                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    December 14, 2006
                              FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                       Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-4017
                                                 (D.C. No. 2:05-CR-183-TC)
    TA N Y A MC D O NA LD ,                              (D. Utah)

                Defendant-Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




         Tanya M cDonald was convicted by a jury of two counts of bank fraud in

violation of 18 U .S.C. § 1344. M cDonald w as sentenced to 24 months’

imprisonment and 60 months of supervised released. She was also ordered to pay

restitution in the amount of $110,500. M cDonald appeals her convictions and

sentence, claiming the government presented insufficient evidence to support




*
 After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
convictions for bank fraud, the jury instruction setting forth the elements of bank

fraud was plainly erroneous, and the district court erred in denying her motion for

a new trial or judgment of acquittal. Exercising jurisdiction under 28 U.S.C.

§ 1291, we A FFIR M .

      After gaining the trust of the Valdivia family, M cDonald agreed to assist

them in obtaining a small business loan. She told them they could acquire a $1

million business loan from M ountain America Credit Union (“M ACU”) if they

put up a ten percent deposit. M cDonald had a Valdivia family member give her

two $50,000 cashier’s checks payable to M ACU. She represented that the funds

would be placed in an escrow account pending approval of the loan and that

M ACU would be responsible if anything happened to their money because it was

federally insured. Instead, she deposited the money in her personal account and

used it to purchase money orders for her own personal use.

      W hen the Valdivias learned of M cDonald’s actions they contacted the

police. They also sued M ACU and obtained a monetary settlement. M cDonald

was convicted of two counts of bank fraud in violation of 18 U.S.C. § 1344. She

then moved for judgment of acquittal, or in the alternative, a new trial. That

motion was denied. She now appeals.

      The federal bank fraud statute provides:

      W hoever knowingly executes, or attempts to execute, a scheme or
      artifice–
      (1) to defraud a financial institution; or

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         (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.

18 U.S.C. § 1344.

         “The bank fraud statute contains virtually the same language as the

[federal] mail and wire fraud statutes,” and, like those statutes, “courts have

construed the bank fraud statute liberally.” United States v. Young, 952 F.2d

1252, 1255-56 (10th Cir. 1991). To convict under § 1344, the government must

prove: “(1) that the defendant knowingly executed or attempted to execute a

scheme (i) to defraud, or (ii) to obtain property by means of false or fraudulent

pretenses, representations or promises; (2) that the defendant did so with the

intent to defraud; and (3) that the financial institution was [federally insured].” 1

United States v. Rackley, 986 F.2d 1357, 1360-61 (10th Cir. 1993) (footnote

omitted). To establish a violation of § 1344(1), the government must also prove

that “the bank was put at potential risk by the scheme to defraud.” Young, 952

F.2d at 1257. But cf. United States v. Sapp, 53 F.3d 1100, 1103 (10th Cir. 1995)

(“[T]he government need not prove that a defendant put a bank ‘at risk’ to sustain

a conviction under section 1344(2).”). 2


1
    The parties stipulated at trial that M ACU was federally insured.
2
    M cDonald urges us to adopt a reading of subsection 2 that would require intent
                                                                      (continued...)

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      M cDonald contends the government presented insufficient evidence at trial

to support her convictions for bank fraud. W e review challenges to the

sufficiency of the evidence de novo, viewing all evidence in the light most

favorable to the government. United States v. Isaac-Sigala, 448 F.3d 1206, 1210

(10th Cir. 2006). “A conviction should be reversed only if no reasonable juror

could have reached the disputed verdict.” Id. (quotation omitted).

      Although couched as a sufficiency of the evidence challenge, M cD onald’s

basic argument is that the conduct proved at trial is not criminalized under

§ 1344. W e disagree. M cDonald made implicit false misrepresentations to

M ACU that she had authority to deposit the two cashier’s checks into her

personal bank account, which was critical to completing her fraudulent plan.

These misrepresentations constitute sufficient evidence of M cDonald’s intent to

defraud M ACU. See Young, 952 F.2d at 1255-57 (inferring intent to defraud a




2
 (...continued)
to defraud a financial institution, rather than a general intent to defraud. The
circuits are currently divided on this issue. See United States v. Thomas, 315
F.3d 190, 196 (3d Cir. 2002) (discussing the circuit split). W e need not address
the question here because, as we discuss below, the government proved beyond a
reasonable doubt that M cD onald intended to defraud M ACU.
       Similarly, the jury’s general verdict does not present an issue. At the
conclusion of M cDonald’s trial, the district court instructed the jury on the
elements of both subsections of § 1344. The jury subsequently returned a general
verdict convicting M cDonald of two counts of bank fraud without specifying
which subsection was violated as to each count. Because we have determined that
the government adequately proved that M cDonald committed bank fraud under
both subsections of § 1344, this ambiguity does not impede our review.

                                        -4-
financial institution from defendant’s misrepresentation that she was authorized to

cash certain checks). Nothing in § 1344 or its interpretative case law requires

that a misrepresentation be explicit. Id. at 1256-57 (considering both implicit and

explicit misrepresentations for purposes of establishing liability under § 1344(1)).

      Additionally, as in Y oung, M cDonald’s conduct put M ACU at potential risk

of suffering a financial loss by exposing it to civil litigation. See id. at 1257. In

fact, M ACU eventually made a monetary payment to the Valdivias to settle their

claim. W e therefore have little difficulty concluding M cDonald was properly

convicted of engaging in a scheme to defraud M ACU in violation of § 1344(1).

      W e have equally little trouble in determining M cDonald was properly

convicted under § 1344(2), which “extends to any know ingly false

representation.” Sapp, 53 F.3d at 1102 (quotation omitted). M cD onald’s

misrepresentation to M ACU that she had the authority to deposit the two checks

into her personal account constituted a scheme to obtain funds under the custody

of M ACU “by means of false or fraudulent pretenses, representations or

promises.” § 1344(2); see also United States v. Briggs, 965 F.2d 10, 12 (5th Cir.

1992) (concluding that “an implicit misrepresentation by [the defendant] that she

was acting under her employer’s authority [w hen she made unauthorized wire

transfers from her employer’s bank account] would be sufficient to establish the

misrepresentation element of [§ 1344(2)].”); United States v. M orgenstern, 933

F.2d 1108, 1113 (2d Cir. 1991) (affirming a conviction under § 1344(2) w here

                                          -5-
defendant implicitly misrepresented his authority to deposit checks). Her intent

to defraud M ACU is easily inferred by her actions.

       M cDonald also argues that Jury Instruction 15 was erroneous because it did

not require a finding of intent to defraud a financial institution and it comm ingled

the elements of §1344’s two subsections. Because she failed to object to the

instruction at trial, we review only for plain error. United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). On plain-error

review, we will reverse only if “there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. An error is “plain” if it is “clear

or obvious at the time of appeal.” Id. To establish that a plain error affected her

substantial rights, M cDonald must show “a reasonable probability that, but for the

error claimed, the result of the proceeding would have been different.” Id. at 733

(quotation omitted).

       Instruction 15 set forth the elements of bank fraud under § 1344(1) and (2)

as follow s:

          First: the defendant knowingly executed a scheme or artifice to
       defraud M ountain America Credit Union or to obtain money or
       property from M ountain America Credit Union by means of false or
       fraudulent pretenses, representations, or promises;
          Second: M ountain America Credit Union was insured by the
       National Credit Union Association as defined by 18 U.S.C. § 20;
          Third: the defendant acted with intent to defraud.
          Fourth: the false or fraudulent pretenses, representations, or
       promises that the defendant made were material, meaning they would

                                          -6-
      naturally tend to influence, or were capable of influencing the
      decision of M ountain America Credit Union.
         ....
         Although it is not necessary for the government to prove an actual
      loss of funds by the bank, the government must prove beyond a
      reasonable doubt that by executing or attempting to execute the
      scheme alleged in the Indictment, the defendant placed the bank at a
      risk of loss and that the bank did not knowingly accept such a risk.

      Instruction 15 does not contain any error, let alone plain error. W e reject

M cDonald’s argument that the instruction permitted the jury to convict upon a

finding that she intended to defraud the V aldivia family, rather than M ACU. It

specifically required findings that M cDonald “executed a scheme or artifice to

defraud M ountain America Credit Union or to obtain money or property from

M ountain America Credit Union” and that the misrepresentations “would

naturally tend to influence, or were capable of influencing the decision of

M ountain America Credit Union” (emphasis added). Read as a whole, Instruction

15 made it clear to the jury that the fraudulent scheme and the requisite intent

m ust have been directed tow ards M ACU.

      M cDonald’s commingling claim is without merit. Bank fraud instructions

setting forth the elements of subsections 1 and 2 in the disjunctive are proper in

this Circuit. See Rackley, 986 F.2d at 1361 n.5 (“W e have previously held that

this disjunctive instruction properly tracks the language of the statute and

accurately states the necessary elements required to be found by a jury under the

alternate prongs of 18 U.S.C. § 1344.”). Further, the instruction substantially



                                         -7-
mirrored this court’s pattern bank fraud instruction. See 10th Cir., Criminal

Pattern Jury Instructions, No. 2.58.

      For the reasons stated above, M cDonald’s convictions are AFFIRM ED.

W e also AFFIRM the district court’s denial of her motion for a new trial or

judgment of acquittal. Because the government has failed to show any prejudice,

we GR ANT M cDonald’s motion to supplement the record on appeal with a five-

volume supplemental appendix.


                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge




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