     Case: 14-60554      Document: 00513177566        Page: 1     Date Filed: 09/01/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                     No. 14-60554                       United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
UNITED STATES OF AMERICA,                                              September 1, 2015
                                                                          Lyle W. Cayce
              Plaintiff - Appellee                                             Clerk

v.

GREGORY BERNARD GRIFFIN, JR., also known as Johnny Jenkins,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi


Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge.
      Gregory Bernard Griffin was convicted of bank fraud, wire fraud,
aggravated identity theft, money laundering, and conspiracy to commit money
laundering. The indictment charged that he defrauded two federally insured
banks. One of those banks, Bank of America Corporation, 1 was indisputably
not involved in his scheme, and at trial the government showed only that the
other bank, Magnolia Federal Credit Union (“Magnolia Federal”), was
defrauded. The district court presented the jury with a redacted indictment



      1Although the indictment refers only to “Bank of America,” context indicates that the
government intended to refer to Bank of America Corporation.
     Case: 14-60554      Document: 00513177566        Page: 2    Date Filed: 09/01/2015



                                     No. 14-60554
and instructed the jury to consider only whether Magnolia Federal, the bank
actually involved in the case, was defrauded. Griffin argues that by doing so,
the district court constructively amended the indictment. He also argues that
Magnolia Federal was not defrauded and, as a result, the district court lacked
jurisdiction. For the reasons that follow, we AFFIRM.
                                            I.
      In 2013, Griffin executed a fraudulent scheme involving identity theft,
bank fraud, wire fraud, and money laundering. First, Griffin stole the Social
Security number and date of birth of someone he never met, a Mississippi
native named Johnny Jenkins. Griffin then opened a bank account under
Jenkins’s name, using the stolen information and a money order payable to
Jenkins, at Magnolia Federal. 2 Next, Griffin submitted an authorization form
and a counterfeit void check purportedly on behalf of a hotel—Courtyard by
Marriott Jackson—to Bank of America Merchant Services LLC, a credit card
processor. That form directed Bank of America Merchant Services to deposit
the proceeds from the credit card payments received by the hotel into the
Jenkins account at Magnolia Federal. Previously, those payments went into
Courtyard’s Wells Fargo account. In total, Griffin managed to divert about
$193,000 in credit card payments made to Courtyard into the Jenkins account.
Using his Magnolia Federal debit card, checks, and wire transfers, he spent
some of those funds.
      Griffin’s scheme quickly unraveled. After Griffin wrote a $57,900 check
on the Jenkins account to his sister, and declined to appear in person at the
bank to verify the check, an official at Magnolia Federal became suspicious and
refused to pay the check. And when Interstate Hotel and Resorts (Courtyard


      2 Griffin’s scheme was discovered in part because he put his own phone number on the
application, and listed Jenkins’s occupation as a heavy machine operator at MMG Home
Improvement, Inc., an entity for which Griffin was the sole officer.
                                            2
     Case: 14-60554      Document: 00513177566        Page: 3    Date Filed: 09/01/2015



                                     No. 14-60554
by Marriott Jackson’s parent company) discovered the missing credit card
payments, it contacted the Secret Service, which soon linked Griffin to the
scheme.
      A grand jury handed down a 17-count indictment, charging Griffin with
bank fraud, wire fraud, aggravated identity theft, money laundering, and
conspiracy to commit money laundering. 3 At the time the grand jury charged
Griffin, the government held the mistaken belief that Griffin submitted the
counterfeit authorization and void check to Bank of America Corporation—an
entity distinct from Bank of America Merchant Services 4—and that, before
Griffin’s scheme, credit card payments to Courtyard by Marriott were
deposited in an account at Bank of America Corporation rather than Wells
Fargo. As a result, the indictment referred to Bank of America Corporation and
charged that Griffin “knowingly devised and executed a scheme and artifice to
obtain funds under the custody or control of Bank of America and Magnolia
Federal Credit Union,” and to direct Bank of America Corporation to reroute
the funds to the Jenkins account. In other words, the indictment charged that
Griffin defrauded two federally insured banks, one of which was not involved
in Griffin’s scheme.
      At some point, Griffin discovered this error. So after jury selection but
before the jury was sworn, Griffin moved to preclude the government from
referring to the not-involved-in-the-case Bank of America Corporation. He also
moved to dismiss the case for lack of subject-matter jurisdiction, arguing that
Magnolia Federal was the only federally insured entity in the indictment
involved in the case and that Magnolia Federal was not defrauded. And
because the other counts in the indictment relied on the bank fraud counts—


      3 Two superseding indictments contained the same charges.
      4 Bank of America Corporation is the federally insured bank holding company, while
Bank of America Merchant Services is a credit card processor and is not federally insured.
                                            3
    Case: 14-60554    Document: 00513177566    Page: 4   Date Filed: 09/01/2015



                                No. 14-60554
for example, the counts of identity theft in furtherance of bank fraud—they
would fall out of the case alongside the bank fraud counts.
      Rather than re-indicting Griffin, the government conceded the motion to
preclude evidence regarding Bank of America Corporation. But the
government maintained that Magnolia Federal was in fact defrauded and
argued that, because the indictment had so charged, the district court had
jurisdiction.
      During a two-day trial, the government limited its evidence to proof that
Magnolia Federal, not Bank of America Corporation, was defrauded. Griffin
moved for acquittal, challenging the sufficiency of the evidence that Magnolia
Federal was defrauded. The district court denied the motion. The district court
then redacted from the indictment any references to Bank of America as a
financial institution and any references to Bank of America as a victim in the
bank fraud counts. The district court also instructed the jury that the Bank of
America entity involved in the case (Bank of America Merchant Services) was
not federally insured and thus its involvement could not support the bank
fraud charges.
      The jury convicted Griffin on all 17 counts. He now appeals.
                                      II.
      Griffin argues that by scrubbing references to Bank of America from the
indictment presented to the jury, the district court constructively amended the
indictment and thereby violated Griffin’s Fifth Amendment right to a grand
jury indictment.
      “[A]fter an indictment has been returned its charges may not be
broadened through amendment except by the grand jury itself.” Stirone v.
United States, 361 U.S. 212, 215-16 (1960). But not all changes to an
indictment are impermissible. A “constructive amendment” of the indictment
is reversible error per se—assuming that the defendant preserved his objection
                                      4
    Case: 14-60554      Document: 00513177566       Page: 5    Date Filed: 09/01/2015



                                    No. 14-60554
below 5—while a “variance” is subject to harmless error review. United States
v. Nuñez, 180 F.3d 227, 230-31 (5th Cir. 1999). To be a constructive
amendment, a jury charge must permit the jury “to convict on an alternative
basis permitted by the statute but not charged in the indictment.” United
States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010) (quoting United States v.
Daniels, 252 F.3d 411, 414 (5th Cir. 2001)) (internal quotation marks omitted).
But if “the crime and the elements of the offense that sustain the conviction
are fully and clearly set out in the indictment, the right to a grand jury is not
normally violated by the fact that the indictment alleges more crimes or other
means of committing the same crime.” United States v. Miller, 471 U.S. 130,
136 (1985).
      In other words, the key inquiry is whether the jury charge broadened the
indictment; if it only narrowed the indictment, no constructive amendment
occurred. Nuñez, 180 F.3d at 232-33; see also United States v. Soudan, 812 F.2d
920, 929 (5th Cir. 1986) (“It is a long established principle that after an
indictment has been returned its charges may not be broadened except by the
grand jury itself.”). Thus, “withdraw[ing] a portion of [the indictment] from the
jury’s consideration . . . because of the government’s inability to prove that
part” is not a constructive amendment, “provided the indictment still charges
an offense and the same offense originally contemplated by the indictment as
returned.” United States v. Prior, 546 F.2d 1254, 1257 (5th Cir. 1977); accord
United States v. Hughes, 58 F. App’x 597, at *1 (5th Cir. 2003) (per curiam).
Similarly, eliminating surplusage from the indictment, provided that nothing
is thereby added to the indictment, is not a constructive amendment. E.g.,
Miller, 471 U.S. at 144; United States v. Robles-Vertiz, 155 F.3d 725, 729 (5th



      5 If raised for the first time on appeal, constructive amendment arguments are
reviewed for plain error. United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010).
                                          5
    Case: 14-60554    Document: 00513177566     Page: 6   Date Filed: 09/01/2015



                                 No. 14-60554
Cir. 1998); see also United States v. Adams, 778 F.2d 1117, 1124 n.11 (5th Cir.
1985).
      Here, in redacting the indictment and in charging the jury, the district
court only narrowed the indictment. The indictment charged that Griffin
“knowingly devised and executed a scheme and artifice to obtain funds under
the custody or control of Bank of America [Corporation] and Magnolia Federal
Credit Union by means of materially false and fraudulent pretenses and
representations.” The government proved at trial that Griffin executed a
scheme to obtain funds under Magnolia Federal’s control through fraud. Thus,
Griffin was convicted on a basis charged in the indictment. “[N]either the
evidence at trial nor the jury instructions implied that [Griffin] could be
convicted of anything other than” defrauding Magnolia Federal. Broadnax, 601
F.3d at 343. The government, by virtue of pleading that Griffin defrauded both
Bank of America Corporation and Magnolia Federal—in the same counts—
“was afforded the freedom of proving the elements of the crime in alternative
ways.” United States v. Reasor, 418 F.3d 466, 477 (5th Cir. 2005). In other
words, Griffin’s complaint “is not that the indictment failed to charge the
offense for which he was convicted, but that the indictment charged more than
was necessary.” Miller, 471 U.S. at 140. Thus, because the district court only
narrowed the indictment, no constructive amendment occurred here. The
variance, moreover, did not prejudice Griffin, who knew before trial that the
government would proceed on a theory that only Magnolia Federal was
defrauded.
                                      III.
      Griffin also argues that the district court lacked jurisdiction because the
government did not produce sufficient evidence to show that Magnolia Federal,
the only federally insured bank left in the case, was defrauded.


                                       6
     Case: 14-60554        Document: 00513177566          Page: 7     Date Filed: 09/01/2015



                                        No. 14-60554
       To prove bank fraud, the government must show, among other things,
“that the defendants placed the financial institution at risk of civil liability or
financial loss.” 6 United States v. McCauley, 253 F.3d 815, 820 (5th Cir. 2001).
The government need not “prove a substantial likelihood of risk of loss,”
however. Id. (emphasis added). This court has found evidence of risk of loss to
be sufficient even where the fraudulent scheme was impractical or even
impossible. See United States v. Church, 888 F.2d 20, 24 (5th Cir. 1989)
(holding that evidence was sufficient where defendant issued worthless drafts
against nonexistent bank account); see also United States v. Hooten, 933 F.2d
293, 295 (5th Cir. 1991) (holding that evidence was sufficient where credit
union might have been able to recoup its money under state law).
       Griffin contends that the government did not show that his fraud placed
Magnolia Federal at risk of civil liability or financial loss. This is so, argues
Griffin, because Magnolia Federal suffered no loss and was the transferee
institution, not the transferor institution. 7 But the government need not show


       6  The government points out that the Supreme Court recently cast doubt on the risk-
of-loss requirement in Loughrin v. United States, 134 S. Ct. 2384 (2014). There, the Court
rejected the defendant’s argument that the bank fraud statute requires the government to
prove that the defendant’s scheme created a risk of financial loss to the bank. Id. at 2395 n.9.
The Court explained that “nothing like that element appears in the clause’s text” and that
the statute’s text “appears calculated to avoid entangling courts in technical issues of banking
law about whether the financial institution or, alternatively, a depositor would suffer the loss
from a successful fraud”—the precise issue on which Griffin attempts to engage the court. Id.
But because Loughrin was decided after Griffin was convicted, we do not reach the question
of how Loughrin affects our precedent on this issue. See Janecka v. Cockrell, 301 F.3d 316,
322 n.9 (5th Cir. 2002).
        7 Griffin’s argument that, as the transferee institution, Magnolia Federal could not be

liable is unfounded. In McCauley, this court noted that a transferee bank was “certainly
exposed to a risk of loss because [the defendants] aided in the attempt to withdraw the
fraudulently transferred funds.” 253 F.3d at 820. And Griffin’s reliance on Bradford Trust
Co. of Boston v. Texas American Bank-Houston, 790 F.2d 407 (5th Cir. 1986) for the sweeping
proposition that the transferee institution does not risk civil liability is unpersuasive. There,
the court examined and applied Texas, not Mississippi, law. Even if similar negligence
principles apply here, Bradford Trust held that determining which institution bears a loss is
a fact-specific question that should be determined based on which institution was in the best
position to avoid the loss, which here was likely Magnolia Federal. See id. at 409-10.
                                               7
     Case: 14-60554       Document: 00513177566         Page: 8     Date Filed: 09/01/2015



                                       No. 14-60554
that Magnolia Federal actually suffered any loss or civil liability. McCauley,
253 F.3d at 820. The government elicited testimony from the vice president of
operations at Magnolia Federal that it was put at risk of financial loss because
of Griffin’s fraudulent scheme. And it is easy to imagine a scenario in which
Magnolia Federal risked loss. For example, had Magnolia Federal paid the
$57,900 check to Griffin’s sister before discovering the fraudulent scheme, it
might be accountable for that money because, as the Magnolia Federal official
testified, it was required to return the funds in the Jenkins account that were
transferred from Bank of America Merchant Services. Cf. United States v.
Nelson, 242 F. App’x 164, 173 (5th Cir. 2007) (holding that defendant subjected
transferee bank to risk of loss where defendant had withdrawn fraudulently
deposited funds by the time transferor bank demanded that transferee bank
return those funds); United States v. Khalil, 73 F. App’x 751, 752 (5th Cir.
2003) (per curiam) (holding that government proved risk of loss where
defendant represented himself as another person and opened account for
receipt of fraudulently transferred funds). In sum, the government produced
sufficient evidence that Griffin’s scheme subjected Magnolia Federal, a
federally insured institution, to a risk of loss—a standard satisfied even by a
scheme we viewed as “no more likely to succeed than a request that the Bank
exchange monopoly money for its face value in U.S. currency.” Church, 888
F.2d at 24. Griffin’s scheme was—for a time—successful, and he spent
thousands of fraudulently obtained dollars. As a result, we reject Griffin’s
argument that the district court lacked jurisdiction.




       And Griffin’s reliance on Bradford Trust Co. of Boston v. Texas American Bank-
Houston, 790 F.2d 407 (5th Cir. 1986) for the proposition that the transferee institution does
not risk civil liability is unpersuasive—the court in that case examined and applied Texas,
rather than Mississippi, law.
                                              8
Case: 14-60554   Document: 00513177566   Page: 9   Date Filed: 09/01/2015



                          No. 14-60554
                               IV.
 For the foregoing reasons, we AFFIRM Griffin’s conviction.




                                9
