     10-2441-cr
     United States v. Gyanbaah, et al.

 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2011

 4   (Argued:    October 14, 2011               Decided: November 8, 2012)

 5                             Docket No. 10-2441-cr

 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

 7   UNITED STATES OF AMERICA,
 8              Appellee,
 9
10                   v.
11
12   FELIX NKANSAH,
13              Defendant-Appellant,
14
15   KWAME GYANBAAH, DAVID DOSOO,
16              Defendants.
17
18   - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - -
19
20   B e f o r e: WINTER, LYNCH, and CARNEY, Circuit Judges.
21
22         Appeal from a conviction by a jury in the United States

23   District Court for the Southern District of New York (Jed S.

24   Rakoff, Judge), for conspiring to, and filing, false claims with
25   the IRS, bank fraud, aggravated identity-theft, and identity-

26   theft.   We affirm in part, vacate in part, and remand for

27   resentencing.

28         Judge Lynch concurs in a separate opinion.

29                                 ROSS M. BAGLEY (Robert W. Ray, on the
30                                 brief), Pryor Cashman LLP, New York, NY,
31                                 for Defendant-Appellant.
32
33

                                          1
 1                              TELEMACHUS P. KASULIS, Assistant United
 2                              States Attorney (Nicholas J. Lewin &
 3                              Jesse M. Furman, Assistant United States
 4                              Attorneys, on the brief), for Preet
 5                              Bharara, United States Attorney for the
 6                              Southern District of New York, New York,
 7                              NY, for Appellee.
 8
 9   WINTER, Circuit Judge:
10
11        Felix Nkansah appeals from his conviction after a jury trial

12   before Judge Rakoff for:   (i) conspiracy to file false claims

13   with the Internal Revenue Service (“IRS”) in violation of 18

14   U.S.C. § 286 (“Count One”); (ii) filing false claims with the IRS

15   in violation of 18 U.S.C. § 287 (“Count Two”); (iii) bank fraud

16   in violation of 18 U.S.C. § 1344 (“Count Three”); (iv) aggravated

17   identity-theft related to the bank fraud charged in Count Three

18   in violation of 18 U.S.C. § 1028A(a)(1), (c)(5) (“Count Four”);

19   and (v) identity-theft in violation of 18 U.S.C. § 1028(a)(7),

20   (b)(1) (“Count Five”).

21        We hold that there was insufficient evidence for appellant’s

22   conviction on Count Three and that his conviction on Counts Three

23   and Four must, therefore, be vacated.     We find appellant’s other

24   arguments to be without merit but do not address his claim

25   regarding the substantive reasonableness of his sentence.

26                                BACKGROUND

27        Viewing the evidence in the light most favorable to the
28   government, see United States v. Chavez, 549 F.3d 119, 124 (2d
29   Cir. 2008), appellant was part of a group that, beginning in

30   early 2005 through August 2008, stole names, dates of birth, and

31   social security numbers from foster care, hospital, and childcare

32   databases.   This information was used to file thousands of
 1   fraudulent tax returns in the victims’ names with fictitious

 2   income figures, resulting in tax refunds either sent as a check

 3   to the address of a group member or electronically deposited into

 4   a bank account controlled by a group member.   The group,

 5   expecting about half the refunds to be approved by the IRS, filed

 6   for $2.2 million in fraudulent refunds and ultimately obtained

 7   $536,167.   When a refund was received in the form of a check made

 8   out to an identity-theft victim, a group member would forge the

 9   payee’s signature along with an endorsement over to the group

10   member.   The particular group member would deposit the check into

11   a controlled bank account and would soon thereafter withdraw the

12   money.

13        Appellant was linked to deposits at Commerce Bank, HSBC, and

14   Bank of America.   A search of his home and car revealed stolen

15   identity information, tax refund correspondence to identity-theft

16   victims sent to appellant’s address, and a computer with a

17   partially-completed tax refund made out in an identity-theft

18   victim’s name.   Other evidence linked nearly 70 fraudulent tax

19   returns to an IP address registered to appellant.   On the same

20   day, one of appellant’s bank accounts received two federal tax

21   refunds of several thousand dollars each.   Evidence linked

22   appellant to checks made out to identity-theft victims and

23   endorsed over to a “William K. Arthur.”   These checks were

24   deposited into a Bank of America account that appellant

25   controlled under that name.



                                      3
 1        Appellant was arrested on September 9, 2008 and ultimately

 2   charged with the five counts described above.      Count Five of the

 3   indictment for identity-theft did not include a reference to

 4   interstate commerce, an element of the crime for which he was

 5   convicted.    While on bail prior to trial, appellant fled to

 6   Canada where he was later apprehended and returned to the United

 7   States.   After an aborted plea deal, he was found guilty by a

 8   jury on January 29, 2010, on all five counts.      He was sentenced

 9   principally to 51 months’ imprisonment on each of Counts One

10   through Three and Five to run concurrently and 24 months’

11   imprisonment on Count Four to run consecutively to the other

12   counts.

13        At trial, the government sought to show that the banks in

14   which deposits were made by the group were at a risk of loss.

15   Special Agent Peck of the Secret Service testified:

16                When the bank transmits the funds to be
17                collected and it comes back as not accurate
18                or a counterfeit check or a fraudulent check,
19                they no longer will get those funds back and
20                they, most of the time, have already given
21                out the funds to a payee or someone else. It
22                is withdrawn.
23
24   He also testified that Commerce Bank suffered financial losses

25   “for not just Mr. Nkansah himself but the combined total in the

26   case” as a result of the scheme.       However, when pressed about

27   specific losses suffered by banks as a result of appellant’s

28   specific use of accounts, Agent Peck could not confirm that such

29   losses occurred.     He also testified that while he thought that

30   such banks bore the loss from accepting for deposit fraudulently

                                        4
 1   obtained Treasury checks, he was “unsure” if that theory was

 2   correct.

 3         During jury deliberations, the government inadvertently

 4   provided the jury with documents that had not been introduced

 5   into evidence.   In particular, a standard form proffer agreement

 6   was included.    Upon being notified of this by the government, the

 7   district court sent the courtroom deputy into the jury room,

 8   which had already been vacated for the evening, to retrieve the

 9   exhibit.   It was still in the manila folder in which it had been

10   originally housed.   The folder was still inside the Redweld in

11   which it had been given to the jury.      Because of the

12   circumstances surrounding the exhibit’s location, the court

13   concluded that it was likely that the jury had not seen the

14   proffer agreement.   The court further found that, even if the

15   jury had seen the proffer, it contained nothing in evidence and,
16   in any event, nothing material to any issue not already

17   established in the case -– usually from Nkansah’s own testimony.

18   Other documents mistakenly given to the jury were found to be

19   similarly duplicative of evidence already before the jury.

20                                DISCUSSION

21         We address each of appellant’s challenges in turn.
22   a)   Bank Fraud Conviction
23         We turn first to the sufficiency of the evidence regarding

24   appellant’s bank fraud conviction.



                                       5
 1        We note the familiar standard that sufficiency challenges

 2   are reviewed de novo, United States v. Leslie, 103 F.3d 1093,

 3   1100 (2d Cir. 1997), but a defendant challenging the sufficiency

 4   of the evidence bears a “heavy burden,” United States v. Gaskin,

 5   364 F.3d 438, 459 (2d Cir. 2004) (internal quotation marks

 6   omitted).   Appellant’s claim, however, turns largely upon the

 7   legal definition of the defendant’s state of mind that must be

 8   proven for purposes of a bank fraud conviction.

 9                    The federal bank fraud statute, 18

10               U.S.C. § 1344, provides:

11               Whoever knowingly executes, or attempts to
12               execute, a scheme or artifice --
13                    (1) to defraud a financial institution;
14                    or
15                    (2) to obtain any of the moneys, funds,
16                    credits, assets, securities, or other
17                    property owned by, or under the custody
18                    or control of, a financial institution,
19                    by means of false or fraudulent
20                    pretenses, representations, or promises;
21               shall be fined not more than $1,000,000 or
22               imprisoned not more than 30 years, or both.
23
24        Appellant knowingly used deception with regard to the bank

25   accounts he controlled:   (i) he opened them in the names of other

26   people as well as the fictional William K. Arthur; and (ii) he

27   deposited in the accounts checks fraudulently obtained from the

28   United States Treasury causing the bank to seek reimbursement

29   from the Treasury.   Appellant argues, however, that the

30   government was required to prove that he intended to victimize

31   the banks as opposed to the Treasury.   He claims that there was

32   no evidence of such an intent or even that the banks had actually


                                       6
 1   lost money.   In essence, he argues that the banks were no more

 2   victims of his deceptions than a bank in which someone opens an

 3   account under a false identity to conceal funds from a spouse or

 4   business partner.

 5        Appellant is correct that the bank fraud statute is not an

 6   open-ended, catch-all statute encompassing every fraud involving

 7   a transaction with a financial institution.   Rather, it is a

 8   specific intent crime requiring proof of an intent to victimize a

 9   bank by fraud.   See United States v. Rubin, 37 F.3d 49, 54 (2d

10   Cir. 1994).   “[A] federally insured or chartered bank must be the
11   actual or intended victim of the scheme.” United States v.
12   Stavroulakis, 952 F.2d 686,   694 (1992); see also United States

13   v. Blackmon, 839 F.2d 900, 906 (2d Cir. 1988) (“Where the victim

14   is not a bank and the fraud does not threaten the financial

15   integrity of a federally controlled or insured bank, there seems

16   no basis in the legislative history for finding coverage under

17   section 1344(a)(2).”); S. Rep. No. 98-225, at 377 (1983),

18   reprinted in 1984 U.S.C.C.A.N. 3182, 3517 (bank fraud Statute

19   designed to “assure a basis for federal prosecution of those who
20   victimize these banks through fraudulent schemes.”)   Therefore,

21   convictions for bank fraud are limited to situations where “the

22   defendant (1) engaged in a course of conduct designed to deceive

23   a federally chartered or insured financial institution into

24   releasing property; and (2) possessed an intent to victimize the
25   institution by exposing it to actual or potential loss.”    United
26   States v. Barrett, 178 F.3d 643, 647-48 (2d Cir. 1999).

                                      7
 1         Our concurring colleague takes serious issue with the need

 2   to prove intent to harm a financial institution, albeit he

 3   concedes that this element is well-established in our caselaw.

 4   We note only that the government has argued none of the points he

 5   makes and begins its discussion of this issue with the following

 6   statement: “The bank fraud statute was enacted to ‘protect[] the

 7   financial integrity of [federally guaranteed financial]

 8   institutions, and . . . assure a basis for Federal prosecution of

 9   those who victimize these banks through fraudulent schemes.’ S.

10   Rep. No. [98-225], [at] 377 (1983), reprinted in 1984

11   U.S.C.C.A.N. 3182, 3517.”       Brief of Appellee at 16, United States

12   v. Gyanbaah (Nkansah), 10-2441 (2d Cir. Apr. 13, 2011).             The

13   ensuing discussion then goes on to underline the need to prove

14   the intent to harm a financial institution.1

15         The government had to prove beyond a reasonable doubt that

16   appellant intended to expose the banks to losses.2           Were that

           1
             Our colleague notes that our opinion does not follow the literal
     language of the statute. We agree but also note that our colleague’s
     construction of the statute suffers from a similar failing. Read literally,
     the statute would encompass a fraudulent scheme inducing a victim to write a
     valid check to the perpetrator who then cashes it to obtain “moneys . . .
     under the custody or control” of a bank. However, our colleague avoids this
     reading of the statute by adding an element not in the statutory language,
     namely, that the scheme include a lie to the bank, albeit, in his view, a lie
     not harmful to the bank. In contrast, the language of the statute requires
     only fraudulent “representations” without any requirement that they be made to
     the financial institution. Requiring a lie to the financial institution thus
     adds an element not in the statutory language that is presumably inferred from
     the statutory purpose. The further element of a lie intending harm to the
     institution, required by our decisions, is an inference drawn more accurately
     from that same purpose.
           2
             Our concurring colleague expresses concern that this reading of the
     statute leaves a gap in the tools of federal law enforcement enabling many
     fraudsters to escape prosecution. We believe that concern to be exaggerated.
     The statute in question was designed to expand criminal liability beyond the
     wire or mail fraud statutes for persons who were also endangering the
     financial health of financial institutions. See S. Rep. No. 98-225, at 377-78

                                           8
 1   intent proven, the actuality, or even possibility, of losses

 2   would be irrelevant.      However, there is no direct evidence of

 3   appellant’s intent to victimize the banks at which he opened

 4   accounts under the name of others or the fictitious William K.

 5   Arthur and deposited fraudulently obtained Treasury checks.              The

 6   government therefore relies on inferences to be drawn from two

 7   pieces of circumstantial evidence:         (i) conversations between

 8   appellant and other participants in the scheme; and (ii) the

 9   actual exposure of the banks to loss as a result of appellant’s

10   deceptions, based largely on the testimony of Agent Peck.

11         Appellant and other participants in the scheme discussed

12   which banks would be the least likely to detect the scheme and/or

13   the quickest to make the proceeds from the deposits available for

14   withdrawal.    While these concerns surely support an inference of

15   an intent to avoid detection, on this record they have no

16   probative value as to an intent to injure the banks.            A bank’s
17   detection of appellant’s depositing a fraudulently obtained tax

18   refund check would lead to his arrest whether or not the bank was


     (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3517-18. It is hardly the case
     that by limiting the statute to its intended purpose -- prosecution of schemes
     intended to harm financial institutions -- prosecutors are left bereft of
     necessary authority. For an immediate example, our opinion leaves appellant's
     convictions for three federal felonies standing.
           The present issue arises only because the U.S. Treasury is not within
     the statute’s definition of a “financial institution.” See 18 U.S.C. § 20
     (listing exhaustively the entities that qualify as financial institutions for
     the purposes of title 18). Our decision leaves untouched the caselaw allowing
     a finding of intent to injure where the liability of drawee banks is clear,
     thereby fulfilling the congressional intent to protect banks from check-kiting
     schemes. See S. Rep. No. 98-225, at 378 (1983), reprinted in 1984
     U.S.C.C.A.N. 3182, 3518. Moreover, we leave untouched the statute's
     protection of banks from fraudulent practices in the securing of loans.



                                           9
 1   exposed to a loss.   If the Treasury detected the fraud first, it

 2   would notify the bank, and the bank’s efficiency at detection

 3   would be irrelevant.   The conversations are, therefore, not

 4   probative of appellant’s intent to injure the banks.

 5        The government also relies on the banks’ claimed exposure to

 6   losses resulting from appellant’s scheme as circumstantial

 7   evidence of appellant’s intent to victimize the banks.   It relies

 8   in this regard on cases in which we have affirmed bank fraud

 9   convictions based on such exposure absent direct evidence of the

10   defendant’s state of mind.   However, these cases all involved a

11   defendant who fraudulently sought to cause a bank to pay out to

12   the defendant some of a depositor’s account in that bank, e.g.,

13   cashing a forged check, see, e.g., United States v. Crisci, 273

14   F.3d 235 (2d Cir. 2001); Barrett, 178 F.3d 643, or to release

15   funds for which the releasing institution was liable, e.g.

16   presenting a falsely certified draft, see United States v.

17   Jacobs, 117 F.3d 82 (2d Cir. 1997).   Although the rationale of

18   these decisions is generally not elaborated, we read them to hold

19   where the direct legal exposure to losses is sufficiently well-
20   known, a jury may infer that the defendant intended to expose the

21   bank to the loss.

22        However, the widely understood exposure of a bank in such a

23   case is only a fact sufficient to support an inference of the

24   requisite state of mind.   Someone may well forge a check

25   believing that only the account holder will suffer a loss.     The

26   inference is, therefore, not mandatory, but permissible.    Such a

                                     10
 1   permissible inference cannot be extended to cases in which

 2   evidence of the state of mind is absent and the actual exposure

 3   of a bank to losses is unclear, remote, or non-existent.    See

 4   United States v. Rodriguez, 140 F.3d 163, 169 (2d Cir. 1998)

 5   (holding that when bank had no risk of loss because it was a

 6   holder in due course and where no other evidence showed intent, a

 7   bank fraud conviction must be overturned).

 8        In the instant matter, there is no clear, much less well-

 9   known, exposure of the banks to loss.    Indeed, until alerted by

10   the Treasury to the scheme, the banks may well have been holders

11   in due course with the risk of loss borne entirely by the
12   Treasury.   See id.
13        For example, appellant opened the William K. Arthur account

14   by providing a false passport as identification.   He used the

15   account from October 2006 through at least May 2008.   From

16   October 2007 through April 2008 he deposited several

17   fraudulently-obtained but genuine tax refund checks each month,

18   often withdrawing the balance soon thereafter.   The tax refund

19   checks were made out to an identity-theft victim, and appellant
20   would forge the victim’s signature on the check with an

21   endorsement over to William K. Arthur.   Appellant would then

22   deposit the check in the Arthur account.   Some deposits were made

23   by ATM; others by teller.

24        The checks were genuine Treasury checks.    The signature of

25   the final endorsee, William K. Arthur, was the authorized

26   signature for the account and was the only signature the bank

                                    11
 1   needed to verify to take the checks as a holder in due course.

 2   There is no evidence of the Treasury dishonoring the checks or

 3   seeking reimbursement from any of the banks.           Our analysis does

 4   not depend on dispositively finding that Bank of America was not

 5   exposed to risk of financial loss.3        It is sufficient to say that

 6   there is not the well-known exposure to loss that might support a

 7   finding beyond a reasonable doubt of appellant’s intent to

 8   victimize Bank of America.4

 9         Agent Peck’s testimony does not alter our conclusion.               He

10   testified generically that banks lose money if a check is

11   returned and that Commerce Bank lost funds as a result of the

12   scheme.   However, he also stated that he did not know whether any

13   banks lost money as a result of appellant’s specific depositing

14   of Treasury checks, did not know of a specific case where the

15   Treasury dishonored a check or sought reimbursement from a bank

16   used by appellant, and was “unsure” of whether a bank was exposed

17   to reimbursing the Treasury for accepting such checks.             Such



           3
             We have recognized that banks can sometimes suffer various
     reputational or other indirect harms that will satisfy bank fraud’s intent
     element even if they are a holder in due course. See Barrett, 178 F.3d at 648
     n.3 (recognizing that “banks face practical adverse consequences and potential
     liability problems when they cash checks over forged endorsements because . .
     . they may suffer a loss of customer good will” or “institutional
     embarassment.”) In the cases where these nonpecuniary harms are recognized,
     the holder in due course is also the drawee’s bank, and enforcing the holder
     in due course status against the drawee could negatively impact the bank’s
     relationship with its drawee customer. See id. In the present matter, there
     is no evidence, or argument by the government, that any bank was at risk of
     any such loss.

           4
             Appellant was associated with similar schemes at other banks, but as
     is the case in the Bank of America scheme, there was no evidence that these
     banks were exposed to risk of loss.


                                           12
 1   murky testimony cannot establish a sufficiently well-known

 2   exposure to loss by a bank to prove appellant’s intent to

 3   victimize banks beyond a reasonable doubt.

 4        Therefore, appellant’s conviction on Count Three must be

 5   overturned.5    As a consequence, his conviction on Count Four for

 6   aggravated identity-theft, which required the use of identity-

 7   theft in connection with bank fraud, must also be overturned.

 8   b) Extrinsic Evidence Provided to Jury

 9        Appellant next challenges his convictions on the ground that

10   “highly incriminating extrinsic material” -- his proffer

11   agreement -- was sent to the jury room during deliberations.             He

12   argues that the district court should have held an evidentiary

13   hearing to determine the impact on the jury.          However, appellant

14   not only failed to ask for such a hearing but also agreed with

15   the district court’s handling of the issue.          We, therefore,

16   review only for plain error.       To establish plain error, appellant

17   must show

18               (1) there is an error; (2) the error is clear
19               or obvious, rather than subject to reasonable
20               dispute; (3) the error affected the
21               appellant’s substantial rights, which in the
22               ordinary case means it affected the outcome
23               of the district court proceedings; and (4)
24               the error seriously affect[s] the fairness,



          5
             The government also argues that appellant could have been convicted
     for bank fraud as an aider and abettor. However, the court’s jury
     instructions on aiding and abetting liability were given only on an unrelated
     count. Therefore, aiding and abetting could not have been a basis for
     appellant’s bank fraud conviction. See Napier v. United States, 159 F.3d 956,
     960 (6th Cir. 1998).



                                          13
 1                integrity or public reputation of judicial
 2                proceedings.
 3
 4   United States v. Marcus, 130 S.Ct. 2159, 2164 (2010) (alteration

 5   in original) (internal quotation marks and citations omitted).

 6   Trial courts have “wide discretion in deciding how to pursue an

 7   inquiry into the effects of extra-record information,” United

 8   States v. Hillard, 701 F.2d 1052, 1064 (2d Cir. 1983), and “the

 9   trial judge’s conclusions regarding the effect of the extra-

10   record evidence on the jury are entitled to substantial weight,”

11   United States v. Hansen, 369 Fed. Appx. 215, 216 (2d. Cir. 2010)
12   (citing United States v. Weiss, 752 F.2d 777, 783 & n.2 (2d Cir.
13   1985)).

14           There is no plain error.    The district court determined that

15   the mistaken submission of the proffer agreement did not affect

16   appellant’s substantial rights.      The basis for that conclusion

17   was that it was highly likely the jury did not view the proffer

18   agreement before it was recovered and that, even if seen by the

19   jury, its contents were either immaterial or already on the

20   record and therefore harmless.      We agree.
21   c)   Omission of Interstate Commerce Element from Identity-Theft
22   Count

23           Appellant next argues that omission of the requisite

24   interstate commerce element from the indictment on Count Five for

25   identity-theft, see 18 U.S.C. § 1028(a)(7) & (c), requires

26   reversal of that conviction.       We review such an omission for

27   “constitutional infirmities, most notably whether the alleged


                                         14
 1   defect offends the Sixth Amendment right of the accused to be

 2   informed of the charges against him, the Fifth Amendment right

 3   not to be prosecuted without indictment by grand jury, or the

 4   Fifth Amendment protection against double jeopardy.”   United

 5   States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995) (citations

 6   omitted).   When, as here, the argument is raised only after

 7   trial, “we interpret the indictment liberally in favor of

 8   sufficiency, absent any prejudice to the defendant,” id., and

 9   require “a clear showing of substantial prejudice to the accused

10   -- such as a showing that the indictment is so obviously

11   defective that by no reasonable construction can it be said to
12   charge the offense for which conviction was had,” id. at 325
13   (quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir.

14   1965), cert. denied, 384 U.S. 964 (1966)).   We have consolidated

15   these elements into a requirement that the omission is reversible

16   only for plain error, the standard of which is discussed above.

17   United States v. Cotton, 535 U.S. 625, 631 (2002); United States

18   v. Doe, 297 F.3d 76, 81-82 (2d Cir. 2002).

19        Even if omission of the interstate commerce language
20   constitutes error that is plain, it did not impact appellant’s

21   substantial rights.   When “notice adequate to allow [a defendant]

22   to prepare a defense” is provided, omissions in the indictment do
23   not affect substantial rights.   Doe, 297 F.3d at 88 n.12.     At

24   least ten days before trial, the government submitted proposed

25   jury instructions in which the issue of interstate commerce was

26   specifically discussed with reference to the identity-theft

                                      15
 1   count.    Appellant’s counsel neither objected to the proposed

 2   instruction nor expressed surprise at the interstate commerce

 3   language’s inclusion.    Even if this were the first time

 4   appellant’s counsel became aware of the interstate commerce

 5   element, he had adequate time to address it before trial or to

 6   ask for additional time.    There was therefore no harm to

 7   appellant’s substantial rights.

 8        Nor can appellant prevail on his argument that “[a]

 9   defendant is deprived of his right to be tried only on the

10   charges returned by a grand jury when an essential element of

11   those charges has been altered.”       When there is “overwhelming”

12   evidence in support of the missing indictment element, the grand

13   jury surely would have found the missing element, and the right

14   to be tried on only charges returned by the grand jury is not

15   violated.    Cotton, 535 U.S. at 633.     The evidence of appellant

16   engaging in interstate commerce via the internet in support of

17   the identity-theft is overwhelming.      For example, IP addresses

18   registered to appellant were used to prepare fraudulent tax

19   returns.
20   d) Unreasonableness of Sentence
21            Finally, appellant argues that his sentence is unreasonable

22   because of:    (i) procedural unreasonableness in the district

23   court’s failure to use an “actual loss” measure –- $536,167 –-

24   rather than a modified intended loss measure -- over $1 million;

25   and (ii) substantive unreasonableness because his sentence of 75

26   months was much greater than that of his co-defendants.

                                       16
 1        Sentences are reviewed for procedural and substantive

 2   unreasonableness using a deferential abuse-of-discretion

 3   standard.   See Gall v. United States, 552 U.S. 38, 46 (2007).

 4   Issues of law are reviewed de novo, issues of fact are reviewed

 5   for clear error, and mixed issues of law and fact are either

 6   reviewed de novo or for clear error depending on whether the

 7   question is predominantly legal or factual.   See United States v.

 8   Thorn, 446 F.3d 378, 387 (2d Cir. 2006).

 9        With regard to the claimed procedural unreasonableness, the

10   Sentencing Guidelines provide that district courts are to use the
11   greater of actual or intended loss.   See U.S.S.G. § 2B1.1, cmt.
12   n.3(a).   It was therefore not error for the district court to use

13   intended loss, even if this number was greater than actual loss.

14   Furthermore, a district court “need only make a reasonable

15   estimate of the loss” given the “available information.”

16   U.S.S.G. § 2B1.1, cmt. n.3(c).   Appellant and his co-conspirators

17   filed returns totaling $2.2 million, but a co-conspirator

18   testified that about half the claims were expected to be rejected

19   by the IRS.   Therefore, an intended loss figure of over $1
20   million is not clear error, because it was reasonable to find

21   that appellant expected half of the $2.2 million in filed

22   returns, or $1.1 million, to succeed.

23        We need not address appellant’s substantive unreasonableness

24   argument at this time because the convictions on Counts Three and

25   Four must be vacated and resentencing is required.   Nevertheless,

26   we note for purposes of future proceedings that several factors

                                      17
 1   support a sentence for appellant that is in considerable excess

 2   of those of his co-defendants.   Appellant went to trial, whereas

 3   his co-defendants agreed to plea deals.   Also, appellant fled the

 4   country while on bail before trial, and, during the trial, he

 5   repeatedly lied.   A significant disparity between appellant’s and

 6   his co-conspirators’ sentences is, therefore, to be expected.

 7                               CONCLUSION

 8        For the foregoing reasons, we vacate the convictions on

 9   Counts Three and Four and remand for resentencing.   Otherwise, we

10   affirm.

11

12




                                      18
GERARD E. LYNCH, Circuit Judge, concurring in part and concurring in the judgment in

part:

        I join fully in all of Judge Winter’s thoughtful opinion for the Court except for part

(a) of the discussion, addressing the sufficiency of the evidence supporting appellant’s

bank fraud conviction. As to that section, I concur in the result, agreeing that reversal is

required by our prior holdings. I write separately, however, to express my view that those

prior decisions are predicated on an unwarranted and unwise judicial injection of an

offense element that has no basis in the statute enacted by Congress. As a result, our

Court finds itself on the wrong side of a disagreement among the Courts of Appeals on

the mental state necessary to sustain a federal bank fraud conviction.

        Felix Nkansah conceived and executed a plan to steal money by lying to the

United States government and to various banks. The plan proceeded in two steps. First,

Nkansah and his co-conspirators stole personal information from real people and, using

that information, submitted tax returns in their names to the Internal Revenue Service

with falsified income and address information. As a consequence, he and his

confederates received refund checks from the federal Treasury, made out to the payees in

whose names they had filed the returns. Second, by presenting forged identification

documents, Nkansah opened accounts in the names of the payees at several federally

insured banks, deposited the Treasury checks into those accounts by falsely endorsing

them in the names of the payees, and withdrew the proceeds from the accounts. The

second step was of course crucial to Nkansah’s scam: he was not interested in collecting

                                              1
Treasury checks to mount on the wall; the checks were of value to Nkansah only to the

extent he could negotiate them.

       When the scheme unraveled, Nkansah was indicted for (among other offenses)

violating 18 U.S.C. § 1344. That statue provides:

              Whoever knowingly executes, or attempts to execute, a
              scheme or artifice –
                     (1) to defraud a financial institution; or
                     (2) to obtain any of the moneys, funds, credits, assets,
                     securities, or other property owned by, or under the
                     custody or control of, a financial institution, by means
                     of false or fraudulent pretenses, representations, or
                     promises;
              shall be fined not more than $1,000,000 or imprisoned not
              more than 30 years, or both.

Id. (emphasis added). On a plain reading of the second section of the statute, one would

think it fits Nkansah’s behavior like the proverbial glove. He devised a scheme to obtain

money from the banks at which the accounts were opened by making false

representations to them, and obtained cash that had been in the banks’ hands – “under

[their] custody or control.” Indeed, the naive reader would think that the statute’s drafter

had carefully worded the second section to avoid creating any technical issues about

whether the money that a fraudster obtained actually belonged to the bank, or whether the

bank itself would suffer a financial loss; the crime is committed when a person schemes

to lie to a bank (as Nkansah did, by representing himself to be another person when

opening an account in that person’s name and endorsing a check payable to that person),

and thereby obtain funds that had been in the bank’s custody and control (as Nkansah did,


                                             2
by obtaining a credit in the false account and withdrawing the funds thus made available

in the form of United States currency that had been under the bank’s control). Whether

the money paid out to the scammer belonged to the bank, or an account holder against

whose account the check was drawn, or a correspondent bank, or the drawer of a check

against an account at some other bank should make no difference: under the plain words

of the statute, if the defendant lies to a bank to get cash that is held by the bank, he would

seem to run afoul of the law, regardless of whether it is that bank or some other party that

ultimately bears the loss.

       The majority rules today, however, that the naive reader is wrong, and that

Nkansah did not violate § 1344, because (1) the statute incorporates a requirement that

the defendant have an intent to harm the bank that he deceived into paying him, and (2)

there is insufficient evidence that Nkansah had that intention. The naive reader would, I

suppose, react differently to these two propositions. The first proposition – the legal

assertion that intent to harm the bank is required – seems unwarranted, since no such

requirement appears in the language of the statute. To the contrary, as discussed above,

the statute’s second section would appear to be written to avoid imposing such a

requirement. If the statute were limited to the first section, and simply prohibited

defrauding banks, this reading would be understandable, though hardly inevitable. “[T]o

defraud a financial institution,” id. § 1344(1), could well be read as meaning to harm the

bank by taking its money. But the alternative language, “to obtain any of the moneys,

funds, credits, assets, securities, or other property owned by, or under the custody or

control of, a financial institution,” id. § 1344(2), contains no such implication.

                                              3
       The second proposition, on the other hand – the factual assertion that Nkansah was

not proven to have such an intent – seems only too obviously true. Whether or not the

scheme actually inflicted loss on the bank at which he opened the accounts and negotiated

the checks, it is hardly likely that a fraudster like Nkansah, who concocts a scheme for

cashing forged or fraudulently obtained checks, harbored any animus against that

particular bank, or cared whether the losses from his scheme fell on the bank that cashed

his check or on the account holder against whose account the check is written – a result

that, under the Universal Commercial Code, depends on the precise nature of his scheme.

His intent is to profit – “to obtain any of the moneys, funds, credits, assets, securities, or

other property” – not to inflict loss on any specific victim. Once it is decreed that an

intent to harm the bank is a requirement of the statute, it would seem not only that some

sorts of schemes are categorically beyond the reach of the statute (a result the majority

acknowledges), but also that, if the requirement is taken seriously by judges and juries,

and not evaded by some dubious improvised inferences, almost no fraudulent check-

cashing scheme could successfully be prosecuted.

       In fairness to today’s majority, they did not invent this requirement. As

demonstrated by Judge Winter’s opinion, this Court has previously adopted the rule that

an intent to harm the bank is a required element of a violation of § 1344. The root of the

rule seems to be United States v. Blackmon, 839 F.2d 900, 904-07 (2d Cir. 1988), our

first case to interpret § 1344 after its 1984 enactment. There, relying in large part on

legislative history, this Court held that “[w]here the victim is not a bank and the fraud

                                               4
does not threaten the financial integrity of a federally controlled or insured bank, there

seems no basis in the legislative history for finding coverage under section 1344(a)(2).”

Id. at 906.1 It is because of these cases, including especially United States v. Laljie, 184

F.3d 180 (2d Cir. 1999), that I concur in the judgment vacating the bank fraud conviction,

as I agree that the result reached by the majority is compelled by our precedent.

       Even so, Blackmon makes clear that the requirement of an intent to harm a bank

has been from the start a judicial construct, not expressed in or even suggested by the

statutory language. For judges to impose such a requirement without textual basis

demands a strong policy rationale – indeed, a rationale so powerful that we can only

conclude that Congress must have intended the requirement to be part of the statute, and

omitted specific language incorporating it inadvertently, or because it is so obviously

required as a matter of well-understood principle that it truly goes without saying. Cf.



       1
         In Blackmon itself, this language is arguably dictum, as it is much broader than
necessary to resolve that case, which involved a somewhat different problem than that at
issue in this case. In Blackmon (unlike this case), the scheme involved no
misrepresentation to a bank, and the schemers did not obtain any money directly from a
bank. Rather, the scheme involved a face-to-face con game intended to fleece individual
victims. Those victims obtained the money that they entrusted to the fraudsters by
withdrawing it, perfectly legally and without making any false representations, from their
own bank accounts. See 839 F.2d at 902 n.2 (quoting the district court’s description of
the scheme). The problem was not merely that there was no intent to harm the bank in
question – there was no conduct directed at or involving a bank at all. The result in
Blackmon, it seems to me, was entirely correct; it cannot be bank fraud to deceive an
individual into turning over her cash, simply because the victim had to get the cash from a
bank. In this case, however, Nkansah and his colleagues got their money illicitly from the
bank by making false statements to the bank. Blackmon thus does not control the result
in this case.

                                              5
Morissette v. United States, 342 U.S. 246, 261-62 (1952) (finding unexpressed

requirement of criminal intent implicit in 18 U.S.C. § 641 “in the light of an unbroken

course of judicial decision in all constituent states of the Union holding intent inherent in

this class of offense, even when not expressed in a statute”).

       A judicially imposed requirement of intent to harm the bank would be a plausible

example of such a compelling policy if it served to distinguish criminal from non-criminal

behavior, as it does under 18 U.S.C. § 656, which covers various crimes against banks by

their employees. But as applied in cases like this one, the requirement merely muddies

the waters – or, as in this case, improperly exonerates a defendant of bank fraud – because

in such cases it is clear that the defendant has perpetrated a crime, even though it may not

be clear that the bank itself has sustained loss, or that the defendant understood or hoped

that it would.

       Under § 656, covering theft, embezzlement, and misapplication of bank funds by a

bank officer or employee, we have insisted – without any express statutory language to

guide us – that an intent to harm the bank be proven in order to sustain a conviction. That

insistence is motivated in part by the drafting history of § 656: an express textual

requirement of such an intent was edited out of the statute by a “technical” amendment,

and we have kept it in order to preserve the substance of the prohibition. See United

States v. Lung Fong Chen, 393 F.3d 139, 145 (2d Cir. 2004). But in misapplication

cases, the requirement is also necessary to distinguish criminal from innocent conduct.

For example, in United States v. Cleary, 565 F.2d 43, 45-47 (2d Cir. 1977), we vacated a

                                              6
misapplication conviction because, although the defendant had violated internal bank

rules in making a loan to a third party, the district court erred by excluding evidence that

the loan recipient intended to repay the loan, which might have established that the

defendant had not intended to harm the bank, but had instead just broken the bank’s rules

by making a risky loan. There was no evidence that the Cleary defendant had received

bribes or kickbacks in exchange for making the loans, or otherwise engaged in furtive or

illegal behavior, further suggesting that he had not had a wrongful intent. Id. at 47. See

also United States v. Docherty, 468 F.2d 989, 995 (2d Cir. 1972) (overturning a

conviction under § 656 because of insufficient evidence of intent), abrogated on other

grounds as recognized in United States v. McElroy, 910 F.2d 1016, 1025 (2d Cir. 1990);

United States v. Evans, 42 F.3d 586, 589-91 (10th Cir. 1994).

       In such cases, we have properly enforced the missing intent requirement of § 656

in order to distinguish criminal from innocent behavior. A bank officer may sidestep or

ignore bank rules, perhaps in exchange for a kickback or bribe, to facilitate a loan that the

borrower has no intention, or no plausible prospect, of repaying. When the loan is a

sham, harm to the bank is likely; the schemers have a criminal intent to obtain money

wrongfully, at the expense of the bank. In other cases, however, a bank officer may

evade the bank’s internal rules in the good-faith belief that the borrower is willing and

able to repay, and that the loan, though not authorized by the bank’s formal loan

guidelines, will actually be profitable for the bank. (In some cases, indeed, the bank

officer defendant may even claim that, regardless of the bank’s overt rules, the bank’s

                                              7
management winked at or even encouraged lending supported by borrower

representations that were inaccurate.) Such a banker may have violated his employer’s

rules, and may even have engaged in deceptive conduct, but he lacks criminal intent and

therefore has not committed the crime defined in § 656.

       Thus, to distinguish overly generous bankers from criminals, we properly hold

under § 656 that criminal intent is shown only if the defendant had an intention to harm

the bank. The formulation works in such cases because the essence of a wrongful intent

in these situations is the intent to harm someone, and the only victim involved is the bank.

The function of the rule is to separate criminals, who intend to inflict injury on another

for gain, from persons who engage in deception in the good faith-belief that no one will

suffer any loss. To be guilty of fraud in these circumstances, a defendant must intend not

only to lie to the bank, or to apply its funds in an unauthorized way, but also to harm the

bank. I have no quarrel with the proposition that a criminal intent to effect harm on

someone is an element of a violation of § 1344 as well; it is inherent in the idea of a

“scheme or artifice.”2


       2
         Such a rule could find application under § 1344 as well. If, in a case like Cleary,
while participating in a course of conduct to obtain money under the bank’s control – loan
proceeds – from the bank, the bank officer makes or aids the borrower to make a false
representation to the bank, the officer might be prosecuted under § 1344 as easily as
under § 656. I agree that in such a case, the absence of a criminal intent to harm anyone
would be a defense; if the officer believed in good faith that the misrepresentation was
innocently intended to further a transaction that would in the end benefit the bank, he or
she would lack any criminal intent. But the critical fact is the absence of an intent to
harm. A case such as the present one, in which the defendant has a malicious intent to
steal, and the defense is that he lacked an intent to harm the bank because he neither knew

                                              8
       But our cases have not deployed the “intent to harm the bank” under § 1344 to

distinguish criminal from non-criminal conduct, and an “intent to harm the bank”

requirement certainly serves no such purpose in this case. There is no doubt that Nkansah

had a criminally fraudulent intent. His goal was to get money to which he was not

entitled, with no intention of paying it back. He obviously knew that, to produce his

intended enrichment, someone would bear an unjustified loss. There is no doubt that

Nkansah executed a scheme to obtain funds from the various banks by making false

representations with criminal intent. The majority nonetheless applies the formulation, as

we have done in prior cases, to require an intent to harm the bank. Here, the “intent to

harm the bank” test distinguishes not between criminal and non-criminal conduct, but

between (1) criminal conducted specifically intended to affect a bank, and (2) criminal

conduct directed at a bank and for the purpose of obtaining money wrongfully from the

bank by lying to the bank, but without regard for whether the bank or someone else will

bear the brunt of the crime. In effect, the majority’s application expands the mens rea

requirement by attaching it not only to the element of harm that delimits criminality, but

also to the jurisdictional element of the statute, where it serves no such purpose.

       The requirement of a wrongful intent, as in the bank officer cases under § 656, is

an appropriate instance of judicial implication of an unexpressed mental element into a

statute, because the requirement of mens rea is so fundamental to our concept of criminal



nor cared where the ultimate loss would fall, presents an entirely different issue.

                                              9
law that courts frequently read it into statutes in the absence of an express requirement.

See, e.g., Staples v. United States, 511 U.S. 600, 619-20 (1994); Morissette, 342 U.S. at

250-63. There is no such tradition with respect to jurisdictional elements, however,

because for the federal government to exercise its criminal powers over an individual, it is

not logically necessary for that person to know or intend that she is transgressing a

particularly federal interest.

       A good example is United States. v. Feola, 420 U.S. 671 (1975), dealing with

assault on a federal officer. In that case, the Supreme Court held that an intent to commit

an assault was a required element of the offense of assaulting a federal law enforcement

official under 18 U.S.C. § 111; that was the element that made the conduct wrongful. But

the Court also held that it was not necessary to prove that the defendant intended to

assault, or even knew he was assaulting, a law enforcement officer – let alone a federal

officer, the element that subjects the crime to federal jurisdiction. See id. at 684-86.

Intentional assault, of anyone, is wrongful; that the victim happens to be a federal official

creates federal legislative jurisdiction but does not make the act any more or less

culpable.3


       3
         It is not universally the case that no culpability requirement at all attaches to
jurisdictional elements. For example, it has been held that under the mail (and wire) fraud
statutes, the use of the mails (or wires) must have been at least reasonably foreseeable.
See, e.g., United States v. Maze, 414 U.S. 395, 399 (1974). But even in such cases,
courts do not require a specific intent to use the mails. As we recognized in Blackmon,
“This court has unambiguously held that there is no mens rea requirement as to the purely
jurisdictional element of interstate communication under the wire fraud statute.” 839
F.2d at 907, citing United States v. Blassingame, 427 F.2d 329, 330-31 (2d Cir. 1970). In

                                              10
       One could, of course, argue – as the majority suggests this court did in Blackmon,

839 F.2d at 904-07 – that Congress, concerned about crime that could harm the solvency

of federally insured banks, chose to punish only crimes specifically directed against such

institutions. But this supposed policy choice would make little sense.4 As with assault on

federal officers, the protection of persons or institutions of special concern to Congress

would be incomplete if it did not extend to harm inflicted by malicious individuals who

did not know or care whether the harm they intended would fall on such a person or

institution. Just as a criminal trying to shoot his way out of an arrest may not know or



any event, there is little reason to require mens rea with respect to purely jurisdictional
elements, and the omission of such an element is the preferable rule. See National
Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal
Criminal Code § 204 cmt. (1970) (“Since jurisdiction is only a question of which
sovereign has the power to punish certain harmful conduct, it follows that, in general, the
degree of an offender’s culpability does not depend upon whether he does or does not
know when he commits the offense which sovereign will be able to prosecute him.”); id.
§ 204 (as part of draft proposal, “[e]xcept as otherwise expressly provided, culpability is
not required with respect to any fact which is solely a basis for federal jurisdiction”).
       4
          Blackmon appears to have made the same mistake that the majority does today.
That case cited legislative history indicating that Congress was concerned with the
expanding scope of the wire and mail fraud statutes, and on that basis read § 1344
narrowly. See 839 F.2d at 906. But the legislative history cited in that case makes clear
that in being cautious about the expansive scope of mail and wire fraud, Congress was
concerned that “due process and notice argue for prohibiting such conduct [bank fraud]
explicitly, rather than through court expansion of coverage.” Id., quoting H.R. Rep. No.
901, 98th Cong., 2d Sess. 4 (1984). That is a concern about notice, not federal
jurisdiction. Nothing in the legislative history cited in Blackmon, and nothing I have
been able to find, specifically addresses the situation before us in the present case, or
suggests – much less makes clear – that Congress intended to require a specific intent to
inflict financial loss on a bank when a person obtains money from a bank by lying to the
bank in connection with a criminal scheme to obtain money to which he has no claim of
right.

                                             11
care that the officer he is shooting at is an agent of a federal, rather than a state, law

enforcement agency, so (as in this case) a criminal seeking to get money from a bank by

lying to the bank may not (and typically will not) know or care whether the ultimate loss

will fall on that bank, on another bank, or on an account holder. The legislative history

cited by the majority is not to the contrary. That history shows that Congress enacted

§ 1344 because of the “strong federal interest in protecting the financial integrity of

[federally insured financial] institutions.” S. Rep. No. 98-225, at 377 (1983), reprinted in

1984 U.S.C.C.A.N. 3182, 3517. But the fact that this interest motivated Congress to

adopt the statute, and provided the jurisdictional nexus for the federalization of this class

of crimes, does not imply that Congress intended the scope of the prohibition to be

limited to conduct that threatened the federal interest that motivated its enactment. If

Congress had so intended, it presumably would have limited the statute to major frauds,

and would not have covered the various minor check frauds that are a cost of doing

business for banks and in no way threaten their financial integrity.

       In any event, an “intent to harm the bank” requirement does not well serve the

Congressional interest in protecting federally insured banks. The government cannot

adequately protect federally insured banks from loss without being able to prosecute

criminals who, while undertaking schemes to obtain property under the control of such

banks, are ignorant of or insouciant about whom they will harm. A check fraud that is

intended to harm a bank may in the end impose no costs on the institution if the schemer

misunderstands who will be responsible for the loss, while one that the perpetrator

                                               12
believes will damage only some other party may in fact leave the bank liable for the loss.

The goal of protecting federally insured financial institutions from loss may require a

prohibition that extends more broadly than merely to crimes that are specifically intended

to impose such loss.

       Moreover, given the difficulties of proving such intent, injecting such a

requirement will make it difficult to prosecute crimes that Congress surely would have

wanted to cover. Indeed, if the majority’s rule were applied seriously by judges and

juries, prosecutions for bank fraud in all cases involving checks would be very difficult.

Very few criminals passing checks that variously involve forged payee endorsements,

forged drawer signatures, stolen or fraudulently obtained checks, and the like, who quite

clearly have the specific intent to wrongfully obtain money that is in the bank’s custody

or control, have any knowledge of the rules of law that govern who bears the risk of loss

in the complex system by which negotiable instruments are paid. Still less do most of

them care. The Hollywood version of Clyde Barrow may have asked, while robbing a

bank, whether cash was the bank’s or still belonged to the would-be depositor, and left it

to the poor farmer when told it was his.5 It is doubtful whether the real Barrow, or any

       5
        See the script to the film Bonnie and Clyde (Warner Brothers/Seven Arts 1967),
available at http://www.imsdb.com/scripts/Bonnie-and-Clyde.html:

       Cut to CLYDE standing near the door, training his guns on
       the entire bank. A farmer stands a few feet away, some
       bills clutched in his hand.

              CLYDE: That your money or the bank’s?
              FARMER: Mine.
              CLYDE: Keep it, then.

Id. at 62.

                                             13
other actual bank robber, has ever been so scrupulous. To say the least, persuasive

evidence of an intent to harm the bank will be hard to come by.

       The majority tries to avoid this reality by suggesting that in some cases an intent to

harm the bank can be reasonably inferred where the law provides that the bank will bear

the loss, and the rule of law is “well-known” or “widely understood.” See Maj. Op. at 10-

11. The majority provides no empirical evidence that any rule of law governing the

payment system is “well-known” to (let alone “well understood” by) anyone but a small

cadre of bankers, banking lawyers, and law professors who teach courses in negotiable

instruments.6 That the Uniform Commercial Code places the risk of loss in some check

frauds on the bank that accepts the check provides no genuine basis to infer that the

criminal depositing the check knew (let alone specifically intended) that the bank paying

the check would bear the loss, any more than the fact that the law would hold the bank

harmless as a holder in due course implies that the scammer knew that the injury would

not fall on the bank.

       6
         It is my strong intuition that most ordinary citizens, confronted with the facts of
this case, or of the converse case, in which the majority would apparently permit
conviction, in which a criminal forges the signature of an account holder on a check
stolen in blank and presents the check to the drawee bank, would have the slightest idea
whether the bank is liable as a matter of law for paying on the check. (I admit that I have
no empirical evidence for my intuition, either, but I doubt that the majority would like to
put the thesis to a test by giving a short quiz to next week’s jury venire.) Indeed, in this
very case, the government called a witness from the Federal Bureau of Investigation,
Agent Peck, who testified that the banks would be at risk of loss, but later admitted that
he was unsure whether any bank had ultimately borne any loss in this case. That a
government agent charged with responsibility for investigating suspected violations of
§ 1344 could offer only such “murky testimony,” Maj. Op. at 13, suggests that verdicts
should not be made to turn on inferences from supposedly “well-known” or “well
understood” rules of loss allocation.

                                             14
       A cynic might contend that so long as judges will enforce today’s rule by allowing

an inference of anti-bank animus drawn from rules of banking law to defeat motions for

acquittal for insufficient evidence, prosecutors can safely charge bank fraud in cases in

which the bank would in fact bear a risk of injury, and juries can be counted on to convict

defendants who are shown to have engaged in clearly wrongful conduct, without

worrying much about whether those defendants had actually been proved beyond a

reasonable doubt to have actually intended a loss to the bank. It is perhaps true that few

defendants would be so bold as to argue to a jury, “I intended to defraud, but I hoped and

thought that the victims would be the bank’s customers, not the banks.” I am not cynical,

however, about jurors’ ability and inclination to follow their instructions and base their

verdicts on the law and the evidence, and therefore assume that many jurors will have a

reasonable doubt about the dubious proposition that the defendant in fact knew or

intended that the bank to which he lied, rather than some other party, would bear the cost

of his scheme. But even if I thought otherwise, I would still think it an odd legal system

that defined liability rules that could only be practicable on the theory that judges and

juries will take short-cuts in applying them.

       The mischief of the rule is limited in this case. Because the loss from Nkansah’s

scheme was ultimately borne by the federal Treasury, he was convicted of a separate and

equally serious crime that was also charged in the federal indictment. The principal

practical consequence for him is the reversal of the additional mandatory consecutive

sentence for aggravated identify theft, which by law must be piled atop a sentence for

                                                15
bank fraud, but is not added to a tax fraud sentence. Some may mourn the elimination of

the additional punishment; others may think the additional mandatory sentence excessive

and be glad to see it reversed; either way, Nkansah will not avoid a significant penalty for

his criminal acts.

       In other cases, the requirement of a specific intent to injure a bank may have more

serious consequences, making federal prosecution of some fraudulent check schemes

impossible. Worse, the distinction between those that are and those that are not subject to

prosecution under § 1344 is entirely arbitrary.

       One need not invent hypothetical examples to illustrate the arbitrariness of the

rule. United States v. Laljie, the case that in my view controls this one and compels my

concurrence in reversing Nkansah’s bank fraud convictions, amply demonstrates the

point. In Laljie, the evidence permitted the jury to find the defendant, who was secretary

to one Schmeelk and had access to his checkbook, stole money by (1) physically altering

checks, made payable to Cash and signed by Schmeelk, to increase the amounts,

pocketing the difference between the amounts Schmeelk expected and the amount the

bank paid, and (2) taking checks that Schmeelk had pre-signed in blank for payments to

vendors, and writing in as payee a company controlled by her husband, thus diverting the

funds to her own use. We upheld convictions on bank fraud counts based on the altered-

amount checks, on the theory that because the bank should have noticed the physical

alterations on the checks, the bank would be liable to Schmeelk for paying the increased

amounts. 184 F.3d at 190-91. Apparently crucial to the holding was the fact that the

                                             16
alterations “were sufficiently visible to call into question the checks’ authenticity, putting

the bank on notice that the maker might have a defense against it and preventing the bank

from enjoying the status of holder in due course.” Id. at 190. But we vacated the

convictions based on the second scheme, because the bank would not be liable for paying

an apparently legitimate check that bore Schmeelk’s actual signature. Id. at 191. With

respect, this makes little sense. In my view, Laljie was equally guilty of violating § 1344

for both schemes, because in each case she made false representations to the bank

(misrepresenting the amounts of the checks in the first scheme and misrepresenting that

the checks had been made payable by Schmeelk to the payee she had fraudulently

inserted in the second7), as part of a scheme to obtain funds under the bank’s custody and

control to which she had no lawful claim. A court that took seriously the rule that a

conviction under § 1344 requires proof beyond a reasonable doubt that the defendant

actually intended harm to the bank, as opposed to intending to profit himself at the

expense of whoever winds up taking the hit, should have trouble sustaining the conviction

in either scheme, because there is no real reason to think that Laljie had any idea whether

the bank would bear the loss for any of the fraudulent transactions if Schmeelk eventually


       7
        In Laljie, there is a plausible argument that in depositing the checks payable to
the husband’s company into an account of that company, Laljie made no
misrepresentation to any bank. But no such argument can be made by Nkansah. He
deposited the checks into accounts fraudulently opened, presumably by the presentation
of forged identification, in the names of the persons whose identities had been hijacked in
the underlying fraud on the Internal Revenue Service. There is thus no doubt that
Nkansah made multiple misrepresentations to the banks to whom the checks were
presented.

                                              17
discovered the abuse of his account (still less that she actually intended to harm the bank).

Moreover, the clear implication of the opinion – that Laljie was only guilty of bank fraud

in the case of the altered checks because her forgeries were so crude that the bank should

have noticed them – is totally incomprehensible. Presumably, Laljie intended her

forgeries not to be noticed by the bank, and if she had altered the amounts in such a way

that the bank was not on notice of the alterations, the bank might not have been liable to

Schmeelk, and the artificial chain of inferences from actual liability of the bank to the

intent of the larcenous secretary would be broken. This makes no sense: the skill of the

forger should not determine whether the thief is guilty of bank fraud.8

       However unfortunate the consequences of today’s decision might be, I agree that,

given Laljie and, to a lesser extent, the dictum in Blackmon, its outcome is required by

the law of this Circuit. Nonetheless, I believe that this decision reverses a well-deserved


       8
         There are many variant scenarios in which fraudsters deceive banks using false,
forged, fraudulently obtained, or stolen checks. A scammer may steal blank checks and
forge the account-holder’s signature; create false checks that appear to be legitimate
checks drawn on an actual account; present fraudulently created checks that are based on
entirely fictitious accounts; forge the endorsement on a legitimate but stolen check made
payable to a third party; alter the name of the payee or amount on a stolen check; and
many more. In any of these cases, the criminal may present the check to the drawer’s
bank or to another bank, and may deposit the check into her own account or into an
account in a fictitious name or in the name of an actual person to whom the check was
drawn, that the con artist opened using false identification. The forgeries in any of these
cases may be clumsy or skillful. I leave it to the reader to work out in which if any of
these instances the bank to whom the check was presented, or any other bank, is liable for
paying on the check, whether any of the rules that determine the result are “well-known”
or “well understood” by anyone but a banker or bank lawyer, and whether, under the rule
of our Circuit, a defendant charged with bank fraud in any of these variant instances can
be found by a jury to have intended a loss to the bank.

                                             18
conviction, and perpetuates a potential loophole that could make future prosecutions more

difficult. The precedents upon which the Court relies today ignore the statute’s plain

language and are unsound as a matter of policy.

       Although § 1344 has produced much litigation in the Circuits and many separate

opinions by learned appellate judges, federal courts do not agree on the mental state

necessary to support a conviction under § 1344, nor on the relationship between the

statute’s two subsections. See, e.g., United States v. Staples, 435 F.3d 860, 866-67 (8th

Cir. 2006) (discussing difference of opinion among Circuits); United States v. Everett,

270 F.3d 986, 990 n.3 (6th Cir. 2001) (same). Some Circuits hold, as we do, that an

intent to harm the bank, or at least expose it to risk, is required. See, e.g., United States v.

Odiodio, 244 F.3d 398, 401 (5th Cir. 2001); United States v. Davis, 989 F.2d 244, 246-47

(7th Cir. 1993). But other Circuits hold a variety of other views. For example, the First

Circuit, overruling earlier precedents, has held in a unanimous en banc decision that

under either subsection, § 1344 requires only an intent to defraud a bank, and not an

intent to harm a bank. United States v. Kenrick, 221 F.3d 19, 26-29 (1st Cir. 2000).9 The

Third Circuit has relied in part on Kenrick to conclude that “where the perpetrator had an

intent to victimize the bank by exposing it to loss or liability, such conduct falls

comfortably within the reach of § 1344,” but that “where there is no evidence that the


       9
         The Ninth, Tenth and Eleventh Circuits have adopted a similar rule. See United
States v. McNeil, 320 F.3d 1034, 1037-40 (9th Cir. 2003); United States v. De La Mata,
266 F.3d 1275, 1298 (11th Cir. 2001); United States v. Sapp, 53 F.3d 1100, 1103 (10th
Cir. 1995).

                                              19
perpetrator had an intent to victimize the bank, . . . merely an intent to victimize some

third party does not render the conduct actionable under § 1344.” United States v. Leahy,

445 F.3d 634, 647 (3d Cir. 2006). The Third Circuit thus requires not intent to harm, but

intent to victimize, which appears to include a case, such as this one, in which the bank

was the “target of deception.” Id. at 646-67 (internal quotation marks omitted).10 The

Sixth Circuit, relying on the plain language of § 1344(2), has held that it is “sufficient if

the defendant in the course of committing fraud on someone causes a federally insured

bank to transfer funds under its possession and control.” Everett, 270 F.3d at 991. The

Eighth Circuit has held that while subsection (2) requires “‘some loss to the institution, or

at least an attempt to cause a loss,’” while subsection (1) only requires that the defendant

have “‘defraud[ed]’” the institution. Staples, 435 F.3d at 867, quoting United States v.

Ponec, 163 F.3d 486, 488 (8th Cir. 1998).11 My own view, as expressed in this opinion, is

consistent Judge Lipez’s careful opinion in Kenrick for the unanimous First Circuit.

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

judgment of the Court, I am firmly convinced that we are on the wrong side of the

conflict among the circuits on the issue that controls this case, and I hope and trust that

when the Supreme Court sees fit to resolve the conflict, it will reject our Circuit’s rule.



       10
         See Leahy, 445 F.3d at 645 n.9 (explaining the distinction, and noting that
“[w]ere there a specific intent to harm element, a jury might not convict a defendant
whose intent was to enrich himself or steal from a third party, yet who lacked any desire
to harm or injure the bank”).
       11
         This is somewhat akin to the distinction I advance in this opinion, although I
take the opposite view of which subsection has which effect.

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