EDITH BROWN CLEMENT, Circuit Judge.
Gregory Bernard Griffin was convicted of bank fraud, wire fraud, aggravated identity theft, money laundering, and conspiracy to commit money laundering. The indictment charged that he defrauded two federally insured banks. One of those banks, Bank of America Corporation,
In 2013, Griffin executed a fraudulent scheme involving identity theft, bank fraud, wire fraud, and money laundering. First, Griffin stole the Social Security number and date of birth of someone he never met, a Mississippi native named Johnny Jenkins. Griffin then opened a bank account under Jenkins's name, using the stolen information and a money order payable to Jenkins, at Magnolia Federal.
Griffin's scheme quickly unraveled. After Griffin wrote a $57,900 check on the Jenkins account to his sister, and declined to appear in person at the bank to verify the check, an official at Magnolia Federal became suspicious and refused to pay the check. And when Interstate Hotel and Resorts (Courtyard by Marriott Jackson's parent company) discovered the missing credit card payments, it contacted the Secret Service, which soon linked Griffin to the scheme.
A grand jury handed down a 17-count indictment, charging Griffin with bank fraud, wire fraud, aggravated identity theft, money laundering, and conspiracy to commit money laundering.
At some point, Griffin discovered this error. So after jury selection but before the jury was sworn, Griffin moved to preclude the government from referring to the not-involved-in-the-case Bank of America Corporation. He also moved to dismiss the case for lack of subject-matter jurisdiction, arguing that Magnolia Federal was the only federally insured entity in the indictment involved in the case and that Magnolia Federal was not defrauded. And because the other counts in the indictment relied on the bank fraud counts — for example, the counts of identity theft in furtherance of bank fraud — they would fall out of the case alongside the bank fraud counts.
Rather than re-indicting Griffin, the government conceded the motion to preclude evidence regarding Bank of America Corporation. But the government maintained that Magnolia Federal was in fact
During a two-day trial, the government limited its evidence to proof that Magnolia Federal, not Bank of America Corporation, was defrauded. Griffin moved for acquittal, challenging the sufficiency of the evidence that Magnolia Federal was defrauded. The district court denied the motion. The district court then redacted from the indictment any references to Bank of America as a financial institution and any references to Bank of America as a victim in the bank fraud counts. The district court also instructed the jury that the Bank of America entity involved in the case (Bank of America Merchant Services) was not federally insured and thus its involvement could not support the bank fraud charges.
The jury convicted Griffin on all 17 counts. He now appeals.
Griffin argues that by scrubbing references to Bank of America from the indictment presented to the jury, the district court constructively amended the indictment and thereby violated Griffin's Fifth Amendment right to a grand jury indictment.
"[A]fter an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself." Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). But not all changes to an indictment are impermissible. A "constructive amendment" of the indictment is reversible error per se — assuming that the defendant preserved his objection below
In other words, the key inquiry is whether the jury charge broadened the indictment; if it only narrowed the indictment, no constructive amendment occurred. Nuñez, 180 F.3d at 232-33; see also United States v. Soudan, 812 F.2d 920, 929 (5th Cir.1986) ("It is a long established principle that after an indictment has been returned its charges may not be broadened except by the grand jury itself."). Thus, "withdraw[ing] a portion of [the indictment] from the jury's consideration... because of the government's inability to prove that part" is not a constructive amendment, "provided the indictment still charges an offense and the same offense originally contemplated by the indictment as returned." United States v. Prior, 546 F.2d 1254, 1257 (5th Cir.1977); accord United States v. Hughes, 58 Fed. Appx. 597, at *1 (5th Cir.2003) (per curiam). Similarly, eliminating surplusage from the indictment, provided that nothing is thereby added to the indictment, is not a
Here, in redacting the indictment and in charging the jury, the district court only narrowed the indictment. The indictment charged that Griffin "knowingly devised and executed a scheme and artifice to obtain funds under the custody or control of Bank of America [Corporation] and Magnolia Federal Credit Union by means of materially false and fraudulent pretenses and representations." The government proved at trial that Griffin executed a scheme to obtain funds under Magnolia Federal's control through fraud. Thus, Griffin was convicted on a basis charged in the indictment. "[N]either the evidence at trial nor the jury instructions implied that [Griffin] could be convicted of anything other than" defrauding Magnolia Federal. Broadnax, 601 F.3d at 343. The government, by virtue of pleading that Griffin defrauded both Bank of America Corporation and Magnolia Federal — in the same counts — "was afforded the freedom of proving the elements of the crime in alternative ways." United States v. Reasor, 418 F.3d 466, 477 (5th Cir.2005). In other words, Griffin's complaint "is not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than was necessary." Miller, 471 U.S. at 140, 105 S.Ct. 1811. Thus, because the district court only narrowed the indictment, no constructive amendment occurred here. The variance, moreover, did not prejudice Griffin, who knew before trial that the government would proceed on a theory that only Magnolia Federal was defrauded.
Griffin also argues that the district court lacked jurisdiction because the government did not produce sufficient evidence to show that Magnolia Federal, the only federally insured bank left in the case, was defrauded.
To prove bank fraud, the government must show, among other things, "that the defendants placed the financial institution at risk of civil liability or financial loss."
Griffin contends that the government did not show that his fraud placed Magnolia Federal at risk of civil liability or financial loss. This is so, argues Griffin, because Magnolia Federal suffered no loss and was the transferee institution, not the transferor institution.
For the foregoing reasons, we AFFIRM Griffin's conviction.
And Griffin's reliance on Bradford Trust Co. of Boston v. Texas American Bank-Houston, 790 F.2d 407 (5th Cir.1986) for the proposition that the transferee institution does not risk civil liability is unpersuasive — the court in that case examined and applied Texas, rather than Mississippi, law.