UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LAWRENCE EUGENE SHAW, Defendant-Appellant.
No. 13-50136
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 27, 2018
D.C. No. 2:12-cr-00862-JFW-1
OPINION
On Remand from the United States Supreme Court
Filed March 27, 2018
Before: Mary M. Schroeder, Jacqueline H. Nguyen, and Andrew D. Hurwitz*, Circuit Judges.
Opinion by Judge Mary M. Schroeder
SUMMARY**
Criminal Law
On remand from the Supreme Court, the panel affirmed a conviction for bank fraud.
The panel held that the defendant did not fairly present to this court, or to the district court, his challenge to the disjunctive form of the district court‘s jury instruction that a “scheme to defraud” within the meaning of
COUNSEL
James H. Locklin, Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Federal Public Defender‘s
Elana Shavit Artson, Assistant United States Attorney; Tracy L. Wilkison, Executive Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; Sandra R. Brown, United States Attorney; United States Attorney‘s Office, Los Angeles, California; for Plaintiff-Appellee.
OPINION
SCHROEDER, Circuit Judge:
This case, involving a conviction for bank fraud in violation of
We affirmed the conviction, and the Supreme Court agreed that a fraudulent scheme to obtain money in a depositor‘s account violates the statute. The Court also rejected the defendant‘s theory that the government must show that the bank itself suffered a financial loss or that the defendant intended the bank to suffer a financial loss. See id. at 466-68. We had reached the same conclusion. See United States v. Shaw, 781 F.3d 1130, 1135-36 (9th Cir. 2015).
The Supreme Court remanded the case, however, on an issue we had not considered. In the Supreme Court, Shaw challenged the disjunctive form of the district court‘s instruction to the jury that a “scheme to defraud” within the meaning of the statute means a defendant must intend to “deceive, cheat or deprive” the bank of something of value. Shaw, 137 S. Ct. at 469. The parties agreed in the Supreme Court that a conviction under subsection (1) requires both a scheme “to deceive the bank and deprive it of something of value.” Id. Shaw argued in the Supreme Court that because the instruction was in the disjunctive, the jury was allowed to convict if it found the defendant intended only to deceive the bank and not to deprive it of something of value. Id. The Court remanded to us to consider whether this argument was fairly presented below, “and, if so, whether the instruction is lawful, and, if not, whether any error was harmless in this case.” Id. at 470.
We called for supplemental briefs. Not surprisingly, Shaw contends he preserved such an instructional error argument in the district court and to us, and the government maintains he did not.
We have carefully reviewed the record. It shows that Shaw did object to the instruction given by the district court. But the objection was not on the ground he urged in the Supreme Court—that the instruction allowed the jury to convict if it found only an intent to deceive the bank without regard to an intent to deprive it of something of value. Rather, Shaw argued in the district court and on appeal to us that the instruction erroneously allowed the jury to convict for stealing Hsu‘s money, not the bank‘s. This was consistent
Accordingly we conclude that the argument the Supreme Court identified for consideration on remand was not fairly presented to us or to the district court. Shaw‘s argument was one of statutory interpretation that was creative and consistent with the record: that he did not violate the bank fraud statute because he was after Hsu‘s money. He did not object to the instruction on the ground it was in the disjunctive.
Moreover, even if Shaw had preserved the objection to the instruction, any error was harmless. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2000) (en banc) (holding that an instructional error is harmless if “it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.‘“) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). The evidence was overwhelming that Shaw deceived the bank in order to obtain money from Hsu‘s bank account, and that he transferred the money from Hsu‘s account into accounts Shaw controlled. There was thus no reasonable possibility the jury could have convicted him on the basis of a deception alone, without the intent to obtain anything of value. Any error in the instruction was therefore harmless. Shaw would have been convicted whether the instruction was in the disjunctive or conjunctive.
The judgment of conviction is again AFFIRMED.