss, federal, responsible who will be rather than stands agent at is an (as will perpetrator one that the believes state, so while agency, law enforcement case) damage party may other fact get money some seeking a criminal for the loss. The may leave bank liable by lying the bank from a bank not) (and protecting federally insured finan- goal know or care will typically may require from fall cial institutions loss loss will whether ultimate bank, broadly than prohibition that extends more or on account on another by merely specifically to crimes that are in- history cited legislative holder. contrary. such impose That tended loss. majority is not Congress history shows that enacted Moreover, prov- given the difficulties of “strong federal 1344 because of intent, injecting require- such such a ing integrity the financial protecting in terest it prosecute will make ment difficult to [federally financial] insured institu- Congress surely crimes that would have (1983), 98-225, at 377 S.Rep. No. tions.” Indeed, majority’s to wanted cover. the 3182, 3517. reprinted in 1984 U.S.C.C.A.N. seriously by judges applied rule were and But fact this interest motivated the that prosecutions bank fraud in all juries, statute, provid- the and adopt to Congress very diffi- involving cases checks would be jurisdictional nexus for the federali- ed the Very passing cult. few criminals checks crimes, not zation of this class does en- variously forged payee that involve the scope intended imply Congress that dorsements, signatures, sto- forged drawer to be limited to conduct prohibition the checks, fraudulently or obtained and len the federal interest that that threatened like, clearly specific have the quite the who Congress If had motivated its enactment. that wrongfully money intent to obtain is intended, lim- it would have presumably so control, any have custody in the bank’s frauds, major ited to and would the statute knowledge govern of law that of the rules the various minor check not have covered complex in who bears the risk of loss the doing that a cost of business for frauds are negotiable which instruments system way in their finan- banks and no threaten less most of them care. paid. are Still do integrity. cial Hollywood Clyde Barrow The version asked, robbing a event, may to the have while any an “intent harm still well cash was the bank’s or be- requirement does not serve whether bank” depositor, to the would-be left protecting longed interest in feder- Congressional poor can- farmer when told it was his.5 ally government The insured banks. door, standing Clyde to near script Cut CLYDE to the film Bonnie and See 1967), (Warner guns training the entire bank. A available on Arts Brothers/Seven away, feet some bills http://www.imsdb.com/'scripts/Bonnie-and- farmer stands few Clyde.html: clutched in his hand. Barrow, banking from rules of to It is doubtful whether real law defeat mo- robber, any other actual bank has ever evidence, acquittal tions for insufficient least, say To scrupulous. per- been so prosecutors safely charge can bank fraud intent harm suasive evidence of an to cases which the bank would in fact by. hard bank will be to come injury, juries bear a risk of be can on to counted convict defendants who are majority reality to avoid this tries engaged clearly wrongful shown have suggesting that in some cases an intent conduct, reasonably harm bank be in- can much worrying without about provides the law ferred where actually whether those defendants had loss, bank will bear the and the rule of law proved beyond been reasonable doubt to “widely “well-known” or understood.” actually have intended loss the bank. Maj. Op. majority See at 749-50. The It that few perhaps true defendants provides empirical no evidence that so as to “I argue jury, be bold payment system rule of governing law defraud, I intended to but hoped (let is “well-known” to alone under- “well thought the victims would be by) anyone stood” a small but cadre of customers, bank’s not the banks.” I am bankers, banking lawyers, profes- and law however, cynical, jurors’ ability about negotiable sors who teach courses in and inclination to follow their instructions That struments.6 the Uniform Commer- and base their verdicts on the law and the places cial Code the risk of loss some evidence, many and therefore assume that check accepts frauds the bank that jurors will have a reasonable doubt about provides genuine check no basis to infer proposition dubious that the defendant the criminal depositing check in fact knew or intended that the (let intended) specifically knew alone lied, which par- he rather than some other the bank paying the check would bear the ty, would bear the cost of his But scheme. loss, any more than the fact that the law otherwise, even if I I thought still would would hold the bank as a harmless holder legal think it an system odd that defined in implies due course that the scammer liability rules be only practicable that could knew injury that the would fall on not the on theory judges juries the that and will bank. applying take short-cuts in them. cynic A might long contend that so judges today’s by will enforce allowing rule The mischief of the rule is in limited this an inference anti-bank animus drawn case. Because the loss from Nkansah’s your money put CLYDE: That or the majority bank’s? that the would like to the thesis FARMER: Mine. by giving quiz to a test short to next week’s it, Keep CLYDE: Indeed, then. venire.) case, jury very in this the Id. at 62. government called from the witness Federal Peck, Investigation, Agent Bureau of tes- who my strong It ordinary 6. that intuition most loss, tified that the banks would be at risk of citizens, case, confronted the with facts of this but later that admitted he was unsure wheth- case, or of the in majority converse which the any ultimately er bank had borne loss in conviction, apparently permit would in which government agent charged this case. That a forges signature a criminal the of an account investigating responsibility suspected with for pres- holder on a check in stolen blank and violations of 1344 could offer such ents the check to the drawee 750-51, "murky testimony,” Maj. Op. sug- at slightest have the idea whether the bank is gests liable that should be paying as a matter of law for on verdicts not made to turn the (I empirical supposedly check. admit that I have on no inferences from "well-known” intuition, either, my evidence for but I doubt or “well loss understood” rales of allocation. vendors, signed payments in blank for ultimately by the feder- borne was scheme con- separate writing payee company of a and in as he convicted Treasury, al was husband, diverting that was also crime her thus the serious trolled equally upheld indictment. The charged in the federal funds her own use. We convic- him for practical consequence principal tions bank fraud counts based on the on mandatory checks, of the additional theory the reversal on the that altered-amount identi- aggravated for consecutive sentence the have noticed the because bank should atop theft, piled law be fy which must checks, on the physical alterations fraud, is not added for bank but sentence pay- be liable to Schmeelk bank would mourn may Some to a tax fraud sentence. F.3d ing increased amounts. 184 punish- the additional the elimination of Apparently holding crucial 190-91. ment; think the additional may others fact alterations “were was the glad be mandatory sentence excessive and sufficiently question into visible call reversed; way, either Nkansah to see it authenticity, putting checks’ penalty for his significant avoid a will not maker might have de- notice acts. criminal against preventing fense it and the bank cases, requirement enjoying of a from the status of holder due In other injure may have intent to a bank Id. at 190. But we vacated the specific course.” federal consequences, making scheme, more serious on the second convictions based check fraudulent some prosecution liable because bank would be Worse, the distinc- impossible. schemes paying apparently legitimate check that that are those tion between those signature. bore actual Id. at Schmeelk’s under subject prosecution are not makes little sense. respect, With arbitrary. entirely § 1344is view, Laljie equally guilty In my schemes, violating 1344 for both because exam- hypothetical not invent One need representa- false in each case she made of the illustrate the arbitrariness ples to (misrepresenting tions to the bank Laljie, the case that rule. States United checks in the first scheme amounts of the compels my controls this one and view had misrepresenting checks reversing Nkansah’s my concurrence payable by been made Schmeelk convictions, amply demon- bank fraud fraudulently had inserted payee she Laljie, the evidence point. strates second7), of to obtain part as a scheme defendant, to the jury the find permitted custody and control under the bank’s funds to and secretary one Schmeelk who was A no claim. court to which she had lawful checkbook, money to stole had access seriously the rule that a convic- that took (1) cheeks, altering made by physically beyond § a requires proof tion under 1344 Schmeelk, by signed to Cash and payable that actu- reasonable doubt the defendant amounts, dif- pocketing the the to increase bank, ally opposed to as intended harm the Schmeelk ex- the amounts ference between intending profit himself at the ex- to to paid, the amount the bank pected and hit, (2) up taking the pre- pense had of whoever winds taking checks Schmeelk presentation forged argument ably by of identifica- plausible Laljie, is a 7. there tion, persons of the whose iden- payable the hus- in names depositing the checks to hijacked underlying in the had been company into an account of that com- tities band's misrepresentation Service. There Laljie fraud on Internal Revenue pany, no to made multiple argument any can be thus no doubt Nkansah made But no such bank. whom misrepresentations to the banks to deposited the checks He made Nkansah. presented. fraudulently opened, presum- checks were into accounts 762 sustaining perpetuates potential loophole have trouble the convic- that could

should scheme, prosecutions tion in is no make future more either because there difficult. Laljie any precedents real to think that had The which the re- upon reason Court today ignore plain idea the bank would bear the loss lies the statute’s lan- whether any guage of the fraudulent transactions and are unsound a matter of eventually discovered the abuse policy. Schmeelk (still actually of his account less that she Although produced 1344 has much liti bank). Moreover, to harm the intended many in the gation separate Circuits and implication opinion of the the clear —that opinions by appellate judges, learned fed Laljie only of in the guilty was bank fraud agree eral courts do the mental on cheeks her case of the altered because necessary support state to a conviction were so crude that the bank forgeries 1344, under nor be relationship totally noticed them-—-is have should See, tween the statute’s two subsections. Presumably, comprehensible. Laljie in- e.g., Staples, United States v. 435 F.3d forgeries tended her not to be noticed (8th Cir.2006) (discussing 866-67 differ bank, and if she had altered Circuits); opinion among ence of United way amounts in such a that the bank was Everett, States v. 270 n. F.3d alterations, not on of the notice Cir.2001) (6th (same). hold, Some Circuits Schmeelk, might not have been liable do, bank, as we that an intent harm artificial chain of inferences from risk, expose or at it to required. least liability actual of the bank to the intent of See, Odiodio, e.g., United States v. secretary

the larcenous would be broken. (5th Cir.2001); F.3d United States This makes no sense: the skill of the Davis, (7th v. 246-47 F.2d Cir. forger should not determine whether 1993). variety But other Circuits hold guilty thief is of bank fraud.8 other example, views. For the First Cir cuit, consequences However unfortunate the overruling precedents, earlier has be, today’s that, I might agree decision held in a unanimous en banc decision and, extent, Laljie given subsection, § lesser under either 1344 requires Blackmon, bank, dictum its is re- outcome an intent to defraud and not quired by the law this None- Circuit. an intent harm bank. United States theless, Kenrick, (1st I believe that this decision re- 26-29 Cir. 2000).9 conviction, verses a well-deserved has Third Circuit relied drawn, many There are variant scenarios in which opened using that the con artist false false, using forged, fraudsters deceive banks forgeries any identification. The of these obtained, fraudulently or stolen checks. A may clumsy cases be I skillful. leave may forge scammer steal blank checks and any reader to out work in which if signature; the account-holder’s create false these instances the bank to whom the check appear legitimate checks that to be checks presented, other is liable for account; present drawn on an actual fraudu- check, paying any on whether of the rules lently created checks that are based on entire- that determine the result are or "well-known” accounts; ly forge fictitious the endorsement by anyone "well understood” but a banker or legitimate on a payable but stolen made check whether, lawyer, and under the of rule party; payee to a third alter the name of the Circuit, charged our a defendant with bank check; or many amount on a stolen and any fraud in of variant these instances can be cases, any more. of these the criminal by jury found to have intended loss to the may present the check to the drawer’s bank bank. bank, may deposit to another and check into her own ac- account into an Ninth, 9. The and Tenth Eleventh Circuits count in a fictitious name or the name of adopted have a similar See United rule. person an actual to whom the check was

763 issue among the circuits the conflict conclude that “where Kenrick to part on case, I hope this to victimize that controls had an intent perpetrator Supreme liability, when the Court sees fit it loss or trust that by exposing the bank conflict, our comfortably reject it will within the to resolve falls such conduct 1344,” there is rule. § but that “where Circuit’s of reach had an perpetrator that the no evidence merely ... an victimize

intent to party does victimize some third

intent to under conduct actionable

not render the Leahy, 445 F.3d States v. 1344.” United Cir.2006).

634, The Third Circuit 647 harm, intent to but requires

thus victimize, include appears which tent to YOUSUF; Abdi John Doe Bashe one, case, in which the bank such as this 2; Deria, 1; John Doe Aziz at 646- “target of Id. deception.” was the Plaintiffs-Appellees, omitted).10 (internal marks quotation 67 Circuit, plain on the relying The Sixth 1344(2), has held that of

language 4; 3; Doe John John Doe Jane in the course “sufficient the defendant 1, Plaintiffs, Doe fed- causes a committing fraud on someone un- to transfer funds v. erally insured bank Everett, and control.” possession der its SAMANTAR, Ali Mohamed Circuit Eighth at has 270 F.3d 991. Defendant-Appellant. (2) requires subsection held that while “ institution, or at least loss America, ‘some Amicus United States ” loss,’ subsec- attempt to cause a while Supporting Appellees. (1) only the defendant requires tion No. 11-1479. ” “ Sta- have the institution. ‘defraud[ed]’ 867, quoting United ples, 435 F.3d Appeals, States Court United (8th Ponec, 163 F.3d States v. Fourth Circuit. Cir.1998).11 view, My expressed own Argued: May Judge Lipez’s is consistent opinion, 2, 2012. unani- Decided: Nov. opinion in Kenrick for the careful mous First Circuit.

Thus, our while the force of Court’s me to concur in the

precedent compels Court, firmly con-

judgment of the I am wrong on the side that we are

vinced (9th McNeil, a third enrich himself or steal from v. 1037-40 States Mata, Cir.2003); La party, yet United States v. De desire to harm or who lacked (11th Cir.2001); bank”). United F.3d injure the (10th Sapp, Cir. F.3d States 1995). to the distinction I 11. This is somewhat akin although opinion, I take the advance Leahy, (explaining n. 9 F.3d at 645 See opposite has which view of which subsection distinction, noting there "[w]ere effect. element, jury specific intent harm might intent not convict a defendant whose

Case Details

Case Name: United States v. Gyanbaah

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 8, 2012

Citation: 699 F.3d 743

Docket Number: Docket 10-2441-cr

Court Abbreviation: 2d Cir.