In United States v. Rizo-Rizo, --- F.4th ---, No. 20-50172 (9th Cir. 2021), the Court affirmed a conviction for attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1).
In United States v. Tat, --- F.4th ---, No. 19-50034 (9th Cir. 2021), the Court reversed a conviction on one count of making a false entry in bank records in violation of 18 U.S.C. § 1005 (Count 3), affirmed a conviction on a second count of the same offense (Count 2), and remanded for resentencing.
Cashier’s checks—unlike loans—cannot be issued until the bank receives funds. The bank would know that a real customer drew a real cashier’s check from the undisputed balance of her real account. How one chooses to “dispose of the fund[s] so obtained should, in the absence of misrepresentation on h[er] part, be of no interest to the bank, and certainly not to the criminal law.”
Even if Defendant made the entries with an intent to deceive bank officials, that satisfies only one of §1005’s three elements. Wolf, 820 F.2d at 1504. An intent to deceive is the offense’s mens rea, not the entire offense. It is no answer that the cashier’s check was related to a money laundering scheme; § 1956—not § 1005—outlaws money laundering. Accurate records reflecting a customer’s purchase of a cashier’s check from her bank account are not false entries under § 1005 solely because that check has a nexus to money laundering. We thus reverse Defendant’s conviction on Count 3.
In United States v. Goodall, --- F.4th ---, No. 18-10004 (9th Cir. 2021), the Court dismissed Goodall’s appeal seeking to vacate his conviction and sentence for Hobbs Act conspiracy.
Facing potentially more than seven decades in prison for his role in a string of armed robberies, Eric Goodall struck a plea deal. He pleaded guilty to two counts of conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)) and one count of brandishing a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)(3)). He also accepted a 20-year sentencing recommendation and agreed to waive his right to appeal his conviction or sentence. The district court imposed an even shorter sentence of 14 years’ imprisonment. About a year and a half after his sentencing, the Supreme Court in United States v. Davis, 139 S. Ct. 2319 (2019), held that a conspiracy to commit Hobbs Act robbery cannot be a crime of violence under the residual clause of 18 U.S.C. § 924(c)(3).Goodall now tries to wriggle his way out of his plea deal. Despite his appellate waiver, Goodall seeks to vacate his § 924(c) conviction, arguing that he could not have knowingly waived an appellate issue not yet in existence at the time of his plea deal. He also asks this court to expand our “illegal sentence” exception to an appellate waiver and carve out yet another exemption for an “illegal conviction.” See United States v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016).We uphold the appellate waiver in Goodall’s plea agreement and thus dismiss his appeal. By waiving his appellate rights, Goodall knowingly and voluntarily assumed the risk that the law might change in his favor. We also decline to expand the “illegal sentence” exception. Our decision in Torres carefully circumscribed the definition of “illegal sentence,” and its reasoning does not apply to purportedly “illegal convictions.”
In United States v. Yates, --- F.4th ---, No. 18-30183 (9th Cir. 2021), a divided Court vacated the convictions of two bank executives for conspiracy to commit bank fraud (18 U.S.C. § 1349) and 12 counts of making a false bank entry (18 U.S.C. § 1005).
The accurate-information theory is legally insufficient. There is no cognizable property interest in “the ethereal right to accurate information.” United States v. Sadler, 750 F.3d 585, 591 (6th Cir. 2014). Although a property right in trade secrets or confidential business information can constitute “something of value,” Carpenter v. United States, 484 U.S. 19, 26 (1987), “the right to make an informed business decision” and the “intangible right to make an informed lending decision” cannot, United States v. Lewis, 67 F.3d 225, 233 (9th Cir. 1995).
Recognizing accurate information as property would transform all deception into fraud. By definition, deception entails depriving the victim of accurate information about the subject of the deception. But “[i]ntent to deceive and intent to defraud are not synonymous.” United States v. Yermian, 468 U.S. 63, 73 n.12 (1984) (quoting United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978) (per curiam)). Rather, “the scheme must be one to deceive the bank and deprive it of something of value.” Shaw, 137 S. Ct. at 469.
[T]here is a difference between a scheme whose object is to obtain a new or higher salary and a scheme whose object is to deceive an employer while continuing to draw an existing salary—essentially, avoiding being fired. The history of the Supreme Court’s treatment of fraud in the employment context demonstrates why that distinction matters.
To be sure, the government charged Heine and Yates with conspiring to commit property fraud, not honest-services fraud. But we do not believe the Court intended “to let in through the back door the very prosecution theory that [it] tossed out the front.”
Permitting the government to recharacterize schemes to defraud an employer of one’s honest services—thereby profiting “through the receipt of salary and bonuses,” Skilling, 561 U.S. at 413—as schemes to deprive the employer of a property interest in the employee’s continued receipt of a salary would work an impermissible “end-run” around the Court’s holding in Skilling
We agree that if an employer offers a raise or a bonus tied to some specific performance metric, an employee who lies about having achieved that metric has deprived the employer of something of value. But the evidence at trial showed that the defendants were interested in receiving standard annual raises and end-of-year bonuses that were based on the bank’s overall financial condition, not on any specific metric they falsified to obtain additional compensation. In practice, that seems little different from deceiving an employer about working productively. In any event, the government’s argument to the jury did not distinguish between the maintenance of the defendants’ existing salaries and the receipt of an increased salary or bonus. As the government presented the case, it was effectively an honest-services case dressed in the garb of salary deprivation.
[T]he fraudulent diversion of a bank’s funds for unauthorized purposes certainly could be the basis for a conviction under section 1344.
[E]ven assuming that the bank-funds theory was presented to the jury and was valid, we still must overturn the conspiracy conviction because the government’s reliance on the accurate-information and salary-maintenance theories was not harmless. As we have explained—and as the government concedes with respect to the accurate-information theory—both theories were legally invalid. The Supreme Court has held that “constitutional error occurs” when a jury “returns a general verdict that may rest on a legally invalid theory.”
Significantly, the jury returned a split verdict and deliberated for four days—facts that weigh against a finding of harmless error.
Bank executives considering engaging in fraud should take no comfort from this result. Our decision in no way limits the scope of sections 1344 and 1349 or the government’s ability to bring prosecutions under those statutes. We hold only that when the government devotes the bulk of its presentation to two legally invalid theories of guilt—the most prominent of which, it bears repeating, the government now admits was invalid—we will not affirm a general verdict simply because, had we been on the jury, we might have found the defendants guilty on a third theory.
Nor is there any basis for remanding to give the government an opportunity for a do-over after it made the strategic choice not to address all of the defendants’ arguments in its appellate brief.
“[W]hen a statement is literally true, it is, by definition, not false and cannot be treated as such . . . , no matter what the defendant’s subjective state of mind might have been.” United States v. Aquino, 794 F.3d 1033, 1036 (9th Cir. 2015) (first alteration in original) (quoting United States v. Castro, 704 F.3d 125, 139 (3d Cir. 2013)). Even if a transaction “is a part of a fraudulent or otherwise illegal scheme,” it is not false to report it as it occurred. Erickson, 601 F.2d at 302.
In United States v. Madrid-Becerra, --- F.4th ---, No. 19-10458 (9th Cir. 2021), the Court affirmed a sentence for illegal re-entry under 8 U.S.C. § 1326(a).