           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2    United States v. Reaume                      No. 02-1112
        ELECTRONIC CITATION: 2003 FED App. 0254P (6th Cir.)
                    File Name: 03a0254p.06                            STATES ATTORNEY, Detroit, Michigan, for Appellee.
                                                                      ON BRIEF: Richard B. Ginsberg, Ann Arbor, Michigan, for
                                                                      Appellant. Stephen L. Hiyama, ASSISTANT UNITED
UNITED STATES COURT OF APPEALS                                        STATES ATTORNEY, Detroit, Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT                                                   _________________
                    _________________
                                                                                              OPINION
 UNITED STATES OF AMERICA , X                                                             _________________
            Plaintiff-Appellee, -                                        R. GUY COLE, JR., Circuit Judge. Defendant-Appellant
                                   -
                                   -  No. 02-1112                     Scott A. Reaume was convicted by a jury of committing bank
           v.                      -                                  fraud, in violation of 18 U.S.C. § 1344. Reaume admits to
                                    >                                 opening several checking accounts at a federally insured
                                   ,                                  financial institution, making an initial deposit of a small sum,
 SCOTT A. REAUME,                  -
         Defendant-Appellant. -                                       writing checks from these accounts for goods and services
                                                                      throughout the country with the knowledge that the accounts
                                  N                                   did not contain sufficient funds to cover the value of the
      Appeal from the United States District Court                    checks, and returning the majority of the items purchased by
     for the Eastern District of Michigan at Detroit.                 check to branches of stores in different locations in exchange
    No. 97-81475—Gerald E. Rosen, District Judge.                     for cash.

                     Argued: June 20, 2003                              After proceeding to trial on the theory that his scheme was
                                                                      not intended to defraud a federally insured financial
               Decided and Filed: July 28, 2003                       institution, Reaume was found guilty by a jury. The final
                                                                      judgment of conviction and sentence was entered on
        Before: KENNEDY and COLE, Circuit Judges;                     January 3, 2002, and this timely appeal followed.
              WILLIAMS, Senior District Judge.*
                                                                        For the reasons that follow, we AFFIRM the judgment of
                      _________________                               the district court.

                           COUNSEL                                                                   I.

ARGUED: Richard B. Ginsberg, Ann Arbor, Michigan, for                   On August 19, 1999, a federal grand jury returned a
Appellant. Stephen L. Hiyama, ASSISTANT UNITED                        one-count indictment charging Reaume with bank fraud. The
                                                                      indictment alleged that Reaume knowingly executed a scheme
                                                                      to defraud Monroe Bank and Trust (“the Bank”).
    *                                                                   Reaume’s jury trial began on August 14, 2001. At trial,
     The Honorable Glen M. Williams, Senior United States District
Judge for the Western District of Virginia, sitting by designation.   testimony was presented that Reaume opened two checking

                                1
No. 02-1112                     United States v. Reaume         3    4    United States v. Reaume                      No. 02-1112

accounts at the Bank using the aliases Steven D. McIlveen                                          II.
and Robert Sandor. Accounts also were opened at the Bank
by Adam Rodriguez and Danny K. Drummond in their own                 A. Sufficiency of the Evidence and Intent to Defraud
names. Drummond opened an additional account under the
alias of John S. Woods.                                                 Reaume argues that there was insufficient evidence to find
                                                                     that he specifically intended to defraud the Bank, as opposed
  Reaume, Rodriguez, and Drummond used checks drawn                  to the merchants or their insurers. He contends that an intent
from their accounts to purchase merchandise at various               to defraud the payee of an NSF check does not provide a basis
branches of national-chain retailers, and subsequently               for a finding that there was an intent to subject the issuing
returned most of the merchandise for cash refunds at other           bank to a loss. Accordingly, Reaume argues that the district
branches of the stores. The Bank flagged the five accounts           court erred in denying his motion for a judgment of acquittal.
early on and refused to honor the checks for which there were        The denial of a motion for a judgment of acquittal is reviewed
insufficient funds (“NSF checks”). The losses resulting from         de novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir.
the passing of these NSF checks, therefore, fell on either the       2002).
retailers themselves or the check-guarantee companies that
insured the retailers.                                                  Three elements are required for a conviction of bank fraud
                                                                     pursuant to § 1344: (1) the defendant must have knowingly
  On August 16, 2001, the jury returned a guilty verdict. On         executed or attempted to execute a scheme to defraud a
January 3, 2002, the district court determined that Reaume’s         financial institution; (2) the defendant must have done so with
guideline range was twenty-seven to thirty-three months,             the intent to defraud; and (3) the financial institution must
sentenced Reaume to thirty months of imprisonment and four           have been insured by the Federal Deposit Insurance
years of supervised release, and ordered him to pay restitution      Corporation. United States v. Everett, 270 F.3d 986, 989 (6th
in the amount of $95,649.26.                                         Cir. 2001).

  On appeal, Reaume raises four points of error. First, he              This Court previously addressed the intent element of the
argues that the evidence presented at trial was insufficient to      bank fraud statute in United States v. Hoglund, 178 F.3d 410
maintain a conviction under the federal bank fraud statute           (6th Cir. 1999), and Everett. While neither of these cases are
because there was no evidence that he intended to defraud the        directly controlling, their explication here is critical because
bank itself, as opposed to the individual merchants or their         it is from these cases that we distill the principle which we
respective insurance companies. Second, Reaume contends              apply to the present case.
that the district court erred in refusing to award him a
two-point reduction in offense level for acceptance of                  In Hoglund, an attorney was convicted under § 1344 after
responsibility. Third, he asserts that the district court erred in   settling his clients’ cases without their permission, forging
overruling his objections at sentencing to the amount of             their signatures on the settlement checks he received, and
money at issue in the fraud. Fourth, Reaume argues that the          depositing the money into his own account. 178 F.3d at 411.
district court erred in ordering him to pay restitution in excess    In Hoglund, we addressed the issue of whether the
of $95,000 without considering his ability to pay.                   Government must prove that the defendant exposed a bank to
                                                                     a risk of loss as part of the “scheme to defraud” element. Id.
                                                                     at 413. Hoglund resolved this question by holding that “risk
No. 02-1112                     United States v. Reaume         5    6    United States v. Reaume                      No. 02-1112

of loss” is simply “one way of establishing intent to defraud           Unlike the defendant in Hoglund, Reaume contends that he
in bank cases.” Id. Thus, this Court found that a defendant          harbored no intent to expose the financial institution to a risk
need not have exposed a bank to a risk of loss as an element         of loss. Moreover, unlike the situation in Everett, Reaume
of bank fraud. Id. Instead, proof that the defendant “intended       contends, and the evidence substantiates, that the Bank never
to put a bank at a risk of loss” was sufficient to maintain a        transferred any funds in connection with the fraudulent
bank fraud conviction. Id. Thus, Hoglund held that the bank          activity. Thus, it appears that Reaume’s particular fact pattern
fraud statute is violated, even when there is no actual risk of      does not fall neatly under the Hoglund or Everett rubric,
loss on the part of the bank, if the defendant’s intent is to        which consider both the intended victim and actual loss.
expose the bank to such a risk. While informative, Hoglund
is not controlling in the present case. Here, in contrast to            We nevertheless affirm Reaume’s conviction. The specific
Hoglund, the defendant claims that, regardless of whether            issue that Reaume appeals is the evidence of his intent to
there was an actual risk of loss, there was no intent to expose      defraud the Bank itself. In Everett, this Court held that an
the Bank to a risk of loss.                                          intent to put the financial institution at a risk of loss is not
                                                                     required, and that the fact that the defendant defrauded
   In Everett, the defendant, a certified public accountant, was     someone was sufficient, given that the fraud caused the bank
found guilty of bank fraud by a jury. 270 F.3d at 989. On            to transfer funds. 270 F.3d at 991. In the present case, the
appeal, the defendant argued that the Government failed to           Bank was clearly at a risk of loss. Evidence was presented at
prove the specific intent required by § 1344, namely, the            trial to demonstrate that, when the Bank receives an NSF
intent to defraud a federally insured bank, or at least to put the   check, it makes a decision to either honor the check anyway
bank at a risk of loss. Id. at 990. The defendant                    or to dishonor the check. If the check is dishonored, the Bank
acknowledged that there was evidence that she intended to            does not lose any money, but if the check is honored, and the
defraud her client, but argued that the manner in which she          account holder fails to pay back that debt to the Bank, the
defrauded her client did not impose a risk of loss on the bank       Bank suffers a loss. Therefore, it is clear that Reaume’s
in question. Id. In affirming the conviction, we held that the       fraudulent activity, regardless of the intended victim, could
specific intent required for bank fraud does not require putting     have caused the Bank to transfer funds. If in fact the Bank
the bank at a risk of a loss or intending to do so “in the usual     had transferred funds, then this case would clearly be
sense.” Id. at 991. “It is sufficient if the defendant in the        governed by Everett, because an intent to defraud someone
course of committing fraud on someone causes a federally             would have caused the Bank to transfer funds. The issue of
insured bank to transfer funds under its possession and              Reaume’s intent simply cannot logically turn on the course of
control.” Id. Everett, therefore, can be said to stand for the       action chosen by the Bank after receiving the NSF checks.
proposition that the bank fraud statute is violated, even if the     Accordingly, it is a necessary extension of Everett to find the
intended victim of the fraudulent activity is an entity other        intent element of § 1344 satisfied in this case.
than a federally insured financial institution, when the
fraudulent activity causes the bank to transfer funds. Thus,           Everett contains language to support this outcome. In
the holding of Everett is also instructive but not squarely on       Everett, this Court stated that the Government is probably
point, as there was no evidence in the present case indicating       better advised to proceed under the wire or mail fraud statutes
that the Bank actually did transfer funds in connection with         where the bank has “minimal involvement, such as where a
Reaume’s fraudulent activities.                                      swindler deceives someone into voluntarily writing checks to
                                                                     the swindler on a good account.” Id. Nevertheless, the Court
No. 02-1112                        United States v. Reaume           7    8     United States v. Reaume                      No. 02-1112

indicated that even such a minimal involvement of the bank                district court’s finding that a defendant is not entitled to a
is sufficient to find liability under § 1344 when the specific            sentencing reduction for acceptance of responsibility for clear
intent to defraud someone is present. Id. Therefore, we need              error. United States v. Childers, 86 F.3d 562, 563 (6th Cir.
not address the question of whether the evidence presented at             1996). However, if the only issue presented is the propriety
trial was sufficient for a reasonable jury to find that Reaume            of applying the reduction to the uncontested facts, the
intended to defraud the Bank specifically. Applying the                   decision is reviewed de novo. United States v. Tilford, 224
reasoning of Hoglund and Everett, we find that intent to                  F.3d 865, 867 (6th Cir. 2000).
defraud the federally insured institution itself is satisfied
where: (1) the intent to defraud some entity was present; and               The United States Sentencing Guidelines (the “Guidelines”)
(2) that intended fraud placed a federally insured financial              provide that a two-point reduction in offense level is
institution at a risk of loss.                                            applicable where the defendant clearly demonstrates
                                                                          acceptance of responsibility for his offense.                U.S.
   In providing the jury with instructions at the close of trial,         SENTENCING GUIDELINES MANUAL § 3E1.1. While a guilty
the district court stated that the Government not only needed             plea is ordinarily a prerequisite for this reduction, Application
to prove that Reaume knowingly executed or participated in                Note 2 of this provision states that conviction by trial does not
a scheme to defraud a federally insured financial institution,            automatically exclude a defendant from consideration for this
but also that Reaume “did so with the intent to defraud                   reduction. U.S. SENTENCING GUIDELINES MANUAL § 3E1.1,
Monroe Bank & Trust.” The district court later stated that                comment. 2. The Guidelines provide that, under rare
“the Government must prove beyond a reasonable doubt that                 circumstances, a defendant may clearly demonstrate an
the scheme to defraud was employed by the defendant to                    acceptance of responsibility despite exercising his
defraud Monroe Bank & Trust.” Given our holding in Everett                constitutional right to trial. Id. For instance, where a
that the intent to have a bank be the victim of the fraudulent            defendant goes to trial to assert issues that do not relate to
conduct is not a prerequisite to maintaining a conviction                 factual guilt, such as a challenge to the applicability of a
under the bank fraud statute, the jury instructions given by the          statute to his conduct, a reduction may be warranted. Id.
district court benefitted Reaume.1 In light of Everett,                   Even in such an instance, however, “a determination that a
therefore, Reaume’s argument that the evidence presented at               defendant has accepted responsibility will be based primarily
trial was insufficient to demonstrate the intent required by the          upon pre-trial statements and conduct.” Id.
bank fraud statute fails.
                                                                             Reaume’s position is that he did not contest the
B. Sentence Reduction for Acceptance of Responsibility                    Government’s factual allegations at trial, but rather, merely
                                                                          contested the applicability of the bank fraud statute to the
  Reaume appeals the decision of the district court refusing              conduct in which he participated.           In contrast, the
to grant him a two-point reduction in his offense level for               Government maintains that Reaume did in fact contest the
acceptance of responsibility. Because such a finding                      issue of whether he participated in the scheme with an intent
generally presents a question of fact, this Court reviews a               to defraud the Bank. According to the Government,
                                                                          Reaume’s specific intent to defraud the Bank is a factual
                                                                          matter.
    1
     It should be no ted that Eve rett was decided on October 12, 2001,
and Reaume’s trial conclude d on Augu st 16, 2 001 .
No. 02-1112                          United States v. Reaume             9    10   United States v. Reaume                      No. 02-1112

   We agree with the Government. At the time of Reaume’s                      younger brother; and (3) $10,865.62 for the losses caused by
trial, the district court and the parties accepted that the                   Pamela Reaume, the defendant’s sister.
Government’s burden included demonstrating that Reaume
intended to place the Bank at a risk of loss. Whether this                       At the sentencing hearing, the district court expressed
intent is required under § 1344 is a question of law, but                     concern about attributing to Reaume the losses caused by his
whether Reaume actually harbored such an intent is a                          siblings. Accordingly, the district court decided not to
question of fact for the jury to decide. Reaume elected to put                impose a sentence until it had the opportunity to hear
the Government to its burden of proof at trial by denying                     testimony from the two siblings and make a determination as
what was understood to be an essential factual element of                     to whether their conduct was connected to Reaume’s conduct
guilt. Accordingly, the refusal of the district court to award                in a manner that was sufficient to satisfy the relevant conduct
Reaume a reduction for acceptance of responsibility was not                   criteria for sentencing purposes.
clear error.
                                                                                In its second sentencing memorandum, the Government
C. Amount of Loss                                                             abandoned its position that the activity of Reaume’s siblings
                                                                              should be attributed to Reaume and instead argued that the
   Reaume argues that the district court erred by scoring his                 additional relevant conduct for which Reaume should be held
Guidelines range based on a finding that the relevant conduct                 responsible involved Reaume’s own fraudulent conduct
contributed to between $200,000 and $350,000 in losses.                       beyond that charged in the indictment. According to the
This Court will only set aside a district court’s factual finding             Government, Reaume opened numerous fraudulent checking
with regard to the amount of loss attributed to a defendant                   accounts at other financial institutions throughout the country.
under Guidelines § 2F1.1(b) if it concludes that the district                 The evidence of this activity consisted of: (1) Reaume’s 1991
court’s finding of fact was clearly erroneous.2 United States                 arrest in Illinois for attempting to purchase clothing with a
v. Ware, 282 F.3d 902, 907 (6th Cir. 2002).                                   bad check; (2) Reaume’s admission, subsequent to the 1991
                                                                              arrest, that he had made as much as $70,000 per year through
   In its first sentencing memorandum, the Government                         his NSF-checking scheme; (3) Adam Rodriguez’s testimony
attributed $211,193.99 in losses to Reaume, comprising the                    that he and Reaume had been traveling the country writing
following sums: (1) $108,328.37 for the losses caused by                      bad checks for about three years, obtaining thousands of
Reaume, Rodriguez, and Drummond through the use of NSF                        dollars a month by doing so; (4) numerous canceled checks
checks from the Bank; (2) $92,000.00 for the losses caused by                 obtained by the FBI; (5) a number of fake identification cards
the use of NSF checks by Jamie Reaume, the defendant’s                        possessed by Reaume; (6) Reaume’s 1993 arrest in Florida for
                                                                              passing bad checks; and (7) the absence of any record of
                                                                              legitimate employment. The district court accepted the
                                                                              Government’s rationale and found Reaume to be responsible
    2
     Guideline § 2F1.1 has been repea led and replaced by the
                                                                              for between $200,000 and $350,000 in losses.
consolidated property-crime provisions in § 2B1.1. Section 2F1.1 was
repealed prior to Reaume’s sentencing. N evertheless, due to ex po st facto      Reaume contends that this finding was in error for two
concerns that arise as a result of the harsher penalties contained in         reasons. First, Reaume argues that the district court erred by
§ 2B1 .1, the probation officer was correct to use the version of the fraud   allowing the Government to change its theory on which the
guideline, § 2F1.1 , in effect when Reaum e’s offense occu rred. See U.S.     amount of loss was based without providing him with
S ENTENCING G UIDELINES M ANUAL § 1B 1.11 (b)(1 ).
No. 02-1112                     United States v. Reaume        11    12    United States v. Reaume                       No. 02-1112

adequate notice. Second, Reaume maintains that even if the             This Court reviews de novo whether a restitution order is
district court had ruled properly in permitting the Government       permitted under the law. United States v. Dunigan, 163 F.3d
to advance its new theory, the basis for holding Reaume              979, 981 (6th Cir. 1999). Generally, if the restitution order is
responsible for more than $200,000 in losses was too                 legally permissible, the amount ordered is then reviewed for
speculative in nature to satisfy the Government’s burden of          an abuse of discretion. Id. However, here, because Reaume
proving Reaume’s responsibility for that sum by a                    did not object to the restitution order at his sentencing, the
preponderance of the evidence.                                       sentencing decision is reviewed for plain error. See United
                                                                     States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). To
   Reaume’s contention that the district court erred in              establish plain error, a defendant must show: (1) that an error
permitting the Government to change theories between                 occurred in the district court; (2) that the error was plain, i.e.,
sentencing hearings is without merit. The rationale on which         obvious or clear; (3) that the error affected substantial rights
the amount of losses was calculated was perfectly reasonable,        of the defendant; and (4) that this adverse impact seriously
and Reaume received notice of this change in position when           affected the fairness, integrity, or public reputation of the
a copy of the Government’s second sentencing memorandum              judicial proceedings. Id.
was sent to him. There was no error in the district court’s
decision to permit the Government to proceed on its new                 The parties agree that a restitution order here is legally
theory regarding relevant conduct.                                   permissible pursuant to the Victim and Witness Protection
                                                                     Act (“VWPA”). 18 U.S.C. § 3663. Accordingly, the only
   Similarly, Reaume’s argument that the district court erred        issue before this Court with regard to the restitution order is
in finding him responsible for over $200,000 in losses is also       whether the district court committed plain error in ordering
without merit. The district court’s findings with respect to         restitution in the amount of $95,649.26.
relevant conduct are only disturbed if clearly erroneous,
United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996),           At Reaume’s sentencing, the district court made no
and need only be based on the preponderance of the evidence,         reference to Reaume’s ability to pay the restitution order in
United States v. Meacham, 27 F.3d 214, 216 (6th Cir. 1994).          full. In determining the amount of restitution that should be
The evidence brought forth by the Government to substantiate         ordered, a sentencing court is required to consider the factors
the relevant conduct is sufficient to support the district court’s   listed in 18 U.S.C. § 3664(a). Dunigan, 163 F.3d at 981. The
findings.                                                            § 3664(a) factors include the economic circumstances of the
                                                                     defendant. The Government argues that all of the information
D. Order of Restitution                                              relevant to the restitution order was contained in the
                                                                     Presentence Investigation Report.
  The district court ordered Reaume to pay restitution in the
amount of $95,649.26. Reaume was ordered to “pay any                   While it is true that “a district court must have, at a
restitution obligations still outstanding according to a monthly     minimum, some indication that a defendant will be able to
schedule recommended by the probation department and                 pay the amount of restitution ordered in order to comply with
approved by [the district] court.” Reaume argues that the            18 U.S.C. § 3664(a),” Dunigan, 163 F.3d at 982, this Court
district court erred in imposing this amount of restitution          has also held that “[s]pecific findings in the imposition of
without considering his ability to pay.                              restitution are not required.”            United States v.
                                                                     Jackson-Randolph, 282 F.3d 369, 386 (6th Cir. 2002). Given
No. 02-1112                    United States v. Reaume       13

the findings in the Presentence Investigation Report that
Reaume has an Associate Degree in Applied Science, lives
with his parents when in the United States, and has only a
very small amount of debt, the amount of restitution ordered
by the district court is not clear error. Moreover, the district
court did not order that the restitution be paid during any
particular period of time.
  A restitution order is permissible even if the defendant
lacks the present ability to pay. United States v. Faasse, 265
F.3d 475, 494 (6th Cir. 2001) (en banc). The burden is on the
defendant to demonstrate that a restitution order far exceeds
his resources and earning potential, United States v. Adams,
214 F.3d 724, 730 (6th Cir. 2000), and Reaume has not met
this burden here. While it may have been preferable for the
district court to have engaged in a more explicit analysis of
Reaume’s ability to pay this restitution amount, it cannot be
said that the failure to do so in this instance meets the
requirements of the plain error standard.
                              III.
  For the foregoing reasons, we AFFIRM the judgment of
the district court.
