     Case: 11-51204       Document: 00512271820         Page: 1     Date Filed: 06/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 12, 2013

                                       No. 11-51204                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RANDALL GLEN GOODALE, JR., also known as Randall Glen Goodale,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CR-409-1


Before STEWART, Chief Judge, and BARKSDALE and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Following a brief bench trial, Randall Glen Goodale, Jr., was convicted of:
executing a scheme either to defraud Wells Fargo Bank or to obtain moneys or
other property under the custody or control of that bank by means of false and
fraudulent representation, in violation of 18 U.S.C. § 1344; and aggravated
identify theft, in violation of 18 U.S.C. § 1028A(a)(1).               Goodale primarily


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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contends: there was insufficient evidence to prove he possessed the intent to
defraud Wells Fargo, in violation of § 1344(1), through a scheme that placed it
at a risk of financial loss or civil liability. AFFIRMED.
                                        I.
      The underlying facts were stipulated in large part at Goodale’s bench trial.
At its conclusion, the court verbally rendered its findings of fact and conclusions
of law. Some of those findings of fact follow.
      On 15 July 2009, a Wells Fargo checkbook and Texas driver’s license, each
belonging to David Rumple, were stolen from his vehicle in San Antonio, Texas.
Rumple had closed his corresponding checking account, however, in October
2008. Between 15 and 17 July 2009, Goodale used the stolen items to negotiate
fraudulently seven checks to La Vernia One Stop, a gasoline station located in
La Vernia, Texas. Goodale used the checks to obtain goods, cash, gasoline, and
other things of value, totaling $460.40.
      La Vernia One Stop presented five of the seven checks; Wells Fargo
returned them on grounds that either the account could not be located or it was
closed. The other two checks were not presented; they had been negotiated by
Goodale the day of his arrest.
      A 25 May 2011 indictment charged Goodale with:               two counts of
“knowingly execut[ing] and attempt[ing] to execute a scheme and artifice to
defraud and to obtain the moneys, funds, . . . or other property owned by, or
under the custody or control of Wells Fargo Bank, insured by the Federal
Deposit Insurance Corporation, by means of false and fraudulent pretenses,
representations, and promises”, with each count charging violation of 18 U.S.C.
§ 1344(1) and (2); and one count of “knowingly possess[ing] and us[ing], without
lawful authority, a means of identification of another person, to wit: the person’s
drivers’ license number, during and in relation to” the charged bank fraud, in
violation of 18 U.S.C. § 1028A(a)(1).

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      At the 29 August 2011 bench trial, Government exhibits and stipulations
were admitted, followed by the testimony of two Government witnesses. Rumple
testified to, inter alia: his checkbook and Texas driver’s license being stolen from
his vehicle in July 2009; having closed that checking account in October 2008;
and not having authorized anyone to use his checking account or driver’s license.
Janie Valdez, a Wells Fargo market-support consultant, testified concerning the
risk of loss or civil liability Wells Fargo is exposed to when checks, legitimate
and not legitimate, are presented. Goodale neither testified nor otherwise
presented evidence.     At the end of trial, pursuant to findings of fact and
conclusions of law from the bench, Goodale was convicted on all counts.
      Included in the findings of fact was that “[t]he evidence . . . by the Wells
Fargo representative [Valdez] establishes that there was a potential risk of loss
to the bank by” Goodale’s negotiating the checks. In its conclusions of law, the
court stated, inter alia, that Goodale “was unaware of whether the checking
account was closed, not closed, had sufficient funds, had insufficient funds.
Nevertheless, his intent was to have the check[s] presented ultimately to a bank
for payment and he would receive items in return for that”. Noting our court has
ruled that “the knowing cashing of bad checks demonstrate[s] an intent to
defraud a bank, because this behavior expose[s] the bank to a significant risk of
financial loss”, and because testimony established it was possible the checks
would have been paid on a closed account, the court concluded, “beyond a
reasonable doubt, that [Goodale] committed the crime of bank fraud in
violation of 18 U.S.C. [§] 1344”. (Emphasis added.) “[W]ith that finding”, the
court concluded it was “uncontested that the identity theft occurred”.
      Goodale was sentenced on 30 November 2011 to, inter alia, 39 months’
imprisonment.




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                                         II.
      Goodale challenges whether the evidence was sufficient to prove he:
possessed the necessary intent to defraud Wells Fargo; and placed the bank at
a risk of financial loss or civil liability. The aggravated identify-theft conviction
having been predicated on the bank-fraud convictions, Goodale also challenges
the former conviction, but only to the extent the latter convictions are vacated.
      A district court’s findings of fact following a bench trial are reviewed for
clear error; its conclusions of law, de novo. E.g., United States v. Wallace, 389
F.3d 483, 485 (5th Cir. 2004). The clear-error standard is highly deferential, e.g.,
United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011); if the challenged
findings are “plausible in [the] light of the record as a whole”, there is no clear
error, United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(internal quotation marks omitted). Re-stated, a finding of fact is clearly
erroneous “only if a review of all the evidence leaves us with the definite and
firm conviction that a mistake has been committed”. Rodriguez, 630 F.3d at 380
(internal quotation marks and citation omitted).
      Our review of the district court’s finding Goodale guilty at his bench trial
is to determine whether the finding is supported by “any substantial evidence”.
E.g., United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000) (internal
quotation marks and citation omitted). “Evidence is sufficient to support a
conviction if any rational trier of fact could have found that the evidence
established guilt beyond a reasonable doubt.” Id. In reviewing this bench-trial
verdict, “[i]t is not our function to make credibility choices or to pass upon the
weight of the evidence”. United States v. Rosas-Fuentes, 970 F.2d 1379, 1381
(5th Cir. 1992) (citation and alterations omitted). The evidence is examined as
a whole and construed in the light most favorable to the Government. Ceballos-
Torres, 218 F.3d at 411.



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      This any-substantial-evidence standard applies despite Goodale’s not
moving for judgment of acquittal when the Government rested. See Rosas-
Fuentes, 970 F.2d at 1381; Hall v. United States, 286 F.2d 676, 677 (5th Cir.
1960) (no need for formal motion for judgment of acquittal in criminal case tried
to court upon defendant’s plea of not guilty because that plea “asks the court for
judgment of acquittal, and a motion to the same end is not necessary”).
                                        A.
      Proscribed by the two subsections of 18 U.S.C. § 1344 are the knowing or
attempted execution of “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”. For
§ 1344(1), “[t]he requisite intent to defraud is established if the defendant acted
knowingly and with the specific intent to deceive, ordinarily for the purpose of
causing some financial loss to another or bringing about some financial gain to
himself”. United States v. Saks, 964 F.2d 1514, 1518 (5th Cir. 1992); accord
United States v. Morganfield, 501 F.3d 453, 464 (5th Cir. 2007) (concerning
§ 1344(2)).
      Each bank-fraud count in Goodale’s indictment charged both means of
violating the statute, allowing the Government to prove, beyond a reasonable
doubt, federal bank fraud under either subsection. In rendering its findings of
fact and conclusions of law, however, the district court did not clarify which
prong of the statute Goodale had violated.
      For example, as noted supra, the court discussed in its conclusions of law
that Goodale had the requisite intent to defraud Wells Fargo, which concerns
the requirements for conviction under § 1344(1). On the other hand, the court
also ruled:



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             Bank fraud under Section 1344 requires that the
             [G]overnment demonstrate the defendant placed the
             financial institution at risk of civil liability or financial
             loss. It is not necessary, however, for the [G]overnment
             to prove that the banks actually suffered civil liability
             or financial loss in order to obtain a bank fraud
             conviction. The evidence presented by the Wells Fargo
             representative establishes that there was a potential
             risk of loss to the bank by these transactions.
      In this instance, the court is generally discussing § 1344, without reference
to either of its subsections.
      It is well established that, in the absence of actual loss, our court requires
the Government to prove the bank was subject to a risk of loss or civil liability
for a conviction pursuant to 18 U.S.C. § 1344. E.g., United States v. Lemons, 941
F.2d 309, 315-16 (5th Cir. 1991). (Some of our sister courts do not read § 1344
to require proof of such risk of loss. For example, see United States v. Warshak,
631 F.3d 266, 313 (6th Cir. 2010) (citing United States v. Everett, 270 F.3d 989,
991) (6th Cir. 2001) (“[T]o have the specific intent required for bank fraud the
defendant need not have put the bank at risk of loss”.)) and United States v. De
La Mata, 266 F.3d 1275, 1298 (11th Cir. 2001) (risk of loss only one means of
establishing intent to defraud).)
      This risk-of-loss element is present when the Government seeks conviction
under either subsection of § 1344. As our court has acknowledged, “the terms
‘scheme’ and ‘artifice’ are defined to include, among other things, any fraudulent
pretenses or misrepresentations intended to deceive others to obtain something
of value, such as money, from the institution to be deceived”. Lemons, 941 F.2d
at 314-15 (quoting United States v. McClelland, 868 F.2d 704, 709 (5th Cir.
1989)). In Lemons, the jury was instructed on only subsection one of § 1344; yet
our court understood that to allow conviction if the jury found defendant sought
to fraudulently obtain the bank’s property. Id. Similarly, in Morganfield, while


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                                   No. 11-51204

purporting to discuss only subsection two of § 1344, our court discussed the need
for a “requisite intent to defraud”—language that tracks subsection one. 501
F.3d at 464 (emphasis added).
      Moreover, our court has referred to risk of loss as an element of § 1344,
without reference to either subsection. Id. at 465-66. As noted, it has also
acknowledged that risk of loss applies to both subsections. Id. at 467 n.53
(discussing risk of loss in context of subsection two, while citing opinion finding
sufficient risk of loss under subsection one). Accordingly, absent actual loss, the
Government must prove a risk of loss or civil liability to the financial institution
under either subsection of § 1344.
      In convicting Goodale of bank fraud, the district court relied primarily on
our recent decision in Morganfield. There, Morganfield and others engaged in
a scheme using false personal identifications to open checking accounts in the
names of nonexistent businesses; they wrote checks on those accounts to
nonexistent persons, knowing the accounts had insufficient funds to cover the
checks; and they used the false identifications to cash the checks at grocery and
convenience stores. 501 F.3d at 456-57. Morganfield was convicted for, inter
alia, two counts of bank fraud under § 1344(2). Id. at 456. Like Goodale,
Morganfield’s challenge included insufficient evidence of: specific intent to
defraud; “and that any financial institution faced a risk of loss or civil liability”.
Id. at 457.
      Concerning Morganfield’s specific-intent challenge, our court held the
bank need not “be the central target of the alleged scheme for there to be bank
fraud liability. Rather, in such cases where the drawer has simply overdrawn
the account, the [G]overnment must present other facts evincing an intent to
victimize the financial institution”.      Id. at 465 (internal quotation marks
omitted). Because the scheme was “not a simple insufficient check funds



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scheme”, the “other facts evincing an intent to victimize the financial
institution”, id., were sufficient for a jury to rationally infer intent, id. at 461.
      Concerning Morganfield’s risk-of-loss challenge, where, based on witness
testimony, it is possible a bank may honor a check when the account has
insufficient funds on the assumption the customer will later deposit funds to
cover the difference, our court held such a “possibility creates a sufficient risk of
loss to the financial institution” to support a bank-fraud conviction under 18
U.S.C. § 1344. Id. at 466-67. That was premised on our court’s holding “the
[G]overnment need not prove a substantial likelihood of risk of loss to support
the convictions”. Id. at 465-66 (quotation marks omitted) (emphasis added).
      Goodale claims the district court’s findings of fact regarding risk of loss are
clearly erroneous. As Morganfield states, however, there need not be actual loss
or liability by the bank, or even a substantial risk of loss or liability, to support
a bank-fraud conviction. Valdez testified to the presence of a risk of loss or civil
liability, through human or computer error, when a check, legitimate or not, is
presented to the bank. For example, her cross-examination testimony provides
in part:
             [Goodale’s counsel]: In [the Government’s] questioning,
             [it] asked you about risk of loss to the bank or civil
             liability. On an account that had already been closed,
             in this case, by Mr. Rumple, if somehow through a
             computer glitch or human error or whatever that check
             was paid, that would not create any liability from the
             bank to Mr. Rumple, would it?
             [Valdez]: If it was paid, would there be a liability to Mr.
             Rumple? I don’t know what that liability might be,
             without a whole bunch of extra research involved.
             [Goodale’s counsel]: Let me ask you this. If it was paid,
             it wouldn’t be paid out of Mr. Rumple’s account,
             because he doesn’t have one anymore, correct?
             [Valdez]: Correct.


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             [Goodale’s counsel]: So it would have to come out of the
             bank’s ledger?
             [Valdez]: Correct.
(Emphasis added.) In short, the court’s risk-of-loss finding was not clearly
erroneous.
      In addition to Morganfield, persuasive authority is provided by United
States v. Brandon, 298 F.3d 307 (4th Cir. 2002), which has a factual scenario
substantially similar to Goodale’s. Brandon was charged with federal bank
fraud for engaging in a scheme to defraud several federally-insured banks by
stealing blank checks from six individuals, procuring picture identifications
bearing each account holder’s name, forging the account holders’ signatures, and
negotiating the checks to purchase items from merchants in Maryland and
Virginia. Id. at 309. After pleading guilty to six counts of bank fraud, Brandon
challenged on appeal the denial of her motion to dismiss the indictment,
contending the facts alleged, even if true, were insufficient for bank fraud under
18 U.S.C. § 1344. Id. at 309-10.
      Brandon’s challenge to the indictment presented a contention analogous
to Goodale’s: that the facts did not support federal bank fraud because the
scheme involved negotiating stolen checks to merchants, not presenting them
directly to banks; therefore, the fraud victims were the retail merchants, not the
banks. Id. at 310. In affirming the denial of Brandon’s motion to dismiss the
indictment, the Fourth Circuit found the facts presented in the indictment
“clearly inform” that Brandon’s conduct, if proven, would constitute a scheme to
defraud; where she negotiated “forged instruments to merchants who exchanged
goods for the funds held by the drawee bank[,] . . . an inevitable part of [that]
process is the eventual presentation of the stolen and forged checks to the
drawee banks, which exposes the banks to a potential risk of loss”. Id. at 312.



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       The Fourth Circuit in Brandon cited favorably to a Second Circuit opinion
which reached the same conclusion in a larger-scale bank-fraud scheme. The
Fourth Circuit opined: “The jury could infer that inherent in [defendant’s]
transactions with [the merchant] was the risk that the forged checks would be
presented to a bank for payment. . . . [Defendant] is not relieved of criminal
liability for bank fraud because his primary victim was [not a bank]”. Id.
(quoting United States v. Crisci, 273 F.3d 235, 240 (2d Cir. 2001)).
       An important distinction in Brandon and Crisci is the legitimacy of the
accounts. The accounts in those cases were not closed. Accordingly, Goodale
contends that Rumple’s account being closed “eliminated any cognizable risk of
loss” to Wells Fargo from Goodale’s conduct. As discussed above, however, at
the bench trial, the Government elicited testimony from Wells Fargo market-
support consultant Valdez that human and computer error, albeit inherent in
the presentation of legitimate checks as well as illegitimate checks, exposed
Wells Fargo to possible risk of loss, even where checks were drawn on a closed
account. The court relied in part on this testimony to convict Goodale. As also
discussed, the Government “need not prove a substantial likelihood of risk of loss
to   support   [bank fraud] convictions”.    Morganfield, 501 F.3d at 465-66.
(Goodale’s challenging lack of intent due to Rumple’s account’s being closed is
inconsistent with the evidence: Goodale did not know the account was closed.
At the bench trial, his counsel agreed in closing argument that Goodale was
unaware of the account’s status in that regard. As Goodale’s counsel conceded
at oral argument here, this constituted an admission.)
       Brandon held “the presentation of a forged or altered instrument is
evidence, in and of itself, of an intent to defraud a bank”. Brandon, 298 F.3d at
313 (emphasis added) (citing United States v. Laljie, 184 F.3d 180, 190-91 (2d
Cir. 1999)). Our court has cited approvingly to this holding. See Morganfield,
501 F.3d at 465 n.48. Goodale’s negotiating forged checks to La Vernia One

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Stop, in and of itself, established his intent to defraud Wells Fargo, sufficient to
uphold his § 1344 bank-fraud conviction.
                                        B.
      Goodale’s aggravated identify-theft conviction was under 18 U.S.C.
§ 1028A(a)(1), which prohibits, inter alia, the knowing use of another person’s
identification, without lawful authority, during and in relation to the commission
of federal bank fraud. Goodale concedes that, if we hold sufficient evidence
supports his bank-fraud convictions, that compels our upholding the identity-
theft conviction as well. Accordingly, because we uphold the former convictions,
the latter conviction is also upheld.
                                        III.
      For the foregoing reasons, the judgment is AFFIRMED.




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