United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 16-3498
      ___________________________

           United States of America

      lllllllllllllllllllll Plaintiff - Appellee

                         v.

                 Jason Springer

    lllllllllllllllllllll Defendant - Appellant
       ___________________________

              No. 16-3695
      ___________________________

           United States of America

      lllllllllllllllllllll Plaintiff - Appellee

                         v.

               Rick Makohoniuk

    lllllllllllllllllllll Defendant - Appellant
                    ____________

  Appeals from United States District Court
for the Southern District of Iowa - Des Moines
                ____________
                              Submitted: June 7, 2017
                               Filed: August 9, 2017
                                  ____________

Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
                         ____________

ARNOLD, Circuit Judge.

      Jason Springer and Rick Makohoniuk appeal their convictions for bank fraud
under 18 U.S.C. § 1344(1), raising a myriad of discursive challenges. We affirm the
judgment of the district court.1

       This story begins with two other people—Nathan Smith and Patrick Steven.
Smith and Steven created a business to help people who were struggling to repay
mortgage-secured loans by negotiating with lenders to modify the terms of those
loans. They discovered that some homeowners did not want to modify their loans but
wanted instead to escape them by selling their homes and paying off the debt. Many
of these homeowners, however, owed more than their homes were worth, so a sale
could not satisfy the debt in full. Nonetheless, lenders sometimes allowed
homeowners to sell their homes for less than the remaining debt and would accept the
proceeds in full satisfaction of the debt. Lenders agreed to these so-called "short
sales" partly because of the high costs of foreclosure. So in addition to negotiating
loan modifications, Smith and Steven began negotiating short sales with lenders on
behalf of cash-strapped homeowners.

       Smith and Steven devised a strategy to make money from these short sales:
their business would pitch lenders on a short sale by representing that a buyer stood


      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

                                         -2-
willing to purchase the property, who, unbeknownst to the lender, would be Smith or
Steven. While negotiating the short sale, Smith and Steven would try to find someone
to buy the property from them for more than they were going to pay for it in the short
sale. Once they found a buyer and received a lender's approval to make the short sale,
Smith and Steven would close the short sale and soon after (sometimes on the same
day) close on the sale to the buyer they had located and keep the difference. They sold
the property quickly so that the proceeds they received selling the property could fund
their purchase of the property. So, for example, they would purchase property in a
short sale for, say, $50,000, and then immediately resell it for $100,000, and use the
proceeds received in the $100,000 sale to fund their $50,000 purchase.

       The indictment charged Smith and Steven with bank fraud for misrepresenting
and concealing the fact that they had agreements to flip the properties after the short
sale. The indictment also charged the appellants for participating in the alleged
scheme. Springer was an attorney who allegedly helped Smith and Steven carry out
the scheme by closing several of the transactions. He allegedly completed each
transaction's HUD-1 settlement statement falsely by representing that Smith and
Steven had paid cash at closing when he knew that they had not. Makohoniuk was a
real estate agent who the government alleged misrepresented that Smith and Steven
did not have an agreement to flip a particular house when he knew that they did.
Smith and Steven pleaded guilty and cooperated with the government, but Springer
and Makohoniuk opted to take their cases to trial.

       Employees for the lenders testified at the trial that the lenders would not have
approved the short sales had they known of the property flips because they would
have wanted to realize the higher price that the ultimate buyer paid. In fact, many of
these lenders had rules to prevent quick property flips after a short sale. For example,
many required that the properties be marketed for a certain length of time before they
would approve a short sale, which helped ensure that they would receive the best
offer possible. To circumvent this requirement, Smith and Steven gave lenders false

                                          -3-
listing agreements with real estate agents and false for-sale-by-owner letters
purporting to show that the properties had been marketed, when they actually had not.
Lenders also required the short sale to be at arm's length. To overcome this hurdle,
Smith and Steven would identify a trust as the buyer whose trustee was either Smith
or Steven, whichever one was not negotiating with that particular lender. By
structuring the transaction this way, Smith and Steven were able to conceal that they
were not only negotiating on behalf of the homeowner but also buying the property.
Another lenders' rule was that the buyer in the short sale had to demonstrate that it
had cash or financing to purchase the property. In response, Smith and Steven
provided false statements showing that they had financing to buy the property. At
least one lender required a signed affidavit stating that no agreements were in place
with other buyers to sell the property immediately after the short sale. Finally, lenders
for the ultimate purchaser of the property typically would not approve a loan if the
property had changed ownership within a certain amount of time, such as 90 days. To
avoid this requirement, Smith and Steven convinced their clients to deed their
properties into the trust almost immediately after agreeing to negotiate the short sale
on their behalf to make it appear as though ownership had changed much earlier than
when the short sale was approved and consummated.

        The appellants first maintain that insufficient evidence supports their
convictions for bank fraud under 18 U.S.C. § 1344(1), a crime that occurs when
someone "knowingly executes, or attempts to execute, a scheme or artifice . . . to
defraud a financial institution." Makohoniuk moved for judgment of acquittal on the
ground that the government had failed to prove that the entity he defrauded was a
"financial institution" under § 1344(1). To be a "financial institution," the entity must
be, as relevant here, insured by the FDIC or a "mortgage lending business." 18 U.S.C.
§ 20(1), (10). The government maintained that the entity Makohoniuk
defrauded—GMAC—was indeed a mortgage lending business, that is, "an
organization which finances or refinances any debt secured by an interest in real
estate, including private mortgage companies and any subsidiaries of such

                                          -4-
organizations, and whose activities affect interstate or foreign commerce." 18 U.S.C.
§ 27. The district court agreed with the government that GMAC was a mortgage
lending business and therefore denied Makohoniuk's motion. We review the denial
of a motion for a judgment of acquittal based on evidence sufficiency de novo, and
we will affirm unless, viewing the evidence in a light most favorable to the
government and accepting all reasonable inferences that can be drawn in favor of the
verdict, no reasonable jury could have found the defendant guilty. United States v.
Chatmon, 742 F.3d 350, 352 (8th Cir. 2014).

        The district court concluded that GMAC was a mortgage lending business
because a representative from the U.S. Department of Housing and Urban
Development testified that, at the time at issue, GMAC was in the mortgage lending
business since it had made hundreds or thousands of loans secured by mortgages in
2010 and 2011 in states all across the country. Makohoniuk contends that this
testimony falls short of proving that GMAC's activities affect interstate commerce or
that GMAC owned this particular loan. We disagree. Construing the testimony in a
light most favorable to the government, we think the fact that GMAC made hundreds
or even thousands of loans in states throughout the country sufficiently establishes
that its activities affect interstate commerce. And we discern no requirement in the
definition of "mortgage lending business" that the business own the particular loan
in question; it need only finance or refinance any debt secured by an interest in real
estate, or, in other words, be in the interstate mortgage lending business in general.

       Makohoniuk and Springer raise a somewhat similar but nevertheless different
argument on appeal. They maintain that the government failed to establish that the
precise corporate entities they were charged with defrauding were "financial
institutions." They invoke our decision in United States v. Alexander where we
vacated a bank fraud conviction under 18 U.S.C. § 1014. 679 F.3d 721, 728 (8th Cir.
2012). There, the defendant stipulated that Bank of America was FDIC insured, but
the evidence showed that entities named Bank of America, N.A., and Bank of

                                         -5-
America Mortgage were the victims of the fraud. We explained that since the
stipulation was the only evidence of FDIC insurance in the case, and it did not
mention Bank of America, N.A. or Bank of America Mortgage, the government had
failed to establish that the defrauded entities were FDIC insured.

       Because Springer and Makohoniuk did not make this argument to the district
court, we review for plain error only, Byers v. United States, 561 F.3d 832, 836 (8th
Cir. 2009), and will reverse only if they show that the district court committed a plain
error affecting their substantial rights and seriously affecting the fairness, integrity,
or public reputation of judicial proceedings. United States v. Binkholder, 832 F.3d
923, 930 (8th Cir. 2016). Springer and Makohoniuk, however, emphasize that we and
other courts have labeled this and similar elements as "jurisdictional" because they
require a connection to interstate commerce. See Alexander, 679 F.3d at 726; United
States v. Ayewoh, 627 F.3d 914, 917 (1st Cir. 2010). Thus, they contend, the
insufficiency of the evidence on this element can be raised anytime and so cannot be
subject to mere plain-error review.

       But when courts refer to an element connected to interstate commerce as
jurisdictional, they are talking about how Congress got power to criminalize certain
acts or to legislate over a particular field. See Torres v. Lynch, 136 S. Ct. 1619,
1624–25 (2016). In other words, they are talking about legislative jurisdiction. That
does not mean that the government's failure to establish a connection with interstate
commerce in a particular case deprives the court of jurisdiction over that case. See
United States v. Foster, 443 F.3d 978, 981 (8th Cir. 2006). It just means the
government loses because it failed to prove an element of the offense. We therefore
reject Springer and Makohoniuk's argument and review for plain error.

       The court in Alexander reversed because the government did not prove that the
entity stipulated to be FDIC insured was the entity defrauded. Here, however,
witnesses testified on each count that the entity for whom they worked was FDIC

                                          -6-
insured (with GMAC being the lone exception, but as already stated, other evidence
showed that GMAC was a mortgage lending business), that the defendants'
misrepresentations harmed those FDIC-insured entities in their capacities as owners
or servicers of the notes, and that the entities would not have acted as they did if they
had known about the misrepresentations. In other words, the evidence demonstrates
that FDIC-insured entities were the entities defrauded. Alexander is simply out of the
case, and we see no error here, much less a plain one.

       Springer and Makohoniuk next argue that there was insufficient evidence that
the appellants intended to cause a financial loss. We have specifically held that the
government need not show an intent to cause a financial loss to prove bank fraud
under § 1344(1). United States v. Staples, 435 F.3d 860, 867 (8th Cir. 2006). Springer
and Makohoniuk maintain, though, that a recent Supreme Court decision undermines
that case. See Shaw v. United States, 137 S. Ct. 462 (2016). There, the Court reviewed
a challenge that a conviction under § 1344(1) could not stand because the defendant
intended to cheat a bank depositor and not the bank itself. Since the Court made it
clear that § 1344(1) "demands neither a showing of ultimate financial loss nor a
showing of intent to cause financial loss," id. at 467, we fail to see how Shaw calls
into question our holding in Staples. It is true that the Court said later in the opinion
that "[t]he parties agree, as do we, that the scheme must be one to deceive the bank
and deprive it of something of value," id. at 469, but we think it clear that "financial
loss" means something narrower than "something of value." The Court in Shaw in
fact recognized that financial institutions can suffer losses like the right to use
property or a chance to bargain knowing all the facts even if the financial institutions
get a quid pro quo of appropriate value or do not suffer unreimbursed loss. Id. at 467.
Shaw therefore does not undercut our holding in Staples. It supports it.

       The appellants similarly maintain that there was insufficient evidence showing
that the appellants' scheme subjected the financial institutions to a risk of loss.
Assuming that the government must make such a showing under § 1344(1), a point

                                          -7-
we need not decide here, we think that it has done so. Each time a financial institution
approved a short sale based on misleading information, it relinquished its mortgage
interest for less than what it could have if it had known the actual circumstances;
therefore, each time the scheme was executed, the financial institution suffered an
actual loss, and therefore a risk of one. And there was always the risk that the closing
on the second transaction might hit a snag, and so Smith and Steven would not be
able to pay for property. Smith testified at trial that, one way they were able to close
on property without having funds in hand was by giving a check when they bought
the property, even though the account on which the checks were drawn did not
contain enough money to cover the check; when they sold the house, they would have
money wired into their account before the check was presented for payment. If it had
come to light that a check was worthless after the financial institution had already
released its mortgage, then the financial institution could face a significant loss. We
therefore reject the appellants' argument on this point.

       We likewise reject the appellants' related argument that the jury instructions
were faulty because they did not mention a risk of loss. Appellants argue that, without
a risk-of-loss qualification, the instructions invite bank-fraud convictions for trivial
misrepresentations like the day of the week on which a transaction occurred. We
disagree that the court's instructions put the appellants at risk of being convicted of
bank fraud based on trivial irrelevancies, because the instructions required that the
appellants' misrepresentations or factual concealments and omissions be "material,"
meaning that they must have "a natural tendency to influence, or [be] capable of
influencing, the decision of the institution in deciding whether to engage or not to
engage in a particular transaction." We are convinced that the "materiality"
qualification obviates any fear that the court's instructions could allow the jury to
convict the appellants for harmless misrepresentations.

      The appellants' contention that the misrepresentations here were not material
is meritless. The jury had ample evidence to find materiality because each financial

                                          -8-
institution's representative testified that the financial institution would not have
approved the short sale had it known the actual circumstances.

       The appellants further contend that the government proved facts at trial that
differed from the facts it had alleged in the indictment. As part of the Sixth
Amendment guarantee that the accused shall "be informed of the nature and cause of
the accusation," the government cannot materially vary the proof presented at trial
from the allegations in the indictment. See United States v. Villarreal, 707 F.3d 942,
962 (8th Cir. 2013). The primary concern is whether the indictment fully and fairly
apprised the defendants of the charges they must meet at trial. United States v.
Thomas, 791 F.3d 889, 897 (8th Cir. 2015).

       The indictment here fully and fairly apprised Springer and Makohoniuk of the
charges that they would have to contest at trial. The indictment set forth the various
misrepresentations and concealments that the appellants had made to further their
scheme. After reciting those misrepresentations and concealments, the indictment
then set forth each count charged by stating that the relevant defendants executed a
scheme to defraud by submitting false HUD-1s. The appellants maintain that they
were essentially prepared to contest only the false settlement statements and not the
other misrepresentations and concealments despite what the indictment plainly
alleged. We do not credit this argument. The indictment merely tracks the statute,
which criminalizes the knowing execution of a scheme to defraud a financial
institution. See 18 U.S.C. § 1344(1). It makes sense that the government would first
lay out the broad bank-fraud scheme and then charge the defendants with a count for
each time they executed, or capitalized on, that scheme.

       We are unable to agree with the appellants' related contention that submission
of an aiding-and-abetting instruction was error. They assert that the instruction was
inappropriate because, "in light of the irrelevant and prejudicial information in the
record, it seems to justify the jury in interpreting the 'scheme and artifice' as

                                         -9-
considerably broader than what was charged." But again, the charges were not limited
to the false HUD-1s only; the jury could, in fact should, consider the underlying
scheme to defraud, which explains how the defendants duped the financial
institutions into approving the short sales. For the same reasons, we reject the
appellants' argument that the government violated Federal Rule of Evidence 404(b)
by admitting evidence of the underlying scheme.

      The appellants maintain as well that the HUD-1s themselves were not false.
Leaving aside the undeveloped issue of whether the actual execution of the fraudulent
scheme must itself be fraudulent, we think that the jury had sufficient evidence to
conclude that these HUD-1s were false. The HUD-1s stated that Smith and Steven
had brought a certain amount of cash to the settlement when in fact they had not; the
money they used to pay for the properties arrived later, after the settlement. By
completing the HUD-1s this way, they were able to conceal that they were about to
close on a quick flip of the property.

      Makohoniuk argues that he had nothing to do with the HUD-1s, so his
conviction should be reversed. But Makohoniuk participated in the scheme to defraud
by signing an affidavit saying that there was no agreement to flip certain property
when he knew otherwise, and then by helping to conceal this misrepresentation.
Further, the jury could have found, as the government argued, that Makohoniuk aided
and abetted Springer in completing the false HUD-1 by simply participating in the
scheme. For these same reasons, we think it entirely proper that the district court did
not sua sponte sever his trial from Springer's.

      We reject, finally, Makohoniuk's argument that he did not knowingly waive his
right to testify at trial. The record shows that the district court advised both
defendants of this right and that it was their own decision whether to waive it.
Makohoniuk specifically stated that he understood what the court was saying. His



                                         -10-
attorney said that they had discussed the matter and decided that he would not testify.
The record belies the argument.

      Affirmed.
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