                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                            August 4, 2017

                                                                             Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                               Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 16-3220

MATTHEW WILLIAMS,

      Defendant - Appellant.
                      _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                      (D.C. No. 2:15-CR-20034-CM-1)
                   _________________________________

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, and
Thomas W. Bartee, Assistant Federal Public Defender, with him on the briefs), Office of
the Federal Public Defender for the District of Kansas, Topeka, Kansas, appearing for
Appellant.

Carrie N. Capwell, Assistant United States Attorney (Thomas A. Beall, United States
Attorney, with her on the brief), Office of the United States Attorney for the District of
Kansas, Kansas City, Kansas, appearing for Appellee.
                        _________________________________

Before TYMKOVICH, Chief Judge, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

MATHESON, Circuit Judge.
                   _________________________________

       A jury convicted Matthew Williams of bank fraud in violation of 18 U.S.C.

§ 1344(1), and aggravated identity theft in violation of 18 U.S.C. § 1028A. He
appeals and asks that we reverse his convictions because the evidence against him

was insufficient.

      Mr. Williams began a mortgage loan application at Pulaski Bank (the “bank”)

using his father’s personal and financial information and his status as a Purple Heart

veteran. After his father received the application packet in the mail, he called the

bank to explain he had not applied for a loan. The bank referred the matter to law

enforcement, but continued to work with Mr. Williams to process the loan and obtain

additional documents to clarify the applicant’s identity. The bank sent Mr. Williams

a notice of incompleteness because it lacked several required documents, signatures,

and a photo identification. In response, Mr. Williams provided some of the required

documents to the bank, including a fake earnings statement and a letter expressing his

intent to proceed with the loan. The bank sent a final notice of incompleteness to Mr.

Williams. Mr. Williams did not respond, and the bank closed his application file.

      Mr. Williams argues his misrepresentations on the incomplete application

could not support a bank fraud conviction because they (1) were not material to the

bank’s decision to issue him a loan; and (2) did not impose a risk of loss on the bank.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Williams’s bank fraud

and aggravated identity theft convictions.




                                          -2-
                                   I.   BACKGROUND

                                     A. Factual History

       Mr. Williams challenges the sufficiency of the government’s evidence, which

requires us to view the evidence in the light most favorable to the Government. We

present the factual background accordingly.

1. Bank Processes

       The testimony at trial established that the bank has a four-step process for issuing

mortgage loans: (1) application; (2) processing; (3) underwriting; and (4) closing. Each

step has its own verification processes and safeguards.

       First, in the application phase, a loan officer:

            Helps a potential borrower fill out a preliminary application;

            Runs a credit report;

            Requests verification documents, such as a photo identification (“ID”), pay
             stubs, bank statements, and tax returns; and

            Adjusts the information on the preliminary application as necessary based
             on the verification documents.

Preliminary applications for a loan guaranteed by the U.S. Department of Veterans

Affairs (a “VA loan”) require an addendum confirming the VA will insure the loan. The

loan application packet consists of the preliminary application, the VA addendum, around

30 disclosures to the borrower that require signatures,1 and a letter indicating the


       1
        One disclosure is a truth-in-lending document that the bank provides to the
potential borrower to facilitate shopping for the best loan.


                                             -3-
borrower’s intent to proceed.2 The borrower must sign and date all of the documents in

the packet and return them to the bank.

       Second, at the processing step, a processor reviews the borrower’s credit report,

calculates available income, verifies the reported income, and reviews the application

packet. The bank generally requires a complete preliminary application packet before

advancing the loan to this second stage. The bank will sometimes overlook deficiencies

in completeness to advance a loan. An employee said:

              Well, they’re supposed to date it but we do have people who
              don’t date it. We don’t not [sic] accept it if it’s not dated . . .
              Well, I mean, they’re supposed to date it. . . No, we’re not
              going to not accept this application ‘cause it’s not dated.

ROA, Vol. 2 at 162-63. She also explained: “Now, if someone’s taking a long time or

maybe we’ve just got a little bit of documentation, we’ll go ahead and turn it in so we can

get the file going. So, we don’t always have all the documentation when it goes to a

processor.” Id. at 144.

       Third, after the processor’s work is complete, the application goes to the third

stage: underwriting.3 The underwriter decides whether to approve a loan. Underwriting


       2
         A bank employee testified that once the bank has a “valid loan application,”
it sends the loan application and multiple disclosures to the applicant. ROA, Vol. 2
at 191.
       3
         A bank employee testified that processing “may or . . . may not” still send a
file to underwriting even if it doesn’t get all the documents it needs. Id. at 210. She
stated that, “It depends how much documentation they have, and if they have enough
that—underwriting has enough information to give a rendering or an – you know,
like a preliminary approval, or if we have—[enough] . . . items to make a decision.”
Id. “It’s possible to forward [the loan application] with some notation in the file, still
                                                                           Continued . . .
                                             -4-
involves review of the applicant’s credit report, income, assets, debts, employment

history, the home appraisal, and whether the applicant has sufficient funds to make the

down payment and pay closing costs. The underwriter’s options include suspending the

application for additional information, approving it with conditions, or just approving it.

       Fourth, if the underwriter approves, the loan goes to the final stage: closing. The

closer runs an additional credit search, conducts a title search, and verifies the borrower’s

employment, title insurance, and homeowner’s insurance. The closer also prepares the

final loan document for the borrower’s signature. Until the completion of closing, the

bank does not commit to loaning money.

2. Mr. Williams’s Loan Application

       On July 19, 2014, Mr. Williams entered into a contract to purchase a home in

Kansas for $480,000.

       On July 25, 2014, Mr. Williams called Theresa Mentzel, a loan officer at the bank,

to inquire about a loan. She asked him questions to prepare a mortgage application. He

falsely told her that his legal name was Earl Williams, who is his father, and provided her

with his father’s social security number, date of birth, and Texas address.4 He also gave

her, as if it were his own, the name of Earl Williams’s current employer, monthly income

and expenses, and bank account information. He authorized her to run a credit report on


waiting on X, Y, or Z.” Id. at 212.
       4
       To avoid confusion, we refer to Matthew Williams, the defendant, as “Mr.
Williams” and to his father as “Earl Williams.”


                                            -5-
“Earl Williams,” which she did. Mr. Williams told Ms. Mentzel he wished to apply for a

VA loan. He said, again falsely, that he was exempt from the high funding fee applicable

to VA loans because he had received a Purple Heart and was on VA disability. Ms.

Mentzel used this information and obtained a VA certificate of eligibility, which

confirmed Earl Williams was a veteran, exempt from paying a funding fee, and qualified

for a low interest rate.

       On July 30, 2014, the bank sent a copy of the application, which included

information provided during Mr. Williams’s phone call, and the necessary disclosure

forms to Earl Williams’s Texas address. Earl Williams received the packet, called the

bank, and spoke with Ms. Mentzel’s assistant, Judith Atkinson. He told her that he had

not applied for a loan and was concerned because the loan application included his social

security number. Ms. Atkinson alerted her manager but was told to “just proceed on the

loan.” ROA, Vol. 2 at 194-95

       Denise DeRousse, a senior vice president at the bank with responsibility for

monitoring fraud and loss, became involved with the loan application at some point

following Earl Williams’s call. Ms. Mentzel was unsure “who was who, or who was

telling the truth,” or whether there had been a mistake and Ms. DeRousse thought “[i]t

could still be, in [her] mind, an error” and still viewed Mr. Williams as “a person who

might be a potential customer.” Id. at 227, 228, 181. Aware that critical loan documents

were missing, and still viewing Mr. Williams as a potential client whom she did not want

to “interrogat[e],” Ms. DeRousse turned the investigation over to law enforcement. Id. at

228. She determined the bank was not then at a risk of loss, and she decided she would

                                           -6-
not investigate further unless Mr. Williams submitted documents that would allow the

bank to proceed with his loan application. She told the bank’s mortgage officers to notify

her if Mr. Williams provided additional documentation.

       Following her manager’s directions, Ms. Atkinson called Mr. Williams and asked

him to submit the disclosure forms and his photo ID. He said he would come to the bank

the following week with the requested documents, but he did not.

       On August 8, 2014, Ms. Atkinson emailed Mr. Williams a notice of

incompleteness. The notice advised he had 10 business days to provide the requested

information or the bank would send a final notice of incompleteness.

       On August 19, 2014, Mr. Williams provided the bank with the following

documents, all using his father’s name: (1) an undated, electronically-signed loan

application, (2) two signed but undated disclosure forms, including a notice of intent to

proceed with the loan application, and (3) a fake earnings statement showing monthly net

wages of $3,275.25. He also arranged for the Defense Finance and Accounting Service

to send the bank a letter verifying that Earl Williams was receiving $3,585 in monthly

retirement pay. Mr. Williams did not provide a photo ID, which the bank required from

every customer.5

       On August 22, 2014, the bank emailed a final notice of incompleteness to Mr.

Williams. The notice advised that he had five business days to provide the requested

information, or the bank would close his file. Mr. Williams did not respond with the

       5
        Ms. Atkinson testified that the loan could not move forward to processing
without the photo ID.

                                           -7-
required documents, so the bank closed his application. Mr. Williams’s application never

made it to the underwriting phase because the bank “never had enough documentation—

complete documentation to send it to the underwriter.” ROA, Vol. 2 at 166.

                                  B. Procedural History

1. Indictment

       A grand jury in the District of Kansas returned a two-count indictment against Mr.

Williams. Count 1 charged bank fraud in violation of 18 U.S.C. § 1344(1), and Count 2

charged aggravated identity theft in violation of 18 U.S.C. § 1028A.

2. Trial and Oral Motion for Judgment of Acquittal

       At trial, the Government called nine witnesses. Mr. Williams did not present

evidence. The testimony established the facts outlined above.

       At the close of the Government’s evidence, Mr. Williams moved for a judgment of

acquittal under Federal Rule of Criminal Procedure 29 on the bank fraud charge—Count

1—and argued the Government had failed to prove two essential elements: (1) that his

statements were material to the bank’s decision as to whether to issue him a loan, and

(2) that the bank suffered a risk of loss or civil liability. He also argued the aggravated

identity theft charge—Count 2—was invalid because it was premised on the bank fraud

charge. The district court denied the motion.

       The jury found Mr. Williams guilty of both charges.6


       6
        18 U.S.C. § 1344(1) makes it a crime to “knowingly execute[], or attempt[]
to execute, a scheme or artifice . . . to defraud a financial institution.” On appeal,
Mr. Williams states that “[t]here was some debate below about whether Mr. Williams
                                                                            Continued . . .
                                            -8-
3. Post-Trial Motion for Judgment of Acquittal

       Mr. Williams filed a post-trial motion for a judgment of acquittal under Rule 29,

reasserting his arguments from the close of evidence. The district court again denied the

motion. It ruled there was sufficient evidence to show the bank suffered a risk of loss

because Mr. Williams submitted a fraudulent loan application and expressed his intent to

proceed with it. The materiality element also was satisfied, the district court ruled,

because Mr. Williams applied for a VA home mortgage loan and his misrepresentations

influenced the bank’s decision whether to issue the loan. Because the evidence was

sufficient on Count 1, the court said it also was sufficient on Count 2.

4. Sentencing

       Mr. Williams received a prison sentence of 27 months—three months for bank

fraud and 24 months for aggravated identity theft. The district court also imposed a two-

year term of supervised release.

                                    II. DISCUSSION

       Mr. Williams challenges the sufficiency of the evidence underlying both of his

convictions. Because the aggravated identity theft conviction was premised on the


was charged and convicted of attempted bank fraud, rather than a completed bank
fraud.” Aplt. Br. at 25 n.7; see e.g., id. (explaining indictment did not charge
“attempt[] to execute” but attempt language was included in jury instructions); ROA,
Vol. 2 at 446 (district court’s statement at sentencing that “[a]lthough the bank fraud
statute includes the word attempt, defendant was convicted of bank fraud, not
attempted bank fraud”). Mr. Williams does not challenge the theory of his conviction
or his sentence on appeal, so we do not address those issues. He argues only that the
Government failed to prove his misrepresentations (1) were material, or (2) imposed
a risk of loss on the bank. Id.

                                            -9-
bank fraud conviction, the Government and Mr. Williams agree that whether the

evidence was sufficient for the bank fraud conviction is the determinative issue on

appeal.7

      Mr. Williams argues the Government failed to prove the first element of bank

fraud because it failed to show that his misrepresentations (1) were material, or

(2) imposed a risk of loss on the bank. We disagree. Based on the trial evidence, a

rational jury could find that Mr. Williams’s misrepresentations were both material

and imposed a potential risk of loss on the bank.

                              A. General Legal Background

1. Standard of Review

      “To review [a] sufficiency of the evidence [challenge], we engage in de novo

review, considering the evidence in the light most favorable to the government to

determine whether any rational jury could have found guilt beyond a reasonable

doubt.” United States v. Los Dahda, 853 F.3d 1101, 1106 (10th Cir. 2017), petition

for cert. filed, (July 7, 2017) (No. 17-43). “[W]e consider all of the evidence, direct


      7
         As we explained in United States v. Camick, 796 F.3d 1206, 1219 (10th Cir.
2015), the aggravated identity theft statute, 18 U.S.C. § 1028A, prohibits identity
theft “during and in relation to” any of the enumerated felonies, including bank fraud.
18 U.S.C. § 1028A(c)(5) (defining “felony violation” to include “any provision
contained in chapter 63 (relating to mail, bank, and wire fraud)”). “Thus, a
conviction for aggravated identity theft is predicated on the commission of one of the
enumerated felonies.” Camick, 796 F.3d at 1219. If we reverse a conviction for the
predicate felony, we must necessarily also reverse an aggravated identity theft
conviction that was premised on the now-reversed predicate conviction. Id. Because
we affirm Mr. Williams’s bank fraud conviction, we also affirm his aggravated
identity theft conviction.

                                         - 10 -
and circumstantial, along with reasonable inferences[,] . . . [b]ut we do not weigh the

evidence or consider the relative credibility of witnesses.” Id.8 Thus, our review of

the evidence is “highly deferential.” United States v. Bowen, 527 F.3d 1065, 1076

(10th Cir. 2008) (quotations omitted).

2. Bank Fraud

      18 U.S.C. § 1344 states:

             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.

      “The [bank fraud] statute was intended to reach a wide range of fraudulent

activity that undermines the integrity of the federal banking system.” United States v.

Akers, 215 F.3d 1089, 1102 (10th Cir. 2000) (quotations omitted). We note that this

broad statute considers even “attempts to execute” as bank fraud. 18 U.S.C. § 1344.

It was modeled after the mail and wire fraud statutes, see 18 U.S.C. §§ 1341, 1343,


      8
         See also United States v. Gallant, 537 F.3d 1202, 1222-23 (10th Cir. 2008)
(“We will not weigh conflicting evidence or second-guess the fact-finding decisions
of the jury. Rather than examining the evidence in ‘bits and pieces,’ we evaluate the
sufficiency of the evidence by ‘considering the collective inferences to be drawn
from the evidence as a whole.’” (quotations and citations omitted)).

                                           - 11 -
and contains “virtually the same language” as those statutes. United States v. Young,

952 F.2d 1252, 1255-56 (10th Cir. 1991). Thus, our analysis of bank fraud under

§ 1344 often draws on mail and wire fraud cases under § 1341 and § 1343.

      Mr. Williams was convicted of violating 18 U.S.C. § 1344(1). To establish a

violation under § 1344(1), the Government must prove:

             (1) that the defendant knowingly executed or attempted to
             execute a scheme or artifice to defraud a financial
             institution;

             (2) that the defendant did so with the intent to defraud the
             financial institution; and

             (3) that the financial institution was federally insured.

United States v. Swanson, 360 F.3d 1155, 1161 (10th Cir. 2004) (paragraph breaks

added).

      Under the first element, a scheme to defraud “can involve fraudulent

misrepresentations to deceive a bank to obtain money.” Young, 952 F.2d at 1257.

“[S]cheme and artifice are defined to include . . . fraudulent pretenses or

misrepresentations intended to deceive others to obtain something of value, such as

money, from the institution to be deceived.” Id. at 1256 (quotations omitted). The

misrepresentation or falsehood must be materially false. See Neder v. United States,

527 U.S. 1, 25 (1999). Also subsumed within the first element is a requirement that




                                         - 12 -
the government prove a “risk,” “potential risk,” or “risk of loss” to the financial

institution. Swanson, 360 F.3d at 1161.9

                                     B. Materiality

1. Additional Legal Background10

      a. Materiality Definition

      A “‘false statement is material if it has a natural tendency to influence, or is

capable of influencing, the decision of the decisionmaking body to which it was

addressed.’” United States v. Irvin, 682 F.3d 1254, 1267 (10th Cir. 2012) (quoting

Neder, 527 U.S. at 16). Materiality is a mixed question of law and fact. United

States v. Schulte, 741 F.3d 1141, 1154 (10th Cir. 2014); Gaudin, 515 U.S. at 511-12.11

      First, deciding whether a statement is “material” requires the determination of

two subsidiary questions: (a) “what statement was made?” and (b) “what decision

was the agency trying to make?” Gaudin, 515 U.S. at 512; United States v. Camick,

      9
        This court’s opinion in United States v. Young, 952 F.2d 1252, 1257 (10th
Cir. 1991), used the term “potential risk.” Mr. Williams and the Government
concede that this court has “used the phrase ‘potential risk of loss’ interchangeably
with the phrase ‘risk of loss.’” Fed. R. App. P. 28(j) Supplemental Authority (May
26, 2017); Fed. R. App. P. 28(j) Supplemental Authority (May 24, 2017).
      10
         The bank fraud materiality analysis is identical to the materiality analysis
required for convictions of making a false statement under 18 U.S.C. § 1001, mail
fraud under 18 U.S.C. § 1341, and wire fraud under 18 U.S.C. § 1341. See Neder v.
United States, 527 U.S. 1, 25 (1999) (“[M]ateriality of falsehood is an element of the
federal mail fraud, wire fraud, and bank fraud statutes.”). Cases involving bank
fraud, mail fraud, and wire fraud, and false statement offenses inform our analysis.
      11
         But see United States v. Camick, 796 F.3d 1206, 1214 (10th Cir. 2015)
(‘“The question of whether a statement is material is a question of fact for the jury to
decide.’” (quoting United States v. Sharp, 749 F.3d 1267, 1279 (10th Cir. 2014)).

                                         - 13 -
796 F.3d 1206, 1214-15 (10th Cir. 2015). The jury must then determine whether the

relevant statement could influence the relevant decision. Camick, 796 F.3d at 1215.

      Second, we analyze whether the statement was capable of influencing the

relevant decision. Irvin, 682 F.3d at 1267. Because the Supreme Court’s materiality

definition in Neder, 527 U.S. at 16, “refer[s] to natural tendencies and capabilities,

[it] establishes materiality in the bank fraud context as an objective quality,

unconcerned with the subjective effect that a defendant’s representations actually had

upon the bank’s decision.” Irvin, 682 F.3d at 1267. Materiality therefore does not

turn on whether the misrepresentation actually influenced the bank or whether the

decision maker actually relied on the misrepresentation; the “pertinent inquiry is

instead whether [the defendant’s] representations had the capability to so influence

the[] decision[].” Id. at 1268.12

      The Third Circuit has explained that “the relevant inquiry [is] whether the

falsehood was of a type that one would normally predict would influence the given

decisionmaking body.” United States v. McBane, 433 F.3d 344, 351 (3d Cir. 2005).

The phrase ‘“natural tendency’ connotes qualities of the statement in question that

transcend the immediate circumstances in which it is offered and inhere in the

statement itself.” Id. Stated another way, the objective materiality test focuses on


      12
          But this test is “unquestionably satisfied when, as here, the defendant’s
falsehoods did in fact influence agency action. Actually influencing an agency to act
is proof positive that a statement is capable of influencing an agency to act.” United
States v. Garcia-Ochoa, 607 F.3d 371, 378 (4th Cir. 2010).


                                          - 14 -
“the intrinsic capabilities of the statement itself, rather than the possibility of the

actual attainment of its end as measured by collateral circumstances.” Id. at 352.13

       b. Tenth Circuit Precedent

       Two Tenth Circuit cases figure prominently in our analysis.

              i.   United States v. Camick

       In Camick, 796 F.3d 1206, Mr. Camick used his brother’s name and identity to

file a provisional patent application with the U.S. Patent and Trademark Office

(“PTO”). Id. at 1210-11. For this he was prosecuted and convicted of wire fraud,

making a material false statement, and aggravated identity theft. Id. at 1212-13. We

reversed his wire fraud and false statement convictions for lack of materiality,

holding Mr. Camick’s statements on the provisional patent application were not

capable of influencing the PTO’s decision to grant a patent. Id. at 1218-19.14

       Based on the law governing provisional patent applications, we determined

that the preliminary application did not require an oath or declaration, would not be

examined for patentability, and would be deemed abandoned if the applicant took no


       13
          See also United States v. Lindsey, 850 F.3d 1009, 1015 (9th Cir. 2017) (“A
false statement is material if it objectively had a tendency to influence, or was
capable of influencing, a lender to approve a loan. This standard is not concerned
with a statement’s subjective effect on the victim, but only ‘the intrinsic capabilities
of the false statement itself.’ For this reason, we have previously held that
‘misrepresentation may be material without inducing any actual reliance.’” (citations
omitted)).
       14
         We also reversed Mr. Camick’s related conviction for aggravated identity
theft because it was predicated on his wire fraud and material false statement
felonies. Camick, 796 F.3d 1219.

                                           - 15 -
action within a year. Id. at 1218. Within one year, the applicant could convert the

provisional to a nonprovisional application or incorporate it into one by reference.

Id. at 1218-19. Thus “statements in a provisional patent application, without

additional action on the part of the applicant, cannot influence the decision of the

decisionmaking body to which it was addressed.” Id. at 1219 (alterations and

quotations omitted.) When the provisional application is filed, there is no decision to

be made. Id. Even though the provisional application could later inform the PTO’s

decision if the applicant took additional action, the applicant could abandon the

process through inactivity. Id. Because statements in the provisional application are

incapable of influencing a PTO decision and because Mr. Camick abandoned his

application, we held his false statements on the preliminary application were

immaterial. Id. The PTO had no reason or opportunity to review the preliminary

application, so it could not have influenced any patent decision. Id.

              ii. United States v. Irvin

       In Irvin, 682 F.3d 1254, Ms. Irvin was part of a conspiracy to inflate the

creditworthiness of potential home buyers. Id. at 1259-60. She also inflated her own

credentials to obtain a mortgage loan, which she co-signed with a co-conspirator. Id. at

1267. At her trial for bank fraud, the bank said Ms. Irvin’s fraudulent financial

information had “no impact on the ultimate issuance of the loan,” explaining that its

“successful dealings with [her co-conspirator] provided the sole basis of decision to

recommend issuance of the mortgage loan.” Id. “[Ms.] Irvin’s credit information was

not even included in [the loan officer’s] presentation to the loan committee.” Id. Despite

                                           - 16 -
this testimony from the bank, we affirmed her conviction on appeal, holding that whether

her fraudulent representations actually influenced the bank did not matter because the

representations still had the capability to influence the bank’s decisions. Id. at 1268. We

explained:

              [The bank’s loan officer]’s requirement that Irvin submit her
              financial information as part of the loan application process,
              for example, indicates the information was at least potentially
              relevant to the bank’s decision, and [her] decision to falsify
              the requested information indicates [she] believed it to be so.
              Furthermore, [the loan officer] testified it would have been
              relevant to the bank’s decision to know that Irvin had
              submitted fraudulent tax returns . . . . [T]hose facts,
              combined with testimony presented . . . describing the
              significance of a loan applicant’s financial information, could
              lead a rational trier of facts to conclude Irvin’s representations
              to [the bank] were material.

Id. at 1268. In short, Ms. Irvin’s misrepresentations were material because they could

have influenced the bank’s decision.

2. Analysis

       a. Threshold questions

       To determine whether Mr. Williams’s misrepresentations were material, we follow

the Gaudin framework, 515 U.S. at 512, and identify, based on the trial evidence: (1) the

false statements Mr. Williams made, and (2) the decision the bank was trying to make.

       First, Mr. Williams made several false statements. On July 25, 2014, he provided

the bank with false information about his name, date of birth, social security number, and

VA loan eligibility. The bank ran a credit report based on this false information, and




                                           - 17 -
entered the resulting information onto his application. On August 19, 2014, he provided

the bank with false income and asset information.

       Second, the bank needed to decide whether to provide a loan to Mr. Williams.

       b. Materiality

       Based on the foregoing, we address whether Mr. Williams’s misrepresentations

had the “capability” or “natural tendency” to influence a reasonable bank’s decision of

whether to provide a loan. Irvin, 682 F.3d at 1267-68; McBane, 433 F.3d 350-51. A

rational jury could conclude that Mr. Williams’s misrepresentations were material beyond

a reasonable doubt.

       First, a rational jury could conclude that the misrepresentations on the loan

application could influence the bank’s decision to issue a loan:

           Ms. Mentzel testified Mr. Williams gave her permission to run his credit
            report based on the false information he had provided her. The assets and
            liabilities entered on his loan application came from that credit report,
            reflecting his creditworthiness for a potential loan. ROA, Vol. 2 at 127-28.

           The application explained that the bank would rely on the information
            provided. By electronically signing the application, Mr. Williams agreed
            and acknowledged that “all statements made in this application are made
            for the purpose of obtaining a residential mortgage loan” and “[t]he lender
            . . . may continuously rely on the information contained in the application
            . . . .” Supp. ROA at 40. Ms. Mentzel also testified that “We have to
            [continue to] rely on information that’s given to make a decision on if
            someone can purchase a home.” ROA, Vol. 2 at 130.

           The application warned that criminal penalties could result from
            misrepresentations. By electronically signing the application, Mr. Williams
            also agreed and acknowledged that “the information provided in this
            application is true and correct . . . and that any intentional or negligent
            misrepresentation of this information contained in this application may
            result in civil liability . . . and/or in criminal penalties.” Supp. ROA at 40;

                                           - 18 -
               ROA, Vol. 2 at 130; see also id. at 167.

            The loan application packet contained another document titled
             “MORTGAGE FRAUD IS INVESTIGATED BY THE FBI,” explaining
             that “[i]t is illegal for a person to make any false statement regarding
             income, assets, debt, or matters of identification . . . in a loan and credit
             application for the purpose of influencing in any way the action of a
             financial institution.” Supp. ROA at 115. This document listed bank fraud
             under § 1344 as a potentially applicable federal criminal statute and
             required a signature by the applicant. Id.15

            Mr. Williams provided, among other things, a false name, false social
             security number, false employment verification, and false salary and
             income information. ROA, Vol. 2 at 81-90, 96-97; Supp. ROA at 36-42.
             Ms. Atkinson testified that the “[u]nderwriting [group] looks at things like
             credit history, income, employment history, debts, assets, and the value of
             property to decide whether a loan should be approved[.]” ROA, Vol. 2 at
             216.16

      Second, a rational jury could conclude that Mr. Williams’s misrepresentations

were capable of influencing the type of loan Mr. Williams could receive and the amount

he would be eligible to borrow:

              Mr. Williams falsely represented to Ms. Mentzel he was eligible for a VA
               loan and was exempt from paying the typical funding fee for a VA loan
               because he had received a Purple Heart and was on VA disability. ROA,
               Vol. 2 at 133.




      15
         Even if Mr. Williams did not sign this warning document, he signed and
returned another document in the application packet. ROA, Vol. 2 at 308-09; id. at
331. Drawing inferences in the light most favorable to the government, United States
v. Los Dahda, 853 F.3d 1101, 1106 (10th Cir. 2017), petition for cert. filed, (July 7,
2017) (No. 17-43), a rational jury could conclude Mr. Williams saw the warning
document.
      16
         Ms. Mentzel testified that “[r]ight before closing, we have to do another soft
credit pulled on their credit report.” ROA, Vol. 2 at 173.

                                           - 19 -
               Based on that representation, Ms. Mentzel “pulled his certificate of
                eligibility” for a VA loan application and began to process a VA loan
                rather than an ordinary mortgage loan. Id.

               The bank submitted the credit report to the VA to obtain a “certificate of
                commitment to guarantee the subject loan.” Supp. ROA at 43
                (Government Exhibit 6).

               Ms. Mentzel asked the underwriter to calculate the maximum loan Mr.
                Williams would be eligible to receive based on Mr. Williams’s
                misrepresentations and his VA certificate of eligibility showing he was
                eligible for a VA loan and exempt from the funding fee. ROA, Vol. 2 at
                136-37. Ms. Mentzel testified that “after the loan application was taken,”
                she “talked to [her] underwriter” to find out that the maximum for Mr.
                Williams’s loan would be $423,750. Id. at 122.

               Ms. Mentzel testified that the VA loan without the funding fee was
                “definitely a better loan” for the borrower than other types of loans. ROA,
                Vol. 2 at 133.

       Third, our case law supports the jury’s finding that Mr. Williams’s

misrepresentations were material. In United States v. Moser, 466 F. App’x 713 (10th Cir.

2012) (unpublished),17 we held that misrepresentations on attachments to a loan

application were material. We explained that an application’s showing that a “borrower

could guarantee a reliable stream of . . . income . . . was at least capable of influencing a

bank’s loan decision.” Id. at 716. Similarly, in United States v. Rackley, 986 F.2d 1357

(10th Cir. 1993), we found material the defendant’s misrepresentation about his personal

financial interest in a loan. We explained that this misrepresentation was material

because the bank “would not have approved the loans or authorized the payments at
       17
          Although not precedential, we find the reasoning of the unpublished cases
cited in this opinion to be instructive. See 10th Cir. R. 32.1 (“Unpublished decisions
are not precedential, but may be cited for their persuasive value.”); see also Fed. R.
App. P. 32.1.

                                            - 20 -
closing had the loan documents accurately reflected defendant’s interest in the loans.” Id.

at 1362. And in Irvin, we reasoned that the existence of a bank’s requirement that the

borrower submit financial information “indicate[d] the information was at least

potentially relevant to the bank’s decision, and [the defendant’s] decision to falsify the

requested information indicate[d] [that the defendant] believed” the information could

influence the bank’s decision. 682 F.3d at 1268. Mr. Williams’s misrepresentations

included a false stream of income. From the trial testimony, a rational jury could find

that Mr. Williams was unable to afford the down payment on the home or to repay the

loan. ROA, Vol. 2 at 319 (explaining that Mr. Williams stated the $70,000 down

payment “was way over his head”); id. at 281-83 (explaining that Mr. Williams was

“living in his car” when seeking the home loan and “had also filed and was going through

a bankruptcy,” claiming to have $303 “at the end of every month”). The bank would

have denied him a loan had it known his true identity and financial state. Under the

foregoing cases, his misrepresentations were capable of influencing the bank’s decision.

       c. Mr. Williams’s arguments

       Mr. Williams’s arguments that his misrepresentations were not material are

unavailing.

       First, relying on Camick, he contends that, because he never completed the loan

application and failed to date it, submit the required disclosures, submit a photo ID, or

submit other supporting documentation, his misrepresentations were incapable of

influencing the bank’s loan decision. This argument fails factually and legally.



                                           - 21 -
       Mr. Williams assumes the bank never considers an incomplete application, but the

evidence showed the bank sometimes does consider incomplete applications:

             Ms. Mentzel testified that the failure to date an application does not
              preclude the bank’s consideration of that application. She said, “Well,
              [applicants are] supposed to date it but we do have people who don’t date
              it. We don’t not accept it if it’s not dated . . . Well, I mean, they’re
              supposed to date it. . . No, we’re not going to not accept this application
              ‘cause it’s not dated.” ROA, Vol. 2 at 162-63.

             Ms. Atkinson testified that the processing group “may or . . . may not” still
              send a file to the underwriting group even if the processing group does not
              obtain all the required documents. ROA, Vol. 2 at 210. She stated that
              whether the underwriter will review the application “depends on how much
              documentation they have, and if they have enough that—underwriting has
              enough information to give a rendering or an—you know, like a
              preliminary approval, or if we have—[enough] . . . items to make a
              decision.” Id. “It’s possible to forward [the loan application] with some
              notation in the file, still waiting on X, Y, or Z.” Id. at 212.

       Camick is distinguishable. In Camick, the provisional patent application was

incapable of influencing the PTO’s decision to issue a patent without additional action by

the applicant. 796 F.3d at 1218-19.18 Even if fully completed, the PTO specified that

provisional applications “[would] not be examined for patentability” unless and until the

applicant took some further action to incorporate the provisional application into a final,




       18
         See also United States v. Rigas, 490 F.3d 208, 234-36 (2d Cir. 2007) (finding
some misrepresentations to be immaterial because they were only relevant to
decisions the bank lacked authority to make); United States v. Litvak, 808 F.3d 160,
172-74 (2d Cir. 2015) (finding misrepresentations to the Treasury were immaterial
because the Treasury did not have authority to make the relevant decisions that the
misrepresentations were intended to influence).


                                           - 22 -
nonprovisional application. Id. at 1218-19.19 If the applicant did not take further action

within a year, the preliminary application would be deemed abandoned. Id. Moreover,

even if the applicant incorporated the provisional application into a final, nonprovisional

application, the provisional application would serve only as a placeholder for the date of

its filing; the PTO’s ultimate decision on whether to issue a patent would be based on the

nonprovisional application. Id. at 1219.20

       In contrast to the provisional application in Camick, Mr. Williams’s loan

application stated: “All statements made in this application are made for the purpose of

obtaining a residential mortgage loan . . . . The lender . . . may continuously rely on the

information contained in the application.” Supp. ROA at 40. And, as Ms. Atkinson

testified, an application may be sent to the underwriting group for a loan approval


       19
          The PTO specifies that “(C) Provisional applications will not be examined
for patentability.” U.S. Patent & Trademark Office, Manual of Patent Examining
Procedure § 201.04 (9th ed. 2014); Camick, 796 F.3d at 1218 (citing PTO Manual of
Patent Examining Procedure). It “cautions” that “[p]rovisional applications are not
examined on their merits,” and “[a] provisional application cannot result in a U.S.
patent unless” a corresponding nonprovisional application for patent is filed or a
petition to convert the provisional application into a nonprovisional application is
filed. Provisional Application for Patent, U.S. Patent & Trademark Office, available
at https://perma.cc/3QAF-NKRA. It also “warn[s]” that “[i]ndependent investors
should fully understand that a provisional application will not mature into a granted
patent without further submissions by the inventor.” Id.
       20
          See Nonprovisional (Utility) Patent Application Filing Guide, U.S. Patent &
Trademark Office, available at https://perma.cc/5BLL-Z9NV (“An applicant who
decides to initially file a provisional application must file a corresponding
nonprovisional application during the 12-month pendency period of the provisional
application in order to benefit from the earlier provisional application filing. A
nonprovisional application is examined by a patent examiner and may be issued as a
patent if all the requirements for patentability are met.”).

                                             - 23 -
decision even without all required documentation. ROA, Vol. 2 at 210, 212. Thus,

unlike Camick, Mr. Williams’s misrepresentations were capable of influencing the bank’s

loan decision and were made on the same application that the bank would consider in

deciding whether to approve the loan.

       Second, Mr. Williams argues that an underwriter never considered his incomplete

application because it did not advance beyond the loan officer’s assistant. This argument

fails because a statement can be objectively material even if the decision maker did not

consider it. See e.g., United States v. Puente, 982 F.2d 156, 159 (5th Cir. 1993) (“The

statement may still be material ‘even if it is ignored or never read by the agency receiving

the misstatement.’”); United States v. Diaz, 690 F.2d 1352, 1357-58 (11th Cir. 1982)

(same); United States v. McIntosh, 655 F.2d 80, 83 (5th Cir. 1981).

       Third, Mr. Williams argues the Government has cited no bank fraud conviction in

which a defendant’s misrepresentations never reached the bank’s decision maker or the

defendant never obtained money from the bank. But our precedent holds that a decision

maker’s actual reliance on the misrepresentation is not required for a statement to be

material. Irvin, 682 F.3d at 1267. It is irrelevant that the statement did not in fact reach

the decision maker so long as the misrepresentation was objectively capable of

influencing the decision. Additionally, as we explain below, “the Government does not

have to prove the bank suffered any monetary loss, only that the bank was put at potential

risk by the scheme to defraud.” Young, 952 F.2d at 1257. Finally, the statute includes the

words “attempts to execute.” 18 U.S.C. § 1344. Requiring the government to establish

actual reliance to satisfy materiality or actual loss to show risk of loss would undermine

                                            - 24 -
the statute’s criminalization of “attempts to execute” the fraudulent scheme. 18 U.S.C.

§ 1344.

       Fourth, Mr. Williams argues the bank already knew “early in the process” the

application contained misrepresentations and had determined it would not approve the

loan. Aplt. Br. at 31. This argument overlooks Ms. Atkinson’s testimony that bank

officials told her to “just proceed on the loan.” ROA, Vol. 2 at 194-95.21 Even under Mr.

Williams’s version of the facts, an early decision to deny him a loan shows his

misrepresentations influenced the bank. As a legal matter, materiality turns on the nature

of the misrepresentation: whether it was capable of influencing the bank’s loan decision.

It does not turn on whether the decision maker actually relied on the misrepresentation.

Irvin, 682 F.3d at 1267; see also McBane, 433 F.3d at 351-52 (finding misrepresentation

to FBI was material even when FBI’s investigation was essentially complete and FBI

conceded the statement had no effect on its case because it was still “of a type” capable of

influencing a reasonable decision maker).

                                          *    *     *   *

       From the evidence at trial, a rational jury could find that Mr. Williams’s

misrepresentations were material beyond a reasonable doubt.



       21
          Ms. DeRousse also testified she planned to continue working with Mr.
Williams to obtain the documents needed to investigate further. She testified that “In
this case, I [was] still looking at this as a person who might be a potential customer.
There’s no concrete evidence that a fraud has been committed. It could still be, in my
mind, an error, so I don’t want to contact people and start interrogating them.” ROA,
Vol. 2 at 228.

                                            - 25 -
                                      C. Risk of Loss

1. Legal Background

       To satisfy the first element of bank fraud under § 1344(1)—“that the defendant

knowingly executed or attempted to execute a scheme or artifice to defraud a

financial institution”—our case law states that the government must show, in addition

to materiality, that the financial institution was put at “risk,” “potential risk,” or

suffered a “risk of loss.” United States v. Bowling, 619 F.3d 1175, 1181 (10th Cir.

2010); Swanson, 360 F.3d at 1161 (citing Akers, 215 F.3d at 1101; United States v.

Sapp, 53 F.3d 1100, 1102-03 (10th Cir. 1995); Young, 952 F.2d at 1257).22 The

government need not prove “a substantial likelihood of risk of loss” to support a bank

fraud conviction; proving a potential risk is sufficient. See United States v.




       22
          As the Government pointed out in a Rule 28(j) letter, some of our sibling
circuits do not read § 1344 to require proof of risk of loss. Fed. R. App. P. 28(j)
Supplemental Authority (May 24, 2017). See United States v. Goodale, 530 F. App’x
338, 341 (5th Cir. 2013) (unpublished) (citing United States v. Warshak, 631 F.3d
266, 313 (6th Cir. 2010); United States v. Everett, 270 F.3d 986, 991 (6th Cir. 2001);
United States v. De La Mata, 266 F.3d 1275, 1298 (11th Cir. 2001)); see also United
States v. Hoglund, 178 F.3d 410, 413 (6th Cir. 1999) (“We believe that ‘risk of loss’
is merely one way of establishing intent to defraud in bank fraud cases.”). Although
the phrase does not appear in § 1344, in this circuit the government must show “risk
of loss” to sustain a bank fraud conviction. See United States v. Akers, 215 F.3d
1089, 1101 (10th Cir. 2000); United States v. Sapp, 53 F.3d 1100, 1102-03 (10th Cir.
1995); Young, 952 F.2d at 1257. We are bound by the precedent of this circuit’s prior
panels absent en banc reconsideration or a superseding contrary decision by the
Supreme Court. Barnes v. United States, 776 F.3d 1134, 1147 (10th Cir. 2015).


                                           - 26 -
McCauley, 253 F.3d 815, 820 (5th Cir. 2001). Risk of loss is a question of fact for

the jury.23

       “To support a § 1344 conviction [for bank fraud,] the Government does not

have to prove the bank suffered any monetary loss, only that the bank was put at

potential risk by the scheme to defraud.” Young, 952 F.2d at 1257; see also United

States v. Mullins, 613 F.3d 1273, 1279 (10th Cir. 2010) (“[A] potential risk of loss is

enough to prove a scheme to defraud a financial institution.”).24 Section 1344

prohibits devising and executing, or intending and attempting to execute, a scheme to

defraud, and the ultimate success or failure of the scheme does not determine

criminal liability. United States v. Kelley, 929 F.2d 582, 585 (10th Cir. 1991); see

also 18 U.S.C. § 1344 (criminalizing “attempts to execute, a scheme or artifice . . . to


       23
          See United States v. Reaume, 338 F.3d 577, 583 (6th Cir. 2003) (treating
risk of loss as a way to prove intent and holding that “whether [the defendant]
actually harbored such intent is a question of fact for the jury to decide”); Goodale,
530 F. App’x at 342 (reviewing the district court’s risk of loss finding as a finding of
fact); United States v. Nelson, 242 F. App’x 164, 173 (5th Cir. 2007) (unpublished)
(“On this evidence, a reasonable trier of fact could have found that [the defendant]
knowingly subjected [the bank] . . . to a risk of loss.”); United States v. Rudaj, No.
04-CR-1110, 2006 WL 1876664, at *7 (S.D.N.Y. July 5, 2006) (“The issues of
materiality and whether [the defendant] intended to expose the bank to risk of loss
are questions of fact . . . .”).
       24
         See also United States v. Thomas, 315 F.3d 190, 201 (3d Cir. 2002) (“[The
legislature intended] that the [bank fraud] statute would proscribe conduct which
undermines the integrity of federal insured institutions. The reputation and integrity
of banking are harmed when a bank is victimized in a way that exposes it to liability.
Conduct which exposes a bank to liability casts the institution of banking into doubt
by adversely affecting its image with the public. It implicates the federal interest in
maintaining the integrity and esteem of our federally insured banks.”), vacated on
other grounds by Loughrin v. United States, 134 S. Ct. 2384 (2014).

                                         - 27 -
defraud a financial institution”). Thus, requiring that the bank suffer an actual loss

would conflict with the statute. Kelley, 929 F.2d at 585.

       A defendant’s conduct can expose the bank to risk of loss just by “expos[ing]

the bank to civil litigation,” even if that liability is not realized. Young, 952 F.2d at

1257; see also United States v. Lemons, 941 F.2d 309, 316 (5th Cir. 1991) (“Although

the banks did not suffer harm [from accepting the defendant’s forged check

endorsement], because [the account owner] did not challenge the endorsement, they

were at risk.”).

       “[T]here is only a small subset of cases where a defendant would intend to

defraud a bank and yet the bank would never be at any risk—i.e., incompetent

attempts.” United States v. Loughrin, 710 F.3d 1111, 1116 (10th Cir. 2013).25

1. Analysis

       The uncontested jury instruction on risk of loss stated the Government must prove

beyond a reasonable doubt that “the defendant placed Pulaski Bank at risk of civil

liability or financial loss.” ROA, Vol. 1 at 106. Based on the trial evidence viewed in the

light most favorable to the Government, a rational jury could have found that Mr.



       25
          Cases finding no risk of loss include: United States v. Rodriguez, 140 F.3d
163, 169 (2d Cir. 1998) (finding no risk of loss when a bank takes a check only as a
holder in due course, which “preclude[s] the potential that the bank could be
victimized by a loss” because the bank takes the check free of any claims or defenses
that the signatory may have or choose to institute against the bank); United States v.
Khorozian, 333 F.3d 498, 505-06 (3d Cir. 2003) (collecting cases finding no risk of
loss because “those cases involved fraud on a third party where the bank was merely
an ‘unwitting instrumentality’ in the fraud rather than the ‘target of deception’”).

                                           - 28 -
Williams exposed the bank to “a potential risk of loss,” Mullins, 613 F.3d at 1279, due to

his July 25 and August 19 misrepresentations.

       a. July 25 misrepresentations

       The trial evidence showed Mr. Williams’s misrepresentations on July 25, 2014

about his creditworthiness and VA loan eligibility exposed the bank to a risk of loss. As

explained above:

             Mr. Williams gave Ms. Mentzel permission to run his credit report based on
              the false information he had provided, and information from that credit
              report was entered on his loan application. ROA, Vol. 2 at 127-28.

             Mr. Williams provided, among other things, a false name, false social
              security number, false employment verification, and false salary and
              income information. Id. at 81-90, 96-97; Supp. ROA at 36-42. Ms.
              Atkinson testified that the underwriting group looks at that information to
              decide whether to approve a loan. ROA, Vol. 2 at 216.

             Mr. Williams falsely represented to Ms. Mentzel he was eligible for a VA
              loan and was exempt from paying a funding fee because he had received a
              Purple Heart and was on VA disability. Id. at 133. Ms. Mentzel obtained
              his certificate of eligibility for a VA loan application and began to process a
              VA loan rather than an ordinary mortgage loan. Id.26 Based on this
              information, Ms. Mentzel testified that her underwriter said the maximum
              for Mr. Williams’s loan would be $423,750. Id. at 122.

       Viewed in the light most favorable to the government, the evidence showed the

credit report used to establish Mr. Williams’s loan eligibility was based on Earl

       26
         On the VA “Addendum to Uniform Residential Loan Application,” which is
required to obtain a VA loan, the bank “ma[de] the following certifications to induce
the Department of Veterans Affairs to issue a certificate of commitment to guarantee
the subject loan”: “A. The loan terms furnished in the Uniform Residential Loan
Application and this Addendum are true, accurate and complete,” and “B. The
information contained in the Uniform Residential Loan Application and this
Addendum was obtained directly from the borrower . . . and is true to the best of the
lender’s knowledge and belief.” Supp. ROA at 43.

                                            - 29 -
Williams’s credit, which was superior to Mr. Williams’s. Bank employees testified that

incomplete applications may be passed on to an underwriter. The misrepresentations

about Mr. Williams’s creditworthiness and VA loan eligibility tended to show that Mr.

Williams exposed the bank to a risk that it might loan him more money than he could

afford to repay.

       b. August 19 misrepresentations

       The bank also faced risk when Mr. Williams continued to pursue the loan by

submitting additional documents on August 19, 2014. The evidence showed:

           After learning about the call from Earl Williams, Ms. DeRousse directed
            bank employees to continue working with Mr. Williams to obtain the
            documents needed to investigate further. Id. at 228. She testified, “In this
            case, I’m still looking at this as a person who might be a potential customer.
            There’s no concrete evidence that a fraud has been committed. It could still
            be, in my mind, an error, so I don’t want to contact people and start
            interrogating them.” Id. at 227-28.

           Mr. Williams told Ms. Mentzel that he would bring in the requested
            documents and photo ID. Id. at 141. To explain his delay, he told her
            “[t]hat he was working on it, or that he had requested information, or like
            one time, [another] bank was supposed to be sending us the bank
            statements and items that we needed.” Id. at 142.

           Ms. DeRousse testified that she contacted federal authorities about Mr.
            Williams’s application “relatively early on in the investigation,” but that she
            would investigate further if the bank received more documentation. Id.
            230-31. She stated that, after Earl Williams’s call, she “didn’t have
            sufficient information to clearly determine whether truly there was an
            identity theft in progress . . . [and she,] at that point, because [the bank]
            didn’t have the proper identification to proceed with the loan, didn’t feel
            that the bank was at a risk for a loss, so [she] was not going to do anything
            further to try to investigate.” Id. at 230-31. She continued, “Unless [the
            bank] did at some point receive the documentation [it] needed to proceed
            with the application, [she] didn’t see a need to investigate further.” Id. at
            231; see also id. at 241 (testifying that she was satisfied the bank was not at
            a risk of loss “[u]nless the proper documentation, the identification was
                                          - 30 -
              obtained”).

           Ms. DeRousse testified that, although she referred the investigation to law
            enforcement, the bank could still face a future risk of loss. She said she
            generally turns investigations over to law enforcement if she
            “[d]etermine[s] that . . . at that point, there’s no risk for loss.” Id. at 245.
            But she clarified that “[t]here could still be risk of loss, future loss.” Id. at
            246. She would then take steps to ensure that a future risk of loss did not
            occur by, for example, monitoring a loan application. Id. at 246.

           Ms. DeRousse testified that she would continue her investigation if more
            documents were received from Mr. Williams. She requested that the
            mortgage department inform her “if they did obtain that [photo]
            identification and were going to proceed with the loan . . . because at that
            point, [she] would have wanted to further [her] investigation just to assure
            that there would be no loss to the bank.” Id. at 237.

           On August 19, 2014, Mr. Williams sent additional documents to the bank,
            including a signed form titled “INTENT TO PROCEED WITH LOAN
            APPLICATION” to express his “intent to proceed with this [loan]
            application,” and a pay stub showing at least monthly net wages of
            $3,275.25. Supp. ROA at 105; ROA, Vol. 2 at 135, 308-09; id. at 331. Ms.
            DeRousse testified that this was the sort of “trickling in of documents,” that
            “would lead you to believe that maybe there was just some kind of an error.
            He’s continuing to provide the documents being asked for except for the
            driver’s license.” Id. at 232-33.

       Viewed in the light most favorable to the government, this second grouping of

evidence also was probative of risk of loss. Even if Ms. DeRousse’s testimony that she

“didn’t feel that the bank was at a risk for a loss,” id. at 230-31, could suggest the bank’s

risk had subsided when she contacted law enforcement, the risk resumed when Mr.

Williams provided further documentation on August 19 and persisted until the bank

closed his file. Ms. DeRousse testified that the bank could still be at a future risk of loss

if Mr. Williams provided further documentation. He did so on August 19, including a




                                            - 31 -
fraudulent earnings statement and the form on which he expressed his intent to proceed

with the loan.

       c. Totality of the evidence

       A rational jury could find the bank was at risk (1) after Mr. Williams called the

bank on July 25 and repeatedly misrepresented himself to Ms. Mentzel in ways that

prompted the bank to obtain a credit report and a VA loan certificate, and (2) after Mr.

Williams provided further documentation on August 19. We need not determine whether

the July 25 and August 19 misrepresentations were independently sufficient to find risk

of loss. The totality of the trial evidence was sufficient for a rational jury to find a

potential risk of loss beyond a reasonable doubt.

       d. Mr. Williams’s arguments

       Mr. Williams’s three arguments fail.

       First, he relies on Ms. DeRousse’s testimony that she determined “very early in

the process” that the bank was not at a risk of loss. Aplt. Br. at 31. But Mr. Williams has

taken Ms. DeRousse’s statement out of context. United States v. Gallant, 537 F.3d 1202,

1222-23 (10th Cir. 2008) (“Rather than examining the evidence in bits and pieces, we

evaluate the sufficiency of the evidence by considering the collective inferences to be

drawn from the evidence as a whole.” (quotations omitted)). Even if Ms. DeRousse’s

statement meant the bank’s risk had abated, she testified that “[t]here could still be risk of

loss, future loss” if more documentation was received. ROA, Vol. 2 at 246. Mr.

Williams then assured the bank he would provide the required information, sent the letter



                                             - 32 -
indicating his intent to proceed with the loan, and provided additional documentation—

together exposing the bank to the risk Ms. DeRousse described.

       Second, Mr. Williams reiterates that his loan application was incomplete and

argues his efforts were an “incompetent attempt” that did not put the bank at a risk of

loss. Aplt. Br. at 40. But as explained above, the bank employees’ testimony shows that

even an incomplete loan application may be sent to the underwriting department. See

United States v. Morganfield, 501 F.3d 453, 465-66 (5th Cir. 2007) (finding bank had

risk of loss when it was presented with a check from an account with insufficient funds

because testimony showed the bank might honor the check even when an account had

insufficient funds and “[t]hat possibility create[d] a sufficient risk of loss”).

       Additionally, a rational jury could find Mr. Williams’s misrepresentations were

not “incompetent.” When analyzing risk of loss, the question is whether the executed or

attempted scheme to defraud would objectively expose the bank to a risk of loss. See

United States v. Adekoya, 60 F. Supp. 3d 294, 300 (D.N.H. 2015) (“[A] bank fraud

conviction requires proof of a scheme—whether or not it is actually capable of success—

that would, if realized, victimize a bank . . . or put it at risk of loss.” (emphasis omitted)),

appeal filed, (Mar. 13, 2015) (No. 15-1304). As with materiality, the factfinder must

look to the nature of the misrepresentation and determine whether that misrepresentation

would expose a bank to a potential risk of loss.27 This approach is consistent with the


       27
         See United States v. Jacobs, 117 F.3d 82, 93 (2d Cir. 1997) (“Jacobs may
have intended to defraud [only] his customers by inducing them to purchase certified
drafts which he knew were not ‘worth the paper they’re printed on,’ but inherent in
                                                                         Continued . . .
                                             - 33 -
statute’s criminalization of “attempts to execute” a scheme to defraud, § 1344, and our

precedent that the bank need not suffer actual loss. Young, 952 F.2d at 1257.28 Here, Mr.

Williams’s misrepresentations inflating his ability to repay a loan exposed the bank to a

potential risk that the bank would approve a loan he would be unable to repay. See

Jacobs, 117 F.3d at 93 (“But, for purposes of this statute, the risk can be said to have been

increased in that there was some possibility—at least a potential—that the bank would

release security, delay efforts at collection or otherwise act in reliance upon its receipt of

the certified drafts.”); id. (“Admittedly, the possibility of such actions in reliance may be

rather remote since banks are cautious; but such actions are not impossible and, under the

case law, a mere possibility of detrimental reliance is enough.”).

       Third, Mr. Williams argues that his August 19, 2014 misrepresentations did not

put the bank at a risk of loss because the bank sent a second notice of incompleteness just

three days later.29 But Ms. Atkinson testified that the first notice of incompleteness gave


that transaction was the risk that the certified drafts would eventually be presented to
the [bank] as payment, and acceptance of a false certified draft would expose the []
bank to real loss.” (emphasis added)), vacated on other grounds by Loughrin, 134 S.
Ct. 2384; United States v. Stavroulakis, 952 F.2d 686, 695 (2d Cir. 1992) (“Inherent
in a [scheme for the] sale of stolen checks is that they will eventually be presented to
the drawee bank for payment; and payment over a forged signature exposes the bank
to real loss.” (emphasis added)).
       28
          Allowing an incomplete scheme to avoid liability would undermine the
statute’s criminalization of attempts to execute a fraudulent scheme. A “potential
risk of loss” necessarily includes loss that has not and may not be realized.
       29
         Even though the bank closed Mr. Williams’s loan file for incompleteness
and avoided actual monetary loss, we reiterate that “the Government does not have to
prove the bank suffered any monetary loss, only that the bank was put at potential
                                                                       Continued . . .
                                            - 34 -
Mr. Williams ten business days to provide more requested documents, which he did on

August 19, and the second notice gave him five more business days. The notices thus

provided Mr. Williams with an opportunity to remedy the incompleteness until the bank

closed the file. The bank’s risk of loss thus persisted until then.

                                           *   *     *   *

       From the evidence at trial, a reasonable jury could find that Mr. Williams’s

misrepresentations exposed the bank to a potential risk of loss beyond a reasonable doubt.

                                    III. CONCLUSION

       For the foregoing reasons, we affirm Mr. Williams’s bank fraud conviction.

We also affirm his aggravated identity theft conviction because it rises and falls with

the bank fraud conviction.




risk by the scheme to defraud.” Young, 952 F.2d at 1257; see also United States v.
Hord, 6 F.3d 276, 282 (5th Cir. 1993) (explaining that it is “[n]o matter that, in this
case, the bank quickly discovered the scheme and avoided [actual] loss”). We look
to whether the scheme exposed the bank to a potential risk of loss; not whether actual
loss was incurred. Young, 952 F.2d at 1257. Here, the bank was exposed to a
potential risk of loss by Mr. Williams’s misrepresentations about his creditworthiness
and VA loan eligibility. Mr. Williams’s continued pursuit of the loan perpetuated the
risk.

                                            - 35 -
