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."
