BARRON, Circuit Judge.
Michael O'Donnell appeals from his conviction on one count under 18 U.S.C. § 1344, the Bank Fraud Act. We affirm.
O'Donnell was indicted under the Bank Fraud Act (the Act) on June 15, 2015. The Act provides:
18 U.S.C. § 1344.
The indictment alleged that O'Donnell violated subsections (1) and (2) of the Act. Specifically, the indictment alleged that he "knowingly executed and attempted to execute a scheme and artifice to defraud Countrywide Bank, FSB, a federally-insured financial institution, and to obtain
Following indictment, O'Donnell waived his right to a jury trial and opted for a bench trial. He also entered into a stipulation. The stipulation set forth the following facts concerning the scheme alleged in the indictment.
While serving as a self-employed loan originator operating through his loan originator business, AMEX Home Mortgage Corporation, O'Donnell completed loan applications and submitted them to mortgage companies on behalf of individuals seeking to purchase or refinance property. In 2007, O'Donnell sought to defraud mortgage lenders in connection with the refinancing of the property in Salem, Massachusetts referenced in the indictment.
The scheme began with O'Donnell's efforts to obtain a mortgage loan on a different property, which was owned by a woman named L.T. In connection with that transaction, O'Donnell submitted a mortgage loan application containing false information about L.T. to Homecomings Financial Network, Inc. O'Donnell also paid, from a bank account controlled by AMEX, approximately $37,000 that L.T. was supposed to put down herself to secure the loan for that property.
After O'Donnell was successful in securing the mortgage loan in L.T.'s name, O'Donnell then sought to secure a second mortgage loan in L.T.'s name, this time for the Salem, Massachusetts property named in the indictment. O'Donnell sought this loan in order to obtain the $37,000 that he had put down to secure the first loan in L.T.'s name.
O'Donnell submitted the application for this second loan to a different entity from the one to which he had submitted the application for the first loan. The stipulation referred to the entity to which O'Donnell submitted the second loan application as follows: "Countrywide, where Countrywide Home Loans employees underwrote and processed the application."
This second loan application contained many of the same false statements that were in O'Donnell's application for the first loan in L.T.'s name. O'Donnell also provided fraudulent responses to various follow-up inquiries in the course of seeking this second loan. When this second loan closed, O'Donnell pocketed most of the proceeds.
The key issue at trial concerned whether O'Donnell's fraudulent scheme to secure the second loan targeted Countrywide Bank, FSB, as the indictment alleged, or only Countrywide Home Loans, as O'Donnell contended. The identification of the intended target was crucial because O'Donnell stipulated that Countrywide Bank, FSB was a "financial institution" within the meaning of the Act, while the government did not dispute that Countrywide Home Loans was not.
In ruling from the bench at the close of evidence, the District Court explained that it had determined that the record showed that O'Donnell was "on notice" that Countrywide Bank, FSB was "part of this transaction in some form" in the second loan transaction. With that finding in place, the District Court then found that O'Donnell was guilty of "attempt[ing]" to execute — though not of actually executing — a scheme or artifice described in subsections (1) and (2) both because O'Donnell had intended to defraud Countrywide Bank, FSB and because he had intended to obtain money and property that was
"We review a bench trial conviction de novo, examining the facts and inferences in the light most favorable to the verdict."
We start with the Supreme Court's most recent case construing the Act,
Under subsection (1), a defendant who "knowingly executes or attempts to execute" a scheme or artifice to defraud a "financial institution" violates the Act.
O'Donnell's contrary argument proceeds in the following steps. He first argues that, under the "attempt" prong of subsection (1), the government had to prove that he
O'Donnell then contends that the evidence shows that, at most, Countrywide Bank, FSB "may have been involved in some way in the transaction." As a result, O'Donnell contends, he cannot have been found guilty under subsection (1), because the evidence in the record that supports a finding that O'Donnell knew that Countrywide Bank, FSB was involved "in some way" is insufficient to show that he specifically intended to defraud Countrywide Bank, FSB.
To support this argument about the insufficiency of the evidence, O'Donnell contends that the record reveals what he characterizes as only a "perfunctory reference" to Countrywide Bank, FSB in the papers that he received in connection with his application for, and the approval of, the second loan transaction. He also notes that most of the loan documents that he saw referenced Countrywide Home Loans and not Countrywide Bank, FSB. Further, he points out that the documents that he did see and that referred to Countrywide Bank, FSB, also contained references to Countrywide Home Loans. Thus, he contends that, although the evidence shows that he may have specifically intended to defraud Countrywide Home Loans, the evidence that he knew of Countrywide Bank, FSB's involvement in the transaction is simply too slight to show that he specifically intended to defraud Countrywide Bank, FSB.
The first of the documents that O'Donnell received that referred to Countrywide Bank, FSB, however, was not just any document. It was the loan conditions sheet, which contained the loan's terms and the conditions for its approval. And that document did not just contain any reference to Countrywide Bank, FSB. It made the following statement: "Thank you for
O'Donnell does not deny receiving this document. In fact, the record shows that he responded to the document by supplying the specific and detailed information (fabricated though it was) that the conditions sheet sought.
In addition, O'Donnell received another document that referenced Countrywide Bank, FSB. This second document was the
Given the documents that O'Donnell concededly saw in carrying out his fraudulent scheme, the nature of their references to Countrywide Bank, FSB, and what the record shows about what happened after he received each document, the record clearly supports a finding that O'Donnell was aware that Countrywide Bank, FSB — and not just Countrywide Home Loans — was involved in approving the loan that O'Donnell was seeking to obtain through fraudulent means.
Moreover, O'Donnell received these documents referencing Countrywide Bank, FSB while he was concededly engaged in a fraudulent scheme to secure a loan via false statements. And he was, by his own account, a sophisticated actor in the loan origination business. He thus fairly could have been understood to have been aware, as we observed more than two decades ago, that "financial transactions are becoming increasingly integrated and complex" and that "the effects of fraudulent actions against one institution are increasingly likely to spill over and detrimentally affect others."
To be sure, there is no evidence that O'Donnell was aware that Countrywide Bank, FSB was a "financial institution." But, there is no dispute that it is. And we have long held that the defendant need not have scienter of that necessary fact in order to be found guilty under the Act.
In so concluding, we recognize that the record shows that O'Donnell sent his response containing the fabricated information to Countrywide Home Loans — rather than to Countrywide Bank, FSB. And we recognize, too, that the papers that O'Donnell received in connection with the loan transaction referred to both Countrywide Home Loans and to Countrywide Bank, FSB. But, as we have explained, the nature of the references in those documents to Countrywide Bank, FSB are such that the record adequately supports the inference that O'Donnell specifically intended to defraud that latter entity and not simply the former one. Thus, the record sufficiently supports the finding that, by submitting fraudulent information to secure the loan in response to the conditions sheet that thanked O'Donnell for submitting his loan to Countrywide Bank, FSB, O'Donnell was taking a substantial step in his attempt to execute a fraudulent scheme directed at that same entity, even though he sent the response itself to Countrywide Home Loans.
Finally, O'Donnell argues that it was legally impossible for him to commit attempted bank fraud if he did not commit the completed crime, given that he specifically intended to defraud only Countrywide Home Loans and that he was not found guilty of doing anything more than attempting to defraud Countrywide Bank, FSB. This contention necessarily rests, however, on the premise that the evidence showing O'Donnell's awareness of Countrywide Bank, FSB's involvement in the loan transaction is insufficient to support the finding that O'Donnell specifically intended to defraud Countrywide Bank, FSB. But, as we have explained, that premise is mistaken, given the documents thanking O'Donnell for submitting his loan to Countrywide Bank, FSB and O'Donnell's admitted sophistication in the loan origination business. Thus, O'Donnell's legal impossibility argument is without substance.
For the foregoing reasons, the conviction is