US v. Shaw, No. 13-50136 (3-29-18)(Schroeder w/Nguyen & Hurwitz).

On remand from the Supremes, the 9th affirmed a bank fraud conviction.  The appellant failed to challenge the jury instruction's disjunctive form. Here, the defendant created a scheme that drew funds in the account of a bank depositor and account holder.   The siphoning occurred using PayPal. The bank suffered no losses; PayPal and the depositor did.  The Supremes and the 9th agree that a scheme to take money from a depositor's account violates the statute, and the bank need not have suffered a loss.  The remand came however over the jury instruction.  The instruction read "deceive, cheat OR deprive." The statute, under 18 USC 1344(1), reads "AND." Does this get the defendant off the hook?  No, because the defendant failed to challenge the "disjunctive" language of the instruction (he challenged the theft from the bank). Statutory interpretation is not the disjunctive language.  As a result, the defendant had not properly objected.  Moreover, even if he had objected, any error would be harmless.

Still, this is an issue that the Supremes identified, and the 9th sidesteps.  Keep this in mind for 1344 bank fraud prosecutions.

A hard fought appeal by Jim Locklin, FPD Cal Central (Los Angeles).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/27/13-50136.pdf