United States v. Loughrin

• Citation: 710 F.3d 1111
• Decision Date: 08 March 2013
• Docket Number: No. 11–4158.,11–4158.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kevin LOUGHRIN, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

710 F.3d 1111

UNITED STATES of America, Plaintiff–Appellee,

v.Kevin LOUGHRIN, Defendant–Appellant.

No. 11–4158.

United States Court of Appeals, Tenth Circuit.

March 8, 2013.

Bretta Pirie, Assistant Federal Public Defender (Kathryn N. Nester, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, with her on the briefs) Office of the Federal Public Defendant, District of Utah, Salt Lake City, UT, for Appellant.

Dave Backman, Assistant United States Attorney (David B. Barlow, United States Attorney, with him on the brief) Office of the United States Attorney, District of Utah, Salt Lake City, UT, for Appellee.

Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Kevin Loughrin was convicted of bank fraud and other charges arising from a check and identity theft scheme. He now appeals his conviction on two grounds: (1) the district court's jury instructions on the bank fraud counts, 18 U.S.C. § 1344(2), were erroneous because they did not contain a requirement that Loughrin intended to defraud a bank; and (2) the delay between his indictment and trial violated his rights under the Speedy Trial Act.

We conclude the district court did not err in applying the requisite elements for bank fraud under § 1344(2) and that the subsection does not require proof that the defendant intended to defraud a bank. We also agree that Loughrin was tried within seventy days as required by the Speedy Trial Act.

Exercising our jurisdiction under 28 U.S.C. § 1291, we reject both of Loughrin's grounds for appeal and AFFIRM.

I. Background

Kevin Loughrin's charges arose from a scheme to steal checks from people's mail. After stealing the checks, he would alter them to make purchases at a local Target store. He would then return those purchases to Target for cash. The scheme came to an end when Loughrin and a codefendant, Theresa Thongsarn, were indicted on six counts of bank fraud, two counts of aggravated identity theft, and one count of possession of stolen mail.

Prior to trial, Loughrin filed a motion for dismissal based on violations of the Speedy Trial Act, which the district court denied. At trial Loughrin proposed that the jury instruction for bank fraud, 18 U.S.C. § 1344(2), specifically require the jury to find that he had an intent to defraud a financial institution in order to convict. The court, stating that the statute and Tenth Circuit law did not require such a finding, rejected Loughrin's proposed instructions. Loughrin was convicted on all six bank fraud counts, as well as on counts for stolen mail and aggravated identity theft. The court sentenced Loughrin to thirty-six months' imprisonment.

II. Analysis

Loughrin contends the district court erred in two ways: (1) the jury instructions on the bank fraud counts, 18 U.S.C. § 1344(2), failed to include a requirement that he intended to defraud a bank or financial institution; and (2) his rights under the Speedy Trial Act were violated due to unexcused delay between his indictment and trial. We disagree with both arguments.

A. Jury Instructions

Loughrin first argues the district court erred in refusing to instruct the jury that a conviction under § 1344(2) requires proof that he intended to defraud the banks on which the checks had been drawn. If the district court erred, Loughrin contends, there was insufficient evidence to sustain a conviction under § 1344(2). We review “a district court's refusal to give a requested instruction for abuse of discretion.” United States v. Crockett, 435 F.3d 1305, 1314 (10th Cir.2006). But we review the jury instructions de novo to determine “whether, as a whole, they accurately state the governing law.” Id.

The Bank Fraud statute prohibits two types of conduct: “knowingly execut[ing], or attempt[ing] 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.” 18 U.S.C. § 1344. Though “largely overlapping, a scheme to defraud, and a scheme to obtain money by means of false or fraudulent pretenses, representations, or promises, are separate offenses.” United States v. Swanson, 360 F.3d 1155, 1162 (10th Cir.2004) (quoting United States v. Cronic, 900 F.2d 1511, 1513 (10th Cir.1990)).

The two provisions have similar elements, differing only by the type of scheme each one targets. Our case law requires the government to prove: “(1) that the defendant knowingly executed or attempted to execute a scheme (i) to defraud [§ 1344(1) ] or (ii) to obtain property by means of false or fraudulent pretenses, representations or promises [§ 1344(2) ]; (2) that defendant did so with the intent to defraud; and (3) that the financial institution was then insured by the Federal Deposit Insurance Corporation.” United States v. Rackley, 986 F.2d 1357, 1360–61 (10th Cir.1993) (emphasis in original).

The differences in the prohibited conduct for each offense extend to the type of proof the government needs to offer. To establish that a bank was defrauded under § 1344(1), the government need not prove that the bank “suffered any monetary loss, only that the bank was put at potential risk by the scheme to defraud.” United States v. Young, 952 F.2d 1252, 1257 (10th Cir.1991). Yet a conviction under § 1344(2) requires no proof that a bank was “at risk” because there is no explicit requirement that a particular bank be defrauded. United States v. Sapp, 53 F.3d 1100, 1103 (10th Cir.1995). As we explained in Sapp, the reason for this difference stems from the plain language of the statute: “[C]lause (1) focuses on the conduct as it affects the financial institution, while clause (2) emphasizes the conduct of the defendant.” Id. Indeed, the latter “extends to any knowingly false representation” by the defendant. Id. at 1102 (quotation omitted).

Loughrin contends that a conviction under subsection § 1344(2), like one under § 1344(1), requires proof that he intended to defraud a bank. He argues that our decision in Rackley “suggests that the scheme to defraud and the false pretenses must equally be directed at a financial institution.” Aplt. Br. at 18. But Rackley's omission of “financial institution” from its listing of the elements of § 1344(1) does not change the fact that the text of § 1344(1) itself requires that the scheme be to “defraud a financial institution.” 18 U.S.C. § 1344 (emphasis added). Under § 1344(1), the scheme to defraud must necessarily be directed at a financial institution or bank—there is no way to defraud a bank without intentionally directing the fraud, in some way, at a bank. Yet under § 1344(2), there is no requirement in either Rackley or the text of § 1344(2) that the fraud must be intentionally directed at a bank. Unlike clause (1), clause (2) does not explicitly state who must be the object of the scheme. And Rackley indicates that only an intent to defraud someone is required. 986 F.2d at 1360–61. Thus, under our precedent, an individual can violate § 1344(2) by obtaining money from a bank while intending to defraud someone else.

The district court's refusal to give Loughrin's proposed instruction to the jury is also correct in light of Sapp's holding that § 1344(2) requires no proof that the bank was “at risk” of suffering financial loss. Loughrin's interpretation would effectively render Sapp's holding superfluous: there is only a small subset of cases where a defendant would intend to defraud a bank and yet the bank would never be at any risk—i.e., incompetent attempts. Proving risk of loss to a bank is sensible when the target of the fraud must be a bank; yet when no risk of loss is required, it would be incongruous to still require that the target be a bank. Accordingly, the district court did not err in refusing to instruct the jury that an intent to defraud the bank was required. And the government satisfied the fraudulent intent requirement of § 1344(2) with proof that Loughrin intended to defraud Target rather than a bank.

Loughrin counters that our interpretation of § 1344(2) creates bank fraud liability for any fraudulent scheme as long as a bank's assets are somehow involved, an outcome allegedly contrary to congressional intent and in conflict with the decisions of several circuits.¹ We recognize that our interpretation of § 1344(2) may cast a wide net for bank fraud liability, but it is dictated by the plain language of the statute and our prior precedent. We are bound by those cases “absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” United States v. Meyers, 200 F.3d 715, 720 (10th Cir.2000).

In sum, we reject Loughrin's invitation to revisit the elements of bank fraud as set forth in our cases. The fact that Loughrin fraudulently obtained funds using bank checks, even though the bank was not at risk of loss, is sufficient to support his conviction for bank fraud.

B. Speedy Trial Act

Loughrin next argues that the district court violated his rights under the Speedy Trial Act (STA). We review a district court's denial of a motion to dismiss for violation of the Act for an abuse of discretion. United States v. Larson, 627 F.3d 1198, 1203 (10th Cir.2010). The same standard applies when reviewing grants of an ends-of-justice continuance. United States v. Toombs, 574 F.3d 1262, 1268 (10th Cir.2009). At the same time, we review the district court's compliance with the Act de novo and its findings of fact for clear error. Id.

Before discussing the legal framework applicable to Loughrin's Speedy Trial Act claims, we provide the necessary factual background.

1. Background

Loughrin and his codefendant, Thongsarn, made their first appearance in federal court on June 8, 2010. No motions were filed after the indictment, other than a pro forma discovery request, until July 29, when Loughrin...