                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                              File Name: 16a0091p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


 UNITED STATES OF AMERICA,                                         ┐
                                          Plaintiff-Appellee,      │
                                                                   │
                                                                   │
            v.                                                     │
                                                                    >        No. 14-3723
                                                                   │
 ANGELIQUE BANKSTON,                                               │
                                      Defendant-Appellant.         │
                                                                   ┘
                              Appeal from the United States District Court
                             for the Northern District of Ohio at Cleveland.
                       No. 1:13-cr-00166-1—David D. Dowd, Jr., District Judge.

                                         Argued: December 9, 2015

                                     Decided and Filed: April 14, 2016

                     Before: STRANCH, DONALD, and LIPEZ,* Circuit Judges.
                                    _________________

                                                   COUNSEL

ARGUED: Nadia Wood, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbus,
Ohio, for Appellant. Mark S. Bennett, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee. ON BRIEF: Nadia Wood, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbus, Ohio, for Appellant.        Mark S. Bennett, UNITED STATES
ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.




        *
           The Honorable Kermit V. Lipez, Circuit Judge for the United States Court of Appeals for the First Circuit,
sitting by designation.




                                                         1
No. 14-3723                           United States v. Bankston                           Page 2


                                        _________________

                                              OPINION
                                        _________________

       LIPEZ, Circuit Judge. Asserting that her trial on twenty-three fraud-related charges was
flawed by numerous errors, Defendant-Appellant Angelique Bankston asks us to vacate all of her
convictions and remand for a new trial. In particular, she argues that (1) her waiver of counsel
was invalid, (2) she was improperly charged in count 23 with making false statements to a judge
in violation of 18 U.S.C. § 1001, (3) the trial proceedings were procedurally deficient due to
judicial bias, prosecutorial misconduct, and ineffective assistance of counsel, and (4) the
evidence was insufficient to support her convictions for wire and mail fraud. She further
contends that, even if we reject her claims of trial error, she is entitled to resentencing.

       Having carefully considered her claims, we conclude that only her claims of error as to
the count 23 conviction and sentencing have merit.            Therefore, we VACATE Bankston’s
conviction on count 23 of making false statements in violation of 18 U.S.C. § 1001, AFFIRM
her convictions on all other counts, and REMAND the case for resentencing.

                                                   I.

       On August 28, 2013, Bankston was charged in a twenty-three-count Second Superseding
Indictment with committing wire fraud, mail fraud, bank fraud, money laundering, identity theft,
and a false statement offense in connection with three separate fraudulent schemes that occurred
between March 2011 and June 2012.             Unlike the previous indictments, this superseding
indictment (and the final and operative Third Superseding Indictment) included count 23, which
charged Bankston with making false statements in matters within the jurisdiction of the judiciary,
based on a letter she wrote to the district judge accusing the government of planting evidence in
her home.

       Although Bankston asks that we vacate her convictions on every count, the fraudulent
activity pertinent to her claims on appeal concerns primarily one of the three fraudulent
schemes—the so-called “Citizens Bank and Lending Club Scheme.”                  Hence, we limit our
recitation of the facts to that particular scheme and provide additional details as necessary in our
No. 14-3723                               United States v. Bankston                                Page 3


analysis. Similarly, we briefly sketch out the procedural background in this section, reserving a
more complete account of the trial proceedings until our discussion of Bankston's claims.

        All of Bankston’s fraudulent schemes followed one fundamental pattern. She unlawfully
obtained the personal identification information of individuals and used it to defraud commercial
banks and the state and federal government. In the Citizens Bank and Lending Club Scheme, she
instructed her co-conspirator, Jocelyn Hale, to open an account at Citizens Bank in the name of
Rachelle Butler—whose personal identifiers Bankston had illegally obtained—at the bank’s
branch office in Erie, Pennsylvania. When opening the account, Hale also opened a Citizens
Bank credit card in Butler’s name. Bankston then deposited funds in Butler’s Citizens Bank
account, which she acquired in part from a fraudulent Lending Club loan application that she had
filled out online using Butler's identifiers. Bankston then instructed Hale to withdraw a portion
of these funds in the form of two cashier checks. Bankston and Hale failed to cash those checks,
however, and a dispute arose shortly thereafter over Bankston’s refusal to pay Hale as promised.

        On September 5, 2012, Postal Inspector L.E. Macek searched Bankston’s home pursuant
to a warrant. While the search uncovered certain evidence of Bankston’s fraudulent schemes,
such as a list of individuals whose identifiers she had obtained unlawfully, most of the search
involved the postal inspector asking Bankston a series of questions about her acquaintance with a
co-conspirator and her reasons for placing mail holds.1 Bankston answered these questions,
having signed a waiver of her Miranda rights.

        Before trial, Bankston wrote a letter to the district judge complaining of a disagreement
with her attorney about trial strategy. Bankston wanted to present as a defense her theory that
the evidence of the fraudulent schemes that was recovered from her home had been planted by a
federal agent. Specifically, she claimed that Postal Inspector Macek, who performed the search
of her home, was in fact the same person as one of the two local police officers who had visited
her home several months earlier on a separate investigation. Bankston explained in her letter that
her attorney’s refusal to present the planted evidence theory as a defense resulted in a breakdown
of the attorney-client relationship.

        1
          Bankston placed mail holds on certain individuals whose identities she had obtained in order to intercept
various documents and checks that she had arranged to be sent to them.
No. 14-3723                         United States v. Bankston                          Page 4


       The district court treated Bankston’s letter as a pro se motion to suppress the evidence
and held a suppression hearing. The court also appointed new counsel to represent Bankston. At
the suppression hearing, the two local police officers testified that they were not aware of the
federal investigation of Bankston when they visited Bankston’s home earlier that year on a
separate investigation, and that they did not enter her residence or plant evidence. Instead, they
left a card in the door for Bankston to call. Macek testified that he was not aware of the local
police investigation of Bankston, and he was not at Bankston’s home when the local police
officers paid a visit earlier that year. The district court denied Bankston’s motion to suppress.

       Meanwhile, before the suppression hearing, the government filed the Second Superseding
Indictment that included the count 23 false statement charge. That charge relied solely on
Bankston’s letter as the factual basis for the offense, excerpting, for instance, portions of the
letter in which Bankston explained her planted evidence theory. The indictment also stated that,
in addition to deceiving the district court by presenting the planted evidence theory, the letter
“caused the FBI and IRS agents assigned to the case to perform additional investigation.”

       Trial commenced on November 5, 2013. During voir dire, Bankston’s attorney informed
the district court that Bankston wished to proceed pro se. While the district judge was initially
reluctant to allow Bankston to represent herself, the judge ultimately conducted an inquiry to
determine if Bankston’s decision to waive her right to counsel was knowing and intelligent. The
court found that it was, and Bankston remained pro se throughout the trial. The jury found
Bankston guilty on all twenty-three counts.

       At the sentencing hearing, Bankston was again represented by an attorney. After hearing
argument on various proposed enhancements to the base offense level, the court determined
Bankston’s base offense level to be 27, with a criminal history category of VI, which resulted in
the guideline range of 130 to 162 months. The court sentenced Bankston to 144 months on
counts other than the aggravated identity theft counts, added a mandatory two-year consecutive
sentence for Bankston’s aggravated identity theft convictions, and imposed a total sentence of
168 months. This appeal followed.
No. 14-3723                          United States v. Bankston                          Page 5


                                                 II.

       Bankston raises five arguments on appeal. First, she argues that her waiver of counsel
was invalid because the district court failed to conduct a full Faretta inquiry, as required by
United States v. McDowell, 814 F.2d 245 (6th Cir. 1987). Second, Bankston contends that count
23 in the indictment was defective because the underlying conduct for the charge—here, writing
a letter to the district judge as part of a criminal defense—is explicitly exempted from criminal
liability under the statute. Third, and relatedly, Bankston argues that there were numerous errors
throughout the trial relating to count 23, which, individually and collectively, warrant a new trial
on all counts. These alleged errors include: ineffective assistance of counsel in failing to object
to or move to dismiss count 23; prosecutorial misconduct in overzealously pursuing that charge;
and judicial bias resulting from the district judge’s failure to recuse himself, despite the fact that
he was the recipient of Bankston’s letter and hence a victim of the false statement crime. Fourth,
Bankston argues that her convictions on counts 16 (wire fraud) and 18 (mail fraud) should be
vacated because the government failed to prove essential elements of the crimes in those
respective counts—namely, the use of an interstate wire communication for wire fraud and the
use of the mails for mail fraud. Finally, Bankston argues that the district court committed a
series of errors in sentencing, such as incorrectly calculating the base offense level and failing to
provide an explanation for departure in the criminal history category, which require resentencing.
We address each claim in turn.

A. Waiver of Counsel

       The parties agree that plain error review applies to the claim that Bankston’s waiver of
counsel was invalid. Hence, in order to prevail, Bankston must show that the district judge’s
Faretta inquiry constituted a plain error that “affect[ed] [her] substantial rights” and that
implicated the “fairness, integrity, or public reputation of judicial proceedings.” Johnson v.
United States, 520 U.S. 461, 466–69 (1997) (internal quotation marks omitted); see also United
States v. Oliver, 397 F.3d 369, 375–76 (6th Cir. 2005).
No. 14-3723                         United States v. Bankston                         Page 6


        1. Legal Principles

        The legal standards governing the validity of waiver of counsel are well-developed,
though they are not without complexities in application. In Faretta v. California, 422 U.S. 806,
819 (1975), the Supreme Court held that the Sixth Amendment right to counsel has implicit
within it a right to self-representation. Recognizing the advantages of legal representation, the
Faretta Court required, however, that, “in order to represent himself, the accused must
knowingly and intelligently forgo those relinquished benefits.” Id. at 835 (internal quotation
marks omitted). Thus, while “a defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose self-representation, he should be made
aware of the dangers and disadvantages of self-representation, so that the record will establish
that he knows what he is doing and his choice is made with eyes open.” Id. (internal quotation
marks omitted). Following the Court’s decision in Faretta, numerous circuits addressed the
question of what type of “record” is necessary to establish that a defendant’s waiver of counsel
was “knowing and intelligent.” See, e.g., United States v. Hafen, 726 F.2d 21, 25–26 (1st Cir.
1984); Richardson v. Lucas, 741 F.2d 753, 756–57 (5th Cir. 1984); United States v. Kimmel,
672 F.2d 720, 721–22 (9th Cir. 1982); United States v. Bailey, 675 F.2d 1292, 1297–1302 (D.C.
Cir. 1982).

        This Circuit did so in McDowell, 814 F.2d at 248–50. There, we acknowledged the
“difficult position” of a district judge in determining whether a waiver is knowing and
intelligent. Id. at 248. “An overprotective judge who refuses to allow a defendant to jeopardize
his own defense may be reversed, and a judge who does not make a copious inquiry into the
thought process of the accused (which may themselves be characterized as trial strategy) is
subject to an appeal . . . .” Id. at 248–49. To mitigate such concerns, we identified “the nature of
the inquiry to be made and the procedure to be followed” when a criminal defendant expresses a
wish to represent himself. Id. at 250. A model inquiry, we noted, is one provided in the
Benchbook for U.S. District Court Judges (“Bench Book”). Id. We then instructed the district
courts in our circuit that:

        In the future, whenever a federal district judge in this circuit is faced with an
        accused who wishes to represent himself in criminal proceedings, the model
        inquiry or one covering the same substantive points along with an express finding
No. 14-3723                          United States v. Bankston                           Page 7


       that the accused has made a knowing and voluntary waiver of counsel, shall be
       made on the record prior to allowing the accused to represent himself.

Id.; see also id. at 251 (Appendix to the Opinion (hereinafter “App.”) reprinting a list of the
Bench Book questions).

       The law of our Circuit has evolved since McDowell. If the language of McDowell
recommended a “formal inquiry” that consists of thirteen questions and one admonishment as
specified in the Bench Book (or at least questions that cover “[those] same substantive points,”
id. at 250), our subsequent cases have hewed closer to the underlying concern for setting forth
the model inquiry, i.e., the “difficult position” of the district judge, id. at 248. Thus, in the post-
McDowell era, we have required only that the questions be “drawn from, or substantially similar
to, the model inquiry set forth in the [Bench Book],” rather than adhere literally to the
recommended list of questions in the model inquiry. United States v. McBride, 362 F.3d 360,
366 (6th Cir. 2004); see also United States v. Utrera, 259 F. App’x 724, 728 (6th Cir. 2008)
(“Substantial compliance and not literal adherence to [the model inquiry] is required.”).
Consistently, we have reviewed a district judge’s Faretta inquiry on appeal by focusing on
whether the judge addressed the “relevant considerations” behind the model inquiry, such as “the
defendant’s familiarity with the law, . . . the gravity of the charges and the dangers of self-
representation,” and whether “the defendant’s decision to waive counsel is voluntary.” United
States v. Miller, 910 F.2d 1321, 1324 (6th Cir. 1990); see also United States v. Williams,
641 F.3d 758, 767 (6th Cir. 2011) (“Very generally, the model inquiry is thirteen questions about
the defendant’s familiarity with the law and legal system, and the charges against him. This
inquiry must be followed by a strong admonishment that the court recommends against the
defendant trying to represent himself or herself.”). Where the record shows that the defendant
“kn[ew] what he [wa]s doing and his choice [wa]s made with eyes open,” Faretta, 422 U.S. at
835 (internal quotation marks omitted), we have found the Faretta inquiry adequate.
No. 14-3723                          United States v. Bankston                       Page 8


       2. Whether the Faretta Inquiry Was Adequate

       In the case before us, the district judge began the inquiry by asking the following
questions:

            “How far did you go in school?”
            “What college did you go to?”
            “Do you have any degrees?”
            “Have you ever studied law?”
            “When you were in college, did you take any courses involving the law either
             as to the procedure or the substance of the law?”
            “Have you ever represented yourself in a criminal action?”
            “[D]o you understand the crimes you’re charged with in this case?” Based on
             an affirmative answer from Bankston, the judge then asked, “[c]an you list
             them for me now?”
            “Can you explain to me why you delayed until today while we’re impaneling
             the jury to decide that you wanted to represent yourself?” When Bankston
             answered, “I’ve been saying it over and over, [and] I discussed it with my
             attorneys,” the judge asked, “[d]o you have any idea what your defenses are?”
            The judge further stated, “I am just curious as to if you thought through what
             your defenses are.” Based on an affirmative answer from Bankston, the judge
             then asked, “[h]ow are you going to establish that?”

       The judge then warned Bankston of the difficulties of self-representation, stating,
“[y]ou’ve got to decide whether you are really serious about representing yourself. It’s a very
difficult thing to do.” In a similar vein, the judge also asked:

            “Do you understand if you represent yourself, it will be your decision whether
             you testify or not?”
            “And do you understand that if you represent yourself and testify, I’ll make
             you sit up here in the witness stand[?]”
            “Do you understand that you won’t be allowed to consult with your lawyers
             about how you should answer a question when you’re being cross-examined?”
            “Have you ever heard the statement that he who represents himself has a fool
             for a client?”

       When Bankston repeatedly expressed her understanding of the difficulties of self-
representation and her wish to do so regardless, the judge inquired one final time, “[o]kay. In
No. 14-3723                               United States v. Bankston                                Page 9


spite of that, you want to represent yourself; is that true?” Bankston responded, “[y]es, I do.”
The judge then stated: “Let me say for the record that I am satisfied that the defendant has
sufficient understanding of the case and sufficient intelligence to undertake the task of
representing herself. She has a constitutional right to represent herself.”

        Under these circumstances, we cannot say that the district judge’s inquiry was inadequate
under the “substantially similar” standard. First, while Bankston argues that the judge asked
only three out of the thirteen model questions,2 that accounting seems to be incorrect. For
instance, the judge informed Bankston of the possibility of taking the stand and the consequences
of doing so, as required by the model inquiry. Compare R. 242: Voir Dire Tr., at 2754 (“Do you
understand if you represent yourself, it will be your decision whether you testify or not? . . . And
do you understand that if you represent yourself and testify, I’ll make you sit up here in the
witness stand?”) with McDowell, 814 F.2d at 251 (App.) (“(k) You realize, do you not, that if
you decide to take the witness stand, you must present your testimony by asking questions
yourself? You cannot just take the stand and tell your story. You must proceed question by
question through your testimony.”). While Bankston also argues that the judge did not mention
the statutory maximum penalties at voir dire, the record shows that the district court discussed, at
the suggestion of the government, the statutory maximums for each count the following day.3
Indeed, while we recognize the time lapse between the initial Faretta inquiry and when the
colloquy on statutory maximums occurred, we do not find it to be a plain error here because the
colloquy took place at the beginning of the trial before any evidence was introduced, and, as
demonstrated below, the Faretta inquiry is not rendered deficient due to the absence of any
particular question.


        2
          Our “3 out of 13 questions” formulation is substantively the same as Bankston’s “4 out of 14 questions”
characterization. Bankston’s characterization construes the “strong admonishment” requirement as a question,
rather than a statement, which is how we characterized it in McDowell, 814 F.2d at 251 (App.), and how we
understand it here.
        3
           We reject Bankston’s argument that the government’s proposal on the first day of trial to go over the
statutory maximums suggests that the government knew that the initial Faretta inquiry was deficient. Although the
government acknowledged that one of the thirteen model questions had not been asked, it did not indicate that the
inquiry conducted was inadequate overall. Nor do we find it problematic that it was the government, rather than the
district judge, that explicitly discussed the statutory penalties. After thanking the government for placing the
statutory penalties on the record, the judge asked Bankston if she “ha[d] any questions about the maximum
sentences.” Bankston answered, “No.”
No. 14-3723                               United States v. Bankston                                 Page 10


        The “substantial similarity” standard, moreover, does not require a precise accounting of
the questions asked. The critical question under McDowell and our subsequent case law is
whether, in context, the questions asked by the court meet the objectives of the model inquiry.
Hence, while Bankston argues that the judge failed to ask the remaining eight out of the thirteen
model inquiry questions, we find that many of those eight questions were in fact addressed
during the colloquy, even if the judge did not ask them verbatim. Upon learning that Bankston
did not go to law school, the judge asked whether, in college, Bankston “t[ook] any courses
involving the law either as to the procedure or the substance of the law,” R. 242: Voir Dire Tr., at
2750–51—an inquiry that “substantially” covers the two model questions regarding the
defendant’s familiarity with the Federal Rules of Evidence and the Federal Rules of Criminal
Procedure. See McDowell, 814 F.2d at 251 (App.) (“(g)” & “(i)”). Similarly, while the judge
did not explicitly ask whether Bankston’s decision to represent herself was “entirely voluntary
on [her] part,” id. (App.) (“(n)”), the judge asked why she made the decision late when the trial
had already commenced, and Bankston answered that she had expressed her desire to represent
herself “over and over” to her attorneys after having “discussed it with [them],” R. 242: Voir
Dire Tr., at 2751, a response which suggested voluntariness. The judge also asked Bankston
whether, in spite of the difficulties of self-representation, she wanted to represent herself, id. at
2755—a question that, again, bears substantial similarity to one of the model questions in the
Bench Book. See McDowell, 814 F.2d at 251 (App.) (“(m) Now, in light of the penalty that you
might suffer if you are found guilty and in light of all the difficulties of representing yourself, is
it still your desire to represent yourself and to give up your right to be represented by a
lawyer?”).

        We recognize that the remaining four questions were not asked. We reiterate, however,
that our disavowal of “literal adherence” to the model inquiry, Utrera, 259 F. App’x at 728,
means not only that each individual question need not be identical to one of the Bench Book
questions, but also that the overall shortfall as compared to the thirteen questions need not be an
error.4 Rarely, if ever, have we based the adequacy of the Faretta inquiry solely on the precise

        4
           Where we have found error in the district court’s Faretta inquiry, it was based on the judge’s failure to
address the relevant considerations or make the express finding at all—instances clearly distinguishable from the
case at issue. See, e.g., United States v. Herrera-Martinez, 985 F.2d 298, 301–02 (6th Cir. 1993) (finding error in
No. 14-3723                                 United States v. Bankston                                   Page 11


number of the model questions asked. See id. (holding that the district judge “substantially
complied with the McDowell inquiry” because the Court “rigorously explained the pitfalls of
self-representation” and “repeatedly attempted to dissuade [the defendant] from proceeding pro
se, point[ing] out that [he] lacked appropriate legal training” and he “would likely increase his
risk of conviction” by choosing to represent himself); Williams, 641 F.3d at 767 (“The district
court’s questioning substantially covered the thirteen model questions drawn from the Bench
Book . . . .”); see also Miller, 910 F.2d at 1324–25.

         Finally, Bankston argues that the district judge did not make an express finding that her
waiver of counsel was knowing and voluntary, as required by the model inquiry. See McDowell,
814 F.2d at 251 (App.) (“(o)”). The district judge noted, however, that he was “satisfied that the
defendant has sufficient understanding of the case and sufficient intelligence to undertake the
task of representing herself.” R. 242: Voir Dire Tr., at 2759. While Bankston contends that this
statement does not suffice as an express finding because the judge did not say “knowing and
voluntary,” the requirement of an express finding is not a magic word test. We held in Williams,
“[a]lthough the district court did not specifically find that [the defendant] had knowingly and
voluntarily waived his right to counsel,” the district judge’s statement at issue—“I find that you
have the requisite knowledge, education and ability to represent yourself in this matter”—
“establishes that [the defendant’s] waiver was knowing and voluntary, and the district court
substantially made the required finding.” 641 F.3d at 767 (emphasis added). The district
judge’s colloquy and the statement here is virtually indistinguishable from the statement in
Williams.

         In sum, the district court addressed the “relevant considerations”—including “the
defendant’s familiarity with the law,” “the gravity of the charges,” and “the dangers of self-
representation,” Miller, 910 F.2d at 1324—by asking a series of questions that were “drawn
from, or substantially similar to,” the model inquiry questions, McBride, 362 F.3d at 366. The
judge also “substantially made the required finding” that Bankston’s waiver of counsel was

the district court’s inquiry because the judge allowed the defendant to proceed pro se without making any express
finding); United States v. Clemons, No. 97–6267, 1999 WL 196568, at *4 (6th Cir. 1999) (holding that the
defendant’s waiver of counsel was ineffective because, inter alia, “[t]he record reveals that the district court did not
make this inquiry or warn [the defendant] of the dangers of self-representation”).
No. 14-3723                          United States v. Bankston                        Page 12


knowing and voluntary. Williams, 641 F.3d at 767. We, therefore, find no error, let alone plain
error, in the judge’s Faretta inquiry.

B. Defective Indictment as to Count 23

       Count 23 of the operative indictment charged Bankston with violating 18 U.S.C. § 1001
for making false statements in her letter to the district judge when she asserted that the postal
inspector who searched her home while investigating Bankston’s fraudulent schemes had
previously posed as a local police officer and planted the evidence that he later seized from her
residence. On appeal, Bankston claims that count 23 was defective because the underlying
conduct was not a crime under § 1001(b), i.e., the charge failed to state an offense. Section
1001(b) provides that § 1001(a)—which criminalizes making false statements in “matter[s]
within the jurisdiction of the executive, legislative, or judicial branch of the Government of the
United States”—“does not apply to a party to a judicial proceeding . . . for statements,
representations, writings or documents submitted by such party . . . to a judge or magistrate in
that proceeding.” 18 U.S.C. § 1001(b). Bankston asserts that her conviction on count 23 must,
therefore, be vacated.

       The government claims that Bankston’s challenge to her conviction on count 23 is
waived because it was not raised in a pretrial motion pursuant to Rule 12(b). Alternatively, the
government contends that Bankston’s conduct is not facially exempt because the indictment
alleged that Bankston’s false statements related to matters “within the jurisdiction of the judicial
and executive branches of the United States” and “caused the FBI and IRS agents assigned to the
case to perform additional investigation in connection with the Defendant's allegations.” We
begin with the issue of waiver.

       1. Waiver and Standard of Review

       The government’s contention that Bankston’s claim is waived presents a threshold
question as to which version of Rule 12 applies in this case. The 2013 version of Rule 12—
which was in place when Bankston was tried and filed this appeal—stated that “a motion
alleging a defect in the indictment” must be filed prior to trial, and that a failure to do so would
result in a waiver of that claim. Fed. R. Crim. P. 12(b)(3)(B), 12(e) (2013). This old version of
No. 14-3723                               United States v. Bankston                                  Page 13


Rule 12, however, also carved out an exception to the waiver rule stating that “at any time while
the case is pending, the court may hear a claim that the indictment or information fails to invoke
the court’s jurisdiction or to state an offense.” Fed. R. Crim. P. 12(b)(3)(B) (2013).5 By
contrast, the 2014 version of Rule 12(b)—which took effect on December 1, 2014, when this
appeal was pending and is still in force—eliminated the “failure to state an offense” exception,
while modifying the consequences of failing to file a 12(b)(3) motion. See Fed. R. Crim. P.
12(b)(3)(B)(v) (2014). That is, the current rule states that a failure to file a 12(b)(3) motion prior
to trial—including, a motion alleging a failure to state an offense—is “untimely,” but that a court
may nonetheless “consider [the objection] if the party shows good cause.” Fed. R. Crim. P.
12(c)(3) (2014).       The government argues that the current version of the rule applies and
Bankston’s claim is waived, or, alternatively, even if the claim is not waived, it is subject to plain
error review because Bankston did not raise it in the district court. Bankston argues that, under
the applicable older version of Rule 12, her claim is not only preserved but it is subject to de
novo review. We conclude that Bankston has the better argument.

        The Supreme Court’s order promulgating the 2014 amendments to the Federal Rules of
Criminal Procedure stated that the new rules “shall govern in all proceedings in criminal cases
thereafter commenced and, insofar as just and practicable, all proceedings then pending.” S. Ct.
Order Amending Fed. R. Crim. P. at ¶ 2 (Apr. 25, 2014) (emphasis added). The language in this
order parallels the language in the Rules Enabling Act, which provides that “the Supreme
Court shall not require the application of such rule to further proceedings then pending to the
extent that, in the opinion of the court in which such proceedings are pending, the application of
such rule in such proceedings would not be feasible or would work injustice.” 28 U.S.C.
§ 2074(a) (emphasis added). Hence, the applicability of amended Rule 12 depends on whether
its retroactive application to cases pending at the time of the amendment would be “just and


        5
           We acknowledge that we have inconsistently applied the now-defunct 12(e) “waiver” provision. As we
observed in United States v. Soto, 794 F.3d 635, 649 (6th Cir. 2015), we sometimes construed the party’s failure to
file a timely pretrial motion as a “true waiver,” other times construed it as forfeiture and conducted plain error
review, and yet other times avoided “resolving the proper characterization” or examined “whether the appellant had
shown good cause for the failure.” Id. at 649–50. Because we decide here that the earlier version of Rule 12
applies, and under that version an indictment fails to state an offense when it omits a facially applicable statutory
exemption, see infra, we do not comment on whether Bankston’s defective indictment claim would have been
subject to waiver under the current rule.
No. 14-3723                          United States v. Bankston                        Page 14


practicable,” or, instead, would “work injustice” or be “[in]feasible.” In the latter circumstances,
the old rule governs. See Landgraf v. USI Film Prods, 511 U.S. 244, 275 n.29 (1994) (“Our
orders approving amendments to federal procedural rules reflect the commonsense notion that
the applicability of such provisions ordinarily depends on the posture of the particular case.”);
see also, e.g., Diaz v. Shallbetter, 984 F.2d 850, 853 (7th Cir. 1993) (holding that the “just and
practicable” exception means only that the amendments “may or may not govern” in pending
cases, and that it is not a blanket “authorization for retroactive application”).

          Here, we conclude that application of amended Rule 12 would “work injustice,” since,
under the current rule, the failure to raise a defective indictment claim in a pre-trial motion may
result in a waiver of that claim. See Fed. R. Crim. P. 12(b)(3)(B)(v) (2014). Indeed, the
situation here is much different from the few cases in which we have applied amendments to the
Federal Rules retroactively. In United States v. Soto, we applied the 2014 version of Rule 12 to
pending proceedings because both the amended rule and its predecessor treated the conduct at
issue—a defendant’s failure to bring a pre-trial motion to sever the claims—the same way, i.e.,
as a waiver. 794 F.3d 635, 648–50 & n.2 (6th Cir. 2015). If anything, the amended rule favored
the defendant in Soto because, as explained above, it eliminated Rule 12(e)’s reference to
“waiver” and instead carved out a “good cause” exception. Likewise, in Ridder v. City of
Springfield, we applied an amendment to the Federal Rules of Civil Procedure retroactively in
part because the conduct that was subject to sanctions under the amended rule continued even
after the amendments took effect. 109 F.3d 288, 296 (6th Cir. 1997). In the case before us, the
older version of Rule 12 was in effect during Bankston’s trial and when she filed this appeal, and
it contained a “failure to state an offense” exception that could have—and we hold below did—
preserve Bankston’s claim. To apply amended Rule 12 to Bankston’s claims would hence be
unjust.

          Under the 2013 version of Rule 12, we provide plenary review to a claim that the
allegations of the indictment fail to state an offense. See Fed. R. Crim. P. 12(b)(3)(B); United
States v. Gatewood, 173 F.3d 983, 986 (1999) (holding that de novo review applies if the claim
that the defendant failed to raise under Rule 12(b) is a claim that “contends that the indictment
fail[ed] to establish jurisdiction or to charge an offense”). Hence, we review de novo Bankston’s
No. 14-3723                               United States v. Bankston                                    Page 15


challenge to count 23, mindful that where, as here, an indictment is not challenged until appeal,
“the indictment must be construed liberally in favor of its sufficiency.” Id.

        2. Whether the Indictment Failed to State an Offense as to Count 23

        Bankston argues that the conduct alleged in count 23—writing a letter to the district
judge as part of a criminal defense—was not a crime under 18 U.S.C. § 1001 because the statute
expressly exempts from criminal liability statements made to a judge in the course of judicial
proceedings. See 18 U.S.C. § 1001(b).6

        The exemption, frequently referred to as a “judicial function exception,” applies when the
defendant shows: “(1) he was a party to a judicial proceeding, (2) his statements were submitted
to a judge or magistrate, and (3) his statements were made in that proceeding.” United States v.
Vreeland, 684 F.3d 653, 662 (6th Cir. 2012) (quoting United States v. McNeil, 362 F.3d 570, 572
(9th Cir. 2004) (internal quotation marks omitted)); see also United States v. Holmes, 840 F.2d
246, 248–49 (4th Cir. 1988). Bankston’s letter to the district judge clearly satisfies all three
elements of the exception. The fact that the indictment referenced Bankston’s false statements in
matters “within the jurisdiction of the judicial and executive branches of the United States” does
not change the analysis. Even construing the indictment liberally, see Gibson, 513 F.2d at 979,
count 23 is explicitly and exclusively premised on the letter that Bankston wrote to the judge,
particularly her allegations regarding the planting of evidence. It is of no legal significance that
the false statements in the letter concerned the actions of the executive branch and thus required
investigation by the executive agencies. Neither the statute nor our case law discussing the
        6
         Section 1001(a) sets forth the criminal prohibition, while § 1001(b) provides for the statutory exemption.
These provisions state, in relevant parts:
        (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the
        executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--
                 (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
                 (2) makes any materially false, fictitious, or fraudulent statement or representation; or
                 (3) makes or uses any false writing or document knowing the same to contain any materially false,
                 fictitious, or fraudulent statement or entry;
                 shall be fined under this title, imprisoned not more than 5 years . . . .
        (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements,
        representations, writings or documents submitted by such party or counsel to a judge or magistrate in that
        proceeding.
        18 U.S.C. § 1001.
No. 14-3723                                United States v. Bankston                                  Page 16


judicial function exception takes into account the effect of false statements. See Vreeland,
684 F.3d at 662. A contrary interpretation, moreover, would render § 1001(b) inapplicable to all
adversarial statements made by a criminal defendant that lead to an investigation by law
enforcement.7

         To find that Bankston’s conduct is not a crime under § 1001 does not end our analysis,
however, because there is language in Vreeland suggesting that the judicial function exception
may be an affirmative defense that must be raised by a defendant. See Vreeland, 684 F.3d at 662
(stating that the defendant “must show” the three elements of the judicial function exception
under § 1001(b)). But the case before us is appreciably different from Vreeland. In Vreeland
and cases like it, the defendant’s conduct did not, on its face, fall within the judicial function
exception, and thus the applicability of § 1001(b) was in dispute. Indeed, in Vreeland, we dealt
with whether § 1001(b) applied to false statements made to a probation officer who was assigned
to the defendant during his term of supervised release and who prepared the presentence
investigation report. We held that it did not because a probation officer is more than a conduit
between the defendant and the judge when playing the role of an investigator, and the statements
directed at the officer were hence not made in a “judicial proceeding.” 684 F.3d at 664–65; see
also United States v. Westberry, 491 F. App’x 364, 365–66 (4th Cir. 2012) (per curiam); United
States v. Grace, 396 F. App’x. 65, 65–66 (5th Cir. 2010) (per curiam); Manning, 526 F.3d at
618–20. But see United States v. Horvath, 492 F.3d 1075, 1080–81 (9th Cir. 2007) (holding that
statements made to a probation officer in the course of preparing a presentence investigation
report are protected under the § 1001(b) exception). Similarly, in McNeil, 362 F.3d at 572—the
Ninth Circuit case quoted in Vreeland—the court addressed “whether the range of judicial
activities implied by [the judicial function exception] includes the inquiry into a defendant’s

         7
           Legislative history supports our conclusion that the effect of false statements on an executive agency does
not affect the applicability of the judicial function exception. In codifying § 1001(b), Congress agreed with federal
courts that had long recognized that a judicial function exception is “necessary to safeguard from the threat of
prosecution statements made in the course of adversarial litigation.” H.R. Rep. No. 104-680, at 4 (1996). The fear
was that, without the judicial function exception, § 1001 would “chill vigorous advocacy, thereby undermining the
adversarial process.” Id. Thus, in codifying the judicial function exception, Congress drew a bright-line rule
distinguishing “the adjudicative and administrative functions of the court.” Id. at 9 (noting that “only those
representations made to a court when it is acting in its administrative or ‘housekeeping’ capacity,” such as
“submissions related to bar membership,” are within the scope of criminal prohibition). To consider the effect of
false statements as a disqualifying factor—when those statements would otherwise satisfy the judicial function
exception—would, therefore, restrict the scope of § 1001(b) contrary to Congress’s intent.
No. 14-3723                          United States v. Bankston                           Page 17


financial status for purposes of appointing counsel” and ultimately concluded that it did. In all
these cases, there was a dispute—between the parties and across circuits—as to whether
§ 1001(b) applied to the novel factual circumstances at issue. By contrast, there is no gray area
or nuance in applying § 1001(b) to Bankston’s conduct: writing a letter to a judge in the course
of a criminal defense is the quintessential conduct protected from criminal liability.

       Rather than Vreeland, this case is more akin to United States v. Hubbard, 16 F.3d 694,
697 (6th Cir. 1994), rev’d on other grounds, 514 U.S. 695 (1995), where we dealt with false
statements that a defendant had made in response to pleadings and motions in a judicial
proceeding. We observed in Hubbard that the judicial function exception is different from “a
formalistic objection to a defect in the indictment” because it “goes to the heart of whether, as a
matter of law, [the defendant] can be convicted of the crime with which he was charged.” Id. at
698. We thus concluded—creating an apparent conflict with Vreeland—that a claim that the
judicial function exception applies to particular statements is a claim alleging a failure to state an
offense and, therefore, is not waived under the old version of Rule 12(b).               Id.; see also
Gatewood, 173 F.3d at 986 (noting that, under Rule 12(b), “a defendant who contends that the
indictment fails to establish jurisdiction or to charge an offense may raise that challenge at any
time”); United States v. Harrod, 168 F.3d 887, 890 (6th Cir. 1999) (holding that a claim that the
indictment failed to state an offense “can be raised for [the] first time on appeal”) (citing United
States v. Forbes, 16 F.3d 1294, 1297 (1st Cir. 1994)). Drawing upon our discussion in Hubbard,
we hold in this case that where, as here, the underlying conduct is so patently not a crime that it
satisfies § 1001(b) on its face, the indictment fails to state an offense when it charges a false
statement crime while omitting the judicial function exception.

       Because count 23 is based on conduct that, on the face of the relevant statutory
exemption, does not constitute a crime, we find that the indictment failed to state an offense in
count 23. We thus vacate Bankston’s conviction on count 23. See Gatewood, 173 F.3d at 986
(holding that a reversal of conviction is warranted, even without a showing of prejudice, where
“the indictment cannot within reason be construed to charge a crime”) (quoting United States v.
Hart, 640 F.2d 856, 857–58 (6th Cir. 1981)).
No. 14-3723                                 United States v. Bankston                                   Page 18


C. Due Process Errors Relating to Count 23

         Bankston claims that the government’s refusal to dismiss count 23, the district judge’s
failure to recuse himself despite being the recipient of her letter, and her counsel’s failure to
object to or move to dismiss count 23—either individually or collectively—created an “unfair
trial setting” that violated her Fifth Amendment due process rights.8 Specifically, she asserts that
she would not have testified at trial if she had not needed to defend herself against the count 23
charge, and her testimony opened the door to cross-examination in which her prior convictions
were revealed. She further claims that the disclosure of her criminal background “infected” the
fairness of the entire trial, which warrants vacating her convictions on all counts. We discuss
each claim of impropriety before considering the issue of cumulative effect.

         1. Prosecutorial Misconduct

         Because Bankston did not raise a prosecutorial misconduct claim in the district court, we
review the prosecutor’s conduct only for plain error. See United States v. Henry, 545 F.3d 367,
376 (6th Cir. 2008). As described above, Bankston must show that the alleged error was not
only plain, but that it affected her substantial rights and implicated the fairness, integrity, or
reputation of the trial. See Johnson, 520 U.S. at 466–69.

         We have already held that count 23 was improperly charged, and that her conviction on
that count must thus be vacated. While Bankston also seeks to invalidate her convictions on the
other counts based on alleged prosecutorial misconduct in pursuing the § 1001 charge, she cites
no precedent supporting her contention that the prosecutor’s decision to pursue a charge—
however ill-conceived—can by itself constitute a due process error, absent evidence of an
improper motive, inflammatory rhetoric, or other conduct “tend[ing] to mislead the jury or


         8
          The government does not respond to any of these arguments. Instead, the government argues only that
Bankston cannot raise an ineffective assistance of counsel claim because her decision to represent herself “rendered
[her counsel’s] actions beyond the scope of an ineffective assistance challenge.” The government is wrong.
Bankston has a viable ineffective assistance claim because the conduct to which she objects—her counsel’s failure
to move to dismiss count 23—occurred during the time when she was represented by counsel, i.e., after the district
judge appointed trial counsel and before Bankston began representing herself at voir dire. See Wilson v. Parker,
515 F.3d 682, 698 (6th Cir. 2008) (stating that, where the conduct that gives rise to an ineffective assistance of
counsel claim occurs prior to waiver, “the logic . . . that exercising the Faretta right to represent oneself necessarily
eliminates claims of ineffective assistance does not apply”).
No. 14-3723                           United States v. Bankston                      Page 19


prejudice the defendant.” Cristini v. McKee, 526 F.3d 888, 899 (6th Cir. 2008) (quoting United
States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)). Indeed, while the prosecutor’s pursuit of
count 23 in light of a facially applicable statutory exemption was “improper,” we cannot
conclude here that such behavior was “flagrant,” as typically required by our case law. Cristini,
526 F.3d at 899; see United States v. Carroll, 26 F.3d 1380, 1385–86 (6th Cir. 1994) (holding
that improper but non-flagrant prosecutorial conduct requires a new trial if “(1) proof of
defendant’s guilt is not overwhelming, and (2) defense counsel objected, and (3) the trial court
failed to cure the error with an admonishment to the jury.”) (quoting United States v. Bess,
593 F.2d 749, 757 (6th Cir. 1979)).

        Moreover, Bankston has not shown the requisite prejudice to warrant a new trial on the
remaining twenty-two counts. See Carroll, 26 F.3d at 1385–86. Bankston does not claim that
the evidence on most of the other counts was insufficient to support the jury’s verdicts, and our
review of the record persuades us that the jury heard ample evidence of her guilt. See, e.g., infra
Section II.D (rejecting sufficiency-of-the-evidence claim concerning counts 16 and 18).
Additionally, the district court gave a limiting instruction about her prior convictions, remarking
to the jury:

        Let me interrupt and say that the fact that the defendant has these prior
        convictions is not any proof whatsoever that she’s committed the crimes that are
        alleged in the third superseding indictment. That testimony is admissible, so you
        may consider it with respect to her credibility. That’s the purpose for the court
        admitting the testimony to come in. You may consider the fact of a prior
        conviction as it relates to your determination as to her credibility, but it is—the
        fact of the prior convictions, the fact of being in prison is no proof that she’s
        committed any of the crimes that are alleged in the superseding indictment—third
        superseding indictment.

In short, Bankston’s claim of prosecutorial misconduct fails because she has not shown any of
the requisite elements for establishing a due process error—that the proof of her guilt was not
overwhelming, that she objected to the improper conduct, and that the court failed to cure the
error with an admonishment to the jury. See Carroll, 26 F.3d at 1390. Accordingly, we reject
Bankston’s claim that she is entitled to a new trial based on prosecutorial misconduct.
No. 14-3723                         United States v. Bankston                         Page 20


       2. Judicial Bias

       Bankston’s judicial bias claim is also unpreserved and hence is subject to plain error
review. See United States v. Hynes, 467 F.3d 951, 957–58 (6th Cir. 2006) (“[W]here the
defendant does not contemporaneously object to the trial court’s conduct, we review that conduct
under the plain-error standard.”). The claim would be unavailing under any standard, however.
While Bankston argues that the trial judge should have recused himself because he was the
“victim” of the false statement crime, she fails to explain how the one remark by the judge on
which she relies—“where is the evidence that she submitted the handwritten letter to me?”—
reflects bias. Indeed, contrary to Bankston’s contention, the district judge suggested dismissing
count 23. The government declined, stating, “you can’t lie to a court. I’m not going to allow that
to occur.” In the end, there is no indication in the record that the judge exhibited a “high degree
of favoritism or antagonism” necessary to support judicial bias. Liteky v. United States, 510 U.S.
540, 555 (1994); see also id. at 551 (stating that a judge’s conduct may be “characterized as
‘bias’ or ‘prejudice’” warranting recusal only if “it is so extreme as to display clear inability to
render fair judgment”); Lyell v. Renico, 470 F.3d 1177, 1187 (6th Cir. 2006) (holding that a
recusal was warranted where the trial judge “took over the cross-examination of the central
witness in the case . . . and elicited information not revealed on direct examination” and “chose
to limit questioning [of the witness] on her own” absent objection from the prosecutor). Thus,
we reject Bankston’s claim of judicial bias.

       3. Ineffective Assistance of Counsel

       Bankston asserts that her court-appointed attorney provided ineffective assistance in
failing to object to and move to dismiss count 23 during the period in which the attorney
represented Bankston. While we do not typically consider ineffective assistance of counsel
claims on direct appeal, we depart from that practice where “the existing record is adequate to
assess properly the merits of the claim.” Hynes, 467 F.3d at 969 (quoting United States v.
Franklin, 415 F.3d 537, 555–56 (6th Cir. 2005)). Here, we find that the record is adequate and
hence review Bankston’s claim de novo. See Mallett v. United States, 334 F.3d 491, 497 (6th
Cir. 2003) (“Ineffective assistance of counsel claims are mixed questions of law and fact, which
we review de novo on appeal.”).
No. 14-3723                         United States v. Bankston                        Page 21


       Under Strickland v. Washington, 466 U.S. 668, 687–94 (1984), a defendant must satisfy a
two-pronged standard to demonstrate ineffective assistance of counsel. First, the defendant must
show that counsel’s performance was “deficient,” i.e., that it “fell below an objective standard of
reasonableness.” Id. at 687–88. Second, the defendant must show that the deficient performance
by counsel was prejudicial to the defense. Id. This showing of prejudice requires “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.; accord Rayner v. Mills, 685 F.3d 631, 636 (6th Cir. 2012).

       Trial counsel’s failure to object to or move to dismiss count 23 satisfies the performance
prong of Strickland. See Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001) (holding that
counsel’s “complete ignorance of the relevant law under which his client was charged” fell
below the objective standard of reasonableness); Washington v. Hofbauer, 228 F.3d 689, 702
(6th Cir. 2000) (finding that counsel’s failure to object to prosecutorial misconduct may
constitute a deficient performance where the “failure is due to . . . lack of knowledge of
controlling law, rather than reasonable trial strategy”). We also find prejudice as to count 23
because there is a reasonable probability that, had Bankston’s counsel objected to count 23, the
charge would have been dismissed. See Strickland, 466 U.S. at 694 (stating that a reasonable
probability is “a probability sufficient to undermine confidence in the outcome”).             This
prejudice, however, has been addressed by our conclusion that her conviction on count 23 must
be stricken based on the indictment’s failure to state an offense. In other words, any remedy for
ineffective assistance of counsel regarding count 23 is mooted by the remedy we have already
afforded on an alternative basis.

       While Bankston makes passing references to broader prejudice to her convictions on
other counts resulting from the revelation at trial of her prior convictions, she does not develop
this argument fully. Hence, the claim is waived. See United States v. Sandridge, 385 F.3d 1032,
1035–36 (6th Cir. 2004) (“Issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.”) (quoting Popovich v. Cuyahoga Cnty.
Ct. of Common Pleas, 276 F.3d 808, 823 (6th Cir. 2002)); McPherson v. Kelsey, 125 F.3d 989,
995–96 (6th Cir. 1997) (“It is not sufficient for a party to mention a possible argument in the
most skeletal way, leaving the court to . . . put flesh on its bones.”) (quoting Citizens Awareness
No. 14-3723                          United States v. Bankston                         Page 22


Network, Inc. v. U.S. Nuclear Reg. Comm’n, 59 F.3d 284, 293–94 (1st Cir. 1995)). We add,
moreover, that even if we were to address the claim of broader prejudice, we would find no such
prejudice for the reasons stated supra, Section II.C.1—namely, that the jury otherwise heard
ample evidence of her guilt and the court gave a limiting instruction.

       4. Cumulative Effect

       Bankston argues that, even if each asserted impropriety relating to her count
23 conviction does not on its own result in denial of her constitutional right to a fair trial, the
cumulative effect of the errors created an unfair trial setting that violated her due process rights.
The existence of only one error, however, eliminates the foundation of her cumulative-effect
theory. Indeed, our recognition of the cumulative-effect theory has been limited to situations
where “[e]rrors that might not be so prejudicial as to amount to a deprivation of due process
when considered alone, may cumulatively produce a trial setting that is fundamentally unfair.”
United States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000) (quoting Walker v. Engle,
703 F.2d 959, 963 (6th Cir. 1983)). Here, we conclude that there is no prosecutorial misconduct
or judicial bias, not that any error committed by the prosecutor or the judge was harmless. See
United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004) (holding that, to establish cumulative
error, defendant must show that “the combined effect of individually harmless errors was so
prejudicial as to render his trial fundamentally unfair”). In short, Bankston’s cumulative effect
argument fails because there is no cumulation of errors. See, e.g., Baze v. Parker, 371 F.3d 310,
330 (6th Cir. 2004) (denying a due process claim based on the cumulative effect argument
because the defendant “cannot establish any errors to cumulate”).

D. Insufficiency of Evidence as to Count 16 Wire Fraud and Count 18 Mail Fraud

       Bankston argues that the record is insufficient to support the jury’s findings of guilt on
count 16, alleging wire fraud, and count 18, alleging mail fraud, because the government failed
to prove the use of an interstate wire communication or the mails. We review sufficiency of the
evidence de novo, affirming the defendant’s convictions if, “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Cunningham, 679 F.3d 355,
No. 14-3723                         United States v. Bankston                        Page 23


369 (6th Cir. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We must draw “all
available inferences and resolve all issues of credibility in favor of the jury’s verdict.” United
States v. Smith, 749 F.3d 465, 477 (6th Cir. 2014) (quoting United States v. Salgado, 250 F.3d
438, 446 (6th Cir. 2001)).

       1. Count 16 Wire Fraud

       To prove wire fraud under 18 U.S.C. § 1343, the government must show, inter alia, that
the defendant “used or caused to be used an interstate wire communication in furtherance of the
scheme.” Cunningham, 679 F.3d at 370. The indictment stated that Bankston filled out the
Lending Club loan application online from her home in Ohio and, in doing so, connected to the
Lending Club server physically located in Las Vegas, Nevada. Bankston contends that the
government failed to prove that the server was in fact located in Las Vegas or, alternatively, that
it was located in any specific place outside Ohio.

       The record belies Bankston’s contention. Eric Kinney, from Lending Club’s Fraud
Operations, testified that, while he could not be certain as to which, the server could have been
located in “Nevada, California, Santa Clara” at the time that Bankston filled out the loan
application. By contrast, there was no evidence suggesting that the server could have been in
Ohio. The government was not obliged to prove the actual location of the Lending Club server,
only that Bankston’s transaction involved the use of an interstate wire. See Gambill v. United
States, 276 F.2d 180, 181 (6th Cir. 1960) (holding that the government “need not prove
everything in an indictment but only so much thereof as establishes a violation of the statute”).
Viewing the testimony in the light most favorable to the prosecution, we conclude that sufficient
evidence supported the jury’s finding that the government proved the interstate wire element of
count 16.

       2. Count 18 Mail Fraud

       Bankston’s argument regarding count 18 fails for similar reasons.           Mail fraud, as
specified in 18 U.S.C. § 1341, requires a showing, inter alia, that the defendant’s conduct
involved “a use of the mails.” United States v. Crossley, 224 F.3d 847, 857 (6th Cir. 2000).
While Bankston argues that the government failed to show the use of the mails element
No. 14-3723                               United States v. Bankston                                 Page 24


(particularly that the Citizens Bank credit card was mailed in the first place), witness testimony
at trial suggests otherwise. Bankston’s co-conspirator Hale testified that she “knew” that the
Citizens Bank credit card “ended up” with Bankston, and that she was familiar with Bankston’s
practice of receiving “documents in the mail such as debit cards,” which were directed to
individuals whose identities she had obtained, including that of Rachelle Butler. Butler—the
victim of Bankston’s identity theft—also testified as to the bank statements from Citizens Bank
documenting the use of the credit card, which appeared to have been mailed to Butler, but which
she did not receive seemingly due to the mail hold that Bankston had placed on her address.
Based on these testimonies, we cannot conclude that no rational juror could have found the use
of the mails beyond a reasonable doubt.

E. Sentencing

        Bankston argues that the district court committed multiple errors in sentencing that
require resentencing on all but the aggravated identity theft counts (counts 6, 8, 19, and 22).9
Specifically, Bankston contends that the district court (i) incorrectly used a base offense level
(“BOL”) of 27 when it had previously determined the correct level to be 25, (ii) departed from
the recommended criminal history category (“CHC”) without an adequate explanation, and (iii)
failed to rule on the disputed loss amounts from Bankston’s fraudulent schemes.                                The
government concedes that the district judge erred in using a BOL of 27 and agrees that the case
should be remanded for resentencing on all non-aggravated identity theft counts.                               The
government does not address the other alleged sentencing errors.

        It is clear, based on the record and the parties’ agreement on the issue, that the district
judge erroneously used a BOL of 27 when it had earlier ruled that the level should be 25.
Compare R. 254: Sentencing Hr’g Tr. at 4842–43 (the district judge remarking, “so I get an
adjusted offense level of 25”) with id. at 4844–45 (the judge remarking, without an explanation,



        9
          Aggravated identity theft convictions are treated separately for sentencing purposes, with each conviction
supporting a mandatory two-year sentence that has to be served consecutively with the sentence imposed for other
crimes. See 18 U.S.C. § 1028A(b)(2). Where, as here, the defendant is convicted of more than one aggravated
identity theft charges, the sentences for all aggravated identity theft convictions may, in the discretion of the
sentencing court, run concurrently with each other. See id. § 1028A(b)(4).
No. 14-3723                          United States v. Bankston                         Page 25


that “[t]he offense level has been fixed at 27”). This error, alone, warrants remanding the case
for resentencing on all but the aggravated identity theft counts.

       We also address, however, the two additional errors raised by Bankston because they are
relevant to the proceedings on remand. Her argument that the district court failed to explain its
departure from the recommended CHC appears not to have been raised in the district court and is
thus subject to plain error review. See United States v. Mabee, 765 F.3d 666, 671 (6th Cir.
2014). We have held that “[a] court departing upward from a defendant’s calculated [CHC]”
must “‘articulate its reasons for departing from the guidelines in language relating to the
guidelines.’” United States v. Schultz, 14 F.3d 1093, 1101 (6th Cir. 1994) (quoting United States
v. Kennedy, 893 F.2d 825, 829 (6th Cir. 1990)). Here, the district judge departed from the
calculated CHC of V to VI without providing any explanation. Simply stating that the court
“grants the motion and affixes the criminal history category as VI”—without specifying the
reasons “in language relating to the guidelines,” Schultz, 14 F.3d at 1101—is not sufficient.

       Bankston’s claim that the district court failed to resolve the dispute over the loss amounts
is preserved, and we review it de novo. See United States v. Triana, 468 F.3d 308, 321 (6th Cir.
2006). Bankston points to three separate loss amounts—one concerning the Ohio Department of
Jobs and Family Services (“ODJFS”), another concerning Wells Fargo, and another one
concerning the Dollar Bank. Federal Rule of Criminal Procedure 32(i)(3)(B) states that a
sentencing court “must—for any disputed portion of the presentence report or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary either because the matter
will not affect sentencing, or because the court will not consider the matter in sentencing.” We
have required “literal compliance” with this rule. United States v. Nelson, 356 F.3d 719, 722–23
(6th Cir. 2004) (citing United States v. Monus, 128 F.3d 376, 396 (6th Cir. 1997)). Hence, while
the district court “need not establish the value of the loss with precision,” the court must “publish
the resolution of contested factual matters that formed the basis of the calculation.” Id. at 723.
A mere expression of an agreement with the government’s proposed loss amount—without
“explain[ing] how [the court] calculated the amount of loss and . . . respond[ing] to the
defendant’s ‘specific factual objections to the methods of calculation’”—does not suffice. Id.
(quoting. Monus, 128 F.3d at 396–97).
No. 14-3723                               United States v. Bankston                                Page 26


        Here, the district court determined that a dispute on the Dollar Bank loss amount does not
affect sentencing. It is not apparent from the record whether the court ruled on the disputed loss
amounts of ODJFS and Wells Fargo. When the government explained the fraudulent scheme
that resulted in ODJFS’s loss, the district court merely asked that the loss be “demonstrated by
some particular exhibit,” but did not specifically find that the government's loss amount was
correct or explain how the court arrived at that amount. Similarly, we are unable to discern from
the record—especially in light of the government’s failure to rebut Bankston's claim in its
brief—any explanation from the district court about why Wells Fargo’s loss was not inflated,
contrary to Bankston’s claim. Accordingly, in remanding the case for resentencing, we instruct
the district court to provide an explanation for any upward departure in the CHC and resolve the
remaining factual disputes regarding the loss amounts.10

                                                       III.

        For the foregoing reasons, we VACATE Bankston’s conviction on count 23, AFFIRM
her other convictions, and REMAND the case for resentencing.




        10
            We decline to address whether the district court incorrectly calculated the loss amounts. Bankston will
have an opportunity to make this argument to the district court on remand. We also decline to address whether the
district judge’s remark—that he has “32 months of discretion” within the 130-to-162-months guideline range—
reflects his mistaken understanding that the guidelines sentencing range is binding. To the extent that the judge’s
remark suggests anything more than inartful phrasing, the district court on remand should treat the guidelines as
advisory in accordance with United States v. Booker, 543 U.S. 220, 266–67 (2005).
