Expansive Reading of Bank Fraud Statute Conflicts with Other Circuits; Change-of-plea Notice Stops Speedy Trial Clock

U.S. v. Loughrin, 2013 WL 856577 (3/8/13) (Ut.) (Published) - A very scary case if you're worried about the feds taking over what one would think would be state crimes. In this case, the defendant altered stolen checks to make purchases at a Target store. He would then return the purchases for cash. The 10th holds that to convict the defendant of bank fraud under 18 U.S.C. § 1344(2) the government did not have to prove he intended to defraud a financial institution. All it had to do was show he obtained by false pretenses money that was under the custody or control of a bank. It was enough that the defendant intended to defraud Target. Unlike § 1344(1), which prohibits defrauding a financial institution, § 1344(2) does not require proof that a bank was at risk. The provision's language focuses on the defendant's conduct. The 10th recognizes its holding conflicts with the holdings of other circuits and that its interpretation "may cast a wide net for bank fraud liability," but "that's the plain language."

On the Speedy Trial Act front, the 10th holds that a change-of-plea notice counts as a pretrial motion to stop the speedy trial clock, even though it prompts no extra work in the form of briefs. It does unsettle expectations and require consideration of certain factors, like the factual basis. In this case, the defendant changed his mind about pleading. The time in between the notice and the defendant's announcement of his change of heart was excluded from the clock. Also, the defendant waived an argument that a particular continuance order was inadequate because he had not raised that particular problem below. Not even plain error review was appropriate under the Act. The 10th holds that a district court could not use new findings made after the fact to justify an old continuance order. But the government's motion to amend the old order stopped the clock from running. And the facts were compelling to justify a continuance of two months for the government to re-subpoena and reschedule its witnesses [after the defendant changed his mind about pleading] and debrief and prepare the testimony of the codefendant who decided to turn on the defendant. "While perhaps the government didn't need the full two months---indeed, it originally only asked for one month---the facts don't indicate the district court acted arbitrarily or capriciously in excluding those days from the Act's clock." The trial court's continuance order, although it could have been more thorough and explicit" was good enough, given the court's probing inquiries at the hearing on the continuance motion.