In United States v. Munksgard, No. 16-17654 (Jan. 30, 2019) (Tjoflat, Marcus, Newsom), the Court affirmed the defendant's bank fraud and aggravated identity theft convictions.
As to the bank fraud conviction, the defendant argued that there was insufficient evidence because the government failed to prove that he knew that the bank was FDIC-insured at the time he submitted fraudulent loan applications. The Court recounted its history of annoyance at the government in previous cases for doing a poor job at proving a bank's insured status. The Court emphasized that contemporaneous evidence of insurance was best, that prior and subsequent insurance was second best, but that prior or subsequent insurance can be adequate. In this case, the government submitted sufficient, though hardly overwhelming, evidence because it introduced a certificate of FDIC insurance at the time the bank was chartered, the bank vice president testified that the bank was subsequently insured at the time of trial, and his testimony indicated that the insurance had not lapsed at the relevant time.
As to the aggravated ID theft conviction, the Court concluded that, when the defendant signed another person's name to the fraudulent contract submitted in support of the loan application, he "used" a "means of identification" within the meaning of 1028A. Emphasizing the plain statutory language and context, the Court rejected the defendant's argument that, because he only signed another person's name without attempting to impersonate that person or harming him, he did not "use" that identification.
Judge Tjoflat dissented. In a lengthy opinion, he explained that he would have vacated the bank fraud conviction for insufficient evidence of FDIC-insurance status. He concluded: "The majority goes to great lengths to bail the government out. Nothing in our precedent compels this, and the Constitution doesn't allow it."