     Case: 15-41416      Document: 00513603052         Page: 1    Date Filed: 07/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41416
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 21, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARCO F. MADAIO, also known as William A. McCoy,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:06-CR-238-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       In 2006, Marco F. Madaio was indicted for bank fraud in violation of 18
U.S.C. § 1344. The indictment alleged that on June 18, 2002, Madaio opened
a bank account at Northstar Bank of Texas (Northstar Bank); on July 1, 2002,
Madaio deposited in his Northstar Bank account check # 326 in the amount of
$450,000, which was originally made payable to the Internal Revenue Service
(IRS) but had been altered to be made payable to “Marco Madio [sic] or Rolf


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-41416

Deush;” and Madaio thereafter withdrew funds from the Northstar Bank
account that had been fraudulently inflated due to his deposit of the altered
check. After a 2015 jury trial, Madaio was convicted and sentenced to 33
months of imprisonment, five years of supervised release, and restitution in
the amount of $299,757.04.
       Madaio now appeals his conviction on the ground that the evidence was
insufficient to support the jury’s guilty verdict. 1 Because Madaio preserved
this challenge for appeal by seeking a judgment of acquittal following the
Government’s case in chief, which constituted the close of all evidence, this
court reviews his challenge de novo. See United States v. Alaniz, 726 F.3d 586,
600 (5th Cir. 2013).
       Section 1344 sets forth two methods by which a person can commit bank
fraud. § 1344; see United States v. Medeles, 916 F.2d 195, 198 (5th Cir. 1990).
Both methods contain the primary element of “knowingly execut[ing], or
attempt[ing] to execute, a scheme or artifice.” § 1344; see Medeles, 916 F.2d at
198. The first method requires only that the scheme is “to defraud a financial
institution.” § 1344(1); see Medeles, 916 F.2d at 198. The second method
requires that the scheme is “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. § 1344(2); see Medeles, 916 F.2d at 198. An
indictment may allege both methods of violating § 1344, and a conviction “will
stand if proof of one or more of the means of commission is sufficient.” United
States v. Harvard, 103 F.3d 412, 420 (5th Cir. 1997) (internal quotation marks
and citation omitted).        Because the indictment in this case alleged both


       1  Although Madaio has been released from BOP custody, his appeal is not moot
because he is challenging his conviction. See United States v. Lares-Meraz, 452 F.3d 352, 355
(5th Cir. 2006).


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                                 No. 15-41416

methods of violating § 1344 and the trial court instructed the jury as to the
elements of both methods, Madaio’s conviction may be sustained under either
§ 1344(1) or § 1344(2). See Medeles, 916 F.2d at 198.
      Madaio’s sole contention on appeal is that the evidence was insufficient
to prove that he knew check # 326 had been altered or was fraudulent. A
conviction under § 1344(2) expressly requires the knowing execution of a
scheme “by means of false or fraudulent pretenses, representations, or
promises,” which includes the presentation of a forged or altered check. See
Loughrin v. United States, 134 S. Ct. 2384, 2393 (2014). Likewise, a conviction
under § 1344(1) requires the knowing execution of a “scheme to defraud,” such
as through “false or fraudulent pretenses or representations intended to
deceive others.” United States v. Saks, 964 F.2d 1514, 1518 (5th Cir. 1992).
Therefore, a necessary element of Madaio’s conviction for bank fraud under
either subsection of § 1344 is that he knew he was depositing an altered or
fraudulent check.
      Interpreted in the light most favorable to the Government, there was
significant circumstantial evidence supporting Madaio’s awareness that check
# 326 had been altered or was fraudulent. See Alaniz, 726 F.3d at 600 (holding
that, in evaluating the sufficiency of the evidence, this court views all of the
evidence, whether circumstantial or direct, in the light most favorable to the
Government, with all reasonable inferences and credibility choices made in
support of the verdict). The evidence shows that Madaio provided conflicting
explanations regarding the source and purpose of check # 326; after initially
stating that the check was for oilfield equipment, Madaio later explained that
it was from a foreign individual named “Chief Chetty” for the purposes of a
currency exchange and investment. See United States v. Odiodio, 244 F.3d
398, 403 (5th Cir. 2001) (citing inconsistent and implausible statements to



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                                  No. 15-41416

explain the source of disputed funds as circumstantial evidence of participation
in a scheme to defraud by wire). Additionally, Madaio deposited the $450,000
check into a new and nearly empty account, which he largely depleted in a
matter of weeks, primarily through cash withdrawals, domestic and
international wire transfers, and checks for personal expenses or made payable
to cash, to himself or to his personal associates; one withdrawal was made by
“W.A. McCoy,” Madaio’s alias. See id. (citing prompt wiring out of the country
upon receiving disputed funds as circumstantial evidence of participation in a
scheme to defraud by wire). Finally, once check # 326 was discovered to be
fraudulent, Madaio repeatedly failed to keep appointments with bank
employees and, after being interviewed by an IRS investigator, departed the
United States for an undisclosed location and remained abroad until he was
extradited approximately 10 years later. See United States v. Martinez, 190
F.3d 673, 678 (5th Cir. 1999) (describing flight as probative of guilt).
      There is no merit to Madaio’s contention that the evidence was
insufficient to establish his guilty knowledge because the face of the check did
not appear fraudulent, he was not under investigation or barred from leaving
at the time he departed the United States, and he opened the Northstar Bank
account before check # 326 could had been received by any defrauding party.
Interpreting the evidence in the light most favorable to the Government, the
jury could have reasonably inferred that the face of check # 326 conflicted with
Madaio’s ultimate explanation of its source and purpose, Madaio fled in order
to avoid possible future prosecution, and Madaio opened the Northstar Bank
account as part of a fraudulent scheme to deposit any suitable large check that
might be obtained and altered by a defrauding party in the near future. See
Alaniz, 726 F.3d at 600.




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                                No. 15-41416

      In light of the foregoing, a reasonable trier of fact could have found
beyond a reasonable doubt that Madaio was aware that check # 326 had been
altered or was fraudulent. See id. at 601 (holding that the evidence was
sufficient if a reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt). As Madaio has challenged the
sufficiency of his conviction for bank fraud solely on the basis that he lacked
guilty knowledge regarding the altered or fraudulent check, the conviction is
AFFIRMED.




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