Update 12/12/16: Today the Supreme Court unanimously ruled against Shaw and held that Section 1 of the bank fraud statute applies to a scheme to obtain deposits held by the bank even if the bank suffers no financial loss. The Court also affirmed that a bank does have a property interest in deposits that it holds, as both sides had basically ended up agreeing during oral argument. The Court sent the case back to the Ninth Circuit to consider the adequacy of the jury instructions, whether that issue was properly preserved, and whether any error in the instructions may have been harmless. See discussion below.
On the first day of arguments this term, the Supreme Court considered the scope of the federal bank fraud statute. The case, Shaw v. United States, involves complex questions concerning the definition of fraud and the nature of property rights. It’s a classic, nerdy white collar battle over statutory interpretation — and it was all completely unnecessary.
The federal bank fraud statute, 18 U.S.C. § 1344, makes it a crime to execute or attempt to execute 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.
Shaw involves the proper interpretation of clause 1 and what it means to defraud a financial institution. In particular, the issue is whether the defendant must intend to obtain property owned by the bank itself and cause the bank financial injury, or whether it is sufficient to show merely that the defendant intended to obtain property being held by the bank, such as customer deposits.
The defendant, Lawrence Shaw, was convicted for executing an elaborate scheme to steal money from a Bank of America checking account held by Stanley Hsu. After wrongfully obtaining Hsu’s bank statements and personal information, Shaw was able to open a PayPal account in Hsu’s name. He then repeatedly transferred money from Hsu’s checking account into the PayPal account and ultimately into other bank accounts that Shaw controlled. Shaw was able to siphon more than $300,000 out of Hsu’s account before Hsu, who was living in Taiwan, detected the losses.
Due to the operation of banking laws, Bank of America actually ended up suffering no financial loss as a result of the scheme. PayPal, which had allowed the phony account to be opened, ended up on the hook for about $100,000 of the loss. Hsu, who had failed to notify Bank of America about the fraud in a timely manner, personally lost nearly $200,000.
PayPal was left holding the bag
Shaw was indicted on multiple counts of executing a scheme to defraud a financial institution under clause 1 of the bank fraud statute. At trial and on appeal, Shaw did not deny his culpability. His defense was basically that the government had charged him under the wrong section of the statute. Clause 1, he argued, requires the government to prove that Shaw was targeting property owned by the bank itself and intended to expose the bank to a financial loss. Shaw maintained that his goal all along was simply to get Hsu’s money. He never had any intent to harm the bank, and the bank in fact did not suffer a loss. Accordingly, Shaw argued, his conduct, although fraudulent, did not constitute a scheme to defraud the bank within the meaning of the statute.
Shaw maintained that his scam should have been charged under clause 2, which covers schemes to obtain property of others in the custody of the bank – in this case, Hsu’s deposits. (This, of course, is not a very sexy or sympathetic defense; Shaw isn’t saying,“I didn’t do it,” he’s saying “Yeah, I did it, but you charged me the wrong way.” But sexy or not, if he prevails his convictions will be reversed. As I’m sure some famous football coach said once, an ugly win is still a win.)
The trial court ruled against Shaw and held the government was not required to prove that Shaw intended the bank to suffer any financial harm or to lose its own property. The judge instructed the jury that a scheme to defraud a financial institution required only proof that the defendant intended to deceive or cheat the bank somehow, but did not require proof that the defendant intended the bank to suffer any loss. The jury convicted Shaw on fourteen counts of bank fraud.
The U.S. Court of Appeals for the Ninth Circuit upheld Shaw’s convictions. The court of appeals reasoned that Congress could not have intended liability for bank fraud to turn on arcane banking rules and regulations about who will bear the loss. Requiring proof of intent to harm the bank itself, the court said, would make prosecuting bank fraud unreasonably difficult. Because the goal of the statute is to protect the integrity of the banking system, any scheme that deceives a bank will suffice, regardless of who ultimately is harmed. The court therefore agreed with the trial judge that clause 1 requires only proof that the defendant intended to deceive the bank, not that he intended to expose the bank itself to any financial loss.
SCOTUS Agrees to Weigh In
The Supreme Court agreed to hear Shaw’s appeal, and the case was argued this past Tuesday. The courts of appeal are divided on the question presented in Shaw. The Ninth Circuit is in the minority; most courts agree with Shaw’s argument that clause 1 of the bank fraud statute requires the government to prove the defendant intended to expose the bank itself to a risk of financial loss.
As I discussed in my last post, to defraud someone usually means to deprive him of money or property through some kind of deception. The law generally draws a distinction between defrauding someone and merely deceiving them; a scheme to defraud typically requires not only a deception but also an intent to injure the victim by depriving them of their property.
Based on this understanding of fraud, the plain wording of the statute supports Shaw’s argument that the scheme must target the bank’s own property. The language “scheme to defraud a financial institution” suggests that the financial institution itself would be the victim of the fraud. This in turn would mean that the scheme to defraud would be designed to deprive the bank of money or property.
But then the question becomes what qualifies as “property.” Although (as the Justices somewhat testily pointed out) the government’s brief was not entirely clear on this point, during oral argument the government confirmed that it agreed a scheme to defraud a bank requires intent to deprive the bank of property and that merely deceiving the bank is not enough. The government disagreed with Shaw, however, about the nature of the property interests protected by the statute, and about whether depriving the bank of a property interest necessarily requires exposing the bank to financial harm.
The government agreed that the Supreme Court has consistently held that a scheme to defraud means a scheme to deprive a victim of money or property, but noted that the Court has always interpreted the term “property” very broadly. Fraud, the government argued, protects both tangible and intangible property, and protects property that is merely in one’s possession as well as property that one owns.
Under this broad definition of property, a scheme to obtain customer deposits is in fact a scheme to deprive the bank of its possessory property interest in those deposits. The same would be true of a scheme to steal other assets being held by a bank, such as customer valuables in a safe deposit box. There is no requirement that the bank actually own the property or suffer a financial loss; the law of fraud requires only that the scheme contemplated depriving the bank of its possessory property right in the assets it holds.
During oral arguments, Shaw’s attorney ultimately agreed with the government that the bank’s possessory interest in customer deposits could qualify as a property interest for purposes of fraud. A line of questions from Justice Kagan honed in on the fact that both sides now seemed to agree about the definition of “property.” Shaw’s attorney maintained, however, that the ordinary understanding of a scheme to defraud meant that to deprive the bank of that property interest required proof of intent that the bank would bear the ultimate financial loss. The Justices seemed more skeptical on this point, with Justice Alito in particular arguing that you could deprive someone of a possessory interest in property without necessarily causing them a personal loss.
But even if the Court ends up agreeing with the government that Shaw’s scheme deprived Bank of America of a property interest in Hsu’s deposits, Shaw may still prevail – because that’s not what the jury instructions said. During oral argument, several of the Justices suggested that the key issue in the case is really the jury instructions. Under questioning from Justice Sotomayor, Shaw’s attorney argued that even if Shaw loses on the interpretation of the bank fraud statute, his convictions must be reversed because the jury instructions were flawed. When the Assistant to the Solicitor General began his argument, the Justices immediately started peppering him with questions about the jury instructions and whether they adequately conveyed the requirements of fraud.
The jury instructions could be read to say that depriving the bank of property was not required, and that it was enough if Shaw merely intended to deceive the bank. The instructions thus arguably failed to distinguish between defrauding and merely deceiving a victim, which is usually critical to the law of fraud. At oral argument, Chief Justice Roberts pointed out that the Ninth Circuit’s opinion also said the bank only needed to be deceived – which seems to endorse the incorrect standard. There was some additional back and forth about the grammatical structure of the instructions, how the jury would have interpreted them, and whether the issue was properly preserved, so how the Court will come out on that question is unclear. But it’s very possible the government could win the legal fight over the definition of bank fraud and still lose the appeal based on flawed jury instructions.
The Implications of Shaw
Although Shaw has implications for banking law and the definition of fraud – and certainly has significant implications for Mr. Shaw — it does not really implicate broader interests about federalism or overcriminalization that are present in many white collar cases. There is no real universe of cases that will no longer be subject to federal prosecution if Shaw wins; Shaw himself admits he could have been prosecuted under clause 2 of the bank fraud statute.
The National Association of Criminal Defense Lawyers filed an amicus brief supporting Shaw on federalism grounds. It argued the bank fraud statute should be construed narrowly in order to limit the scope of federal prosecutions and allow the states to pursue such cases. But this argument doesn’t really hold water. Regardless of the outcome here, cases like Shaw’s will still be subject to federal prosecution, whether through other provisions of the bank fraud statute or through other laws such as mail and wire fraud. There are more than enough arrows in the federal prosecutor’s quiver.
But however it ultimately comes out, Shaw will be instructive in one more area: the importance of sound prosecutorial charging decisions. Clause 2 of the bank fraud law seems clearly to cover Shaw’s conduct. If prosecutors had simply charged Shaw under clause 2 in the first place, this entire issue could have been avoided. Prosecutors would have saved themselves a lot of headaches, time and money that had to be devoted to defending the convictions.
This isn’t a case of over-charging of the type that has caused the Court concern in recent years. There’s no question that Shaw’s conduct was criminal and deserved to be prosecuted. But by charging the case the way they did, prosecutors handed Shaw an issue for appeal that may well be successful. It’s what that football coach would call an unforced error.
Shaw should bring some clarity to the law of bank fraud. But the real lesson of Shaw for prosecutors should be a reminder of the importance of careful charging decisions and selecting the proper statutes when crafting indictments.
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