IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51204

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RANDALL GLEN GOODALE, JR., also known as Randall Glen Goodale,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:11-CR-409-1

Before STEWART, Chief Judge, and BARKSDALE and HIGGINSON, Circuit

Judges.

PER CURIAM:*

Following a brief bench trial, Randall Glen Goodale, Jr., was convicted of:

executing a scheme either to defraud Wells Fargo Bank or to obtain moneys or

other property under the custody or control of that bank by means of false and

fraudulent representation, in violation of 18 U.S.C. § 1344; and aggravated

identify theft, in violation of 18 U.S.C. § 1028A(a)(1). Goodale primarily

United States Court of Appeals

Fifth Circuit

F I L E D

June 12, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4

 Case: 11-51204 Document: 00512271820 Page: 1 Date Filed: 06/12/2013
No. 11-51204

contends: there was insufficient evidence to prove he possessed the intent to

defraud Wells Fargo, in violation of § 1344(1), through a scheme that placed it

at a risk of financial loss or civil liability. AFFIRMED.

I.

The underlying facts were stipulated in large part at Goodale’s bench trial. 

At its conclusion, the court verbally rendered its findings of fact and conclusions

of law. Some of those findings of fact follow. 

On 15 July 2009, a Wells Fargo checkbook and Texas driver’s license, each

belonging to David Rumple, were stolen from his vehicle in San Antonio, Texas.

Rumple had closed his corresponding checking account, however, in October

2008. Between 15 and 17 July 2009, Goodale used the stolen items to negotiate

fraudulently seven checks to La Vernia One Stop, a gasoline station located in

La Vernia, Texas. Goodale used the checks to obtain goods, cash, gasoline, and

other things of value, totaling $460.40. 

La Vernia One Stop presented five of the seven checks; Wells Fargo

returned them on grounds that either the account could not be located or it was

closed. The other two checks were not presented; they had been negotiated by

Goodale the day of his arrest.

A 25 May 2011 indictment charged Goodale with: two counts of

“knowingly execut[ing] and attempt[ing] to execute a scheme and artifice to

defraud and to obtain the moneys, funds, . . . or other property owned by, or

under the custody or control of Wells Fargo Bank, insured by the Federal

Deposit Insurance Corporation, by means of false and fraudulent pretenses,

representations, and promises”, with each count charging violation of 18 U.S.C.

§ 1344(1) and (2); and one count of “knowingly possess[ing] and us[ing], without

lawful authority, a means of identification of another person, to wit: the person’s

drivers’ license number, during and in relation to” the charged bank fraud, in

violation of 18 U.S.C. § 1028A(a)(1). 

2

 Case: 11-51204 Document: 00512271820 Page: 2 Date Filed: 06/12/2013
No. 11-51204

At the 29 August 2011 bench trial, Government exhibits and stipulations

were admitted, followed by the testimony of two Government witnesses. Rumple

testified to, inter alia: his checkbook and Texas driver’s license being stolen from

his vehicle in July 2009; having closed that checking account in October 2008;

and not having authorized anyone to use his checking account or driver’s license.

Janie Valdez, a Wells Fargo market-support consultant, testified concerning the

risk of loss or civil liability Wells Fargo is exposed to when checks, legitimate

and not legitimate, are presented. Goodale neither testified nor otherwise

presented evidence. At the end of trial, pursuant to findings of fact and

conclusions of law from the bench, Goodale was convicted on all counts.

Included in the findings of fact was that “[t]he evidence . . . by the Wells

Fargo representative [Valdez] establishes that there was a potential risk of loss

to the bank by” Goodale’s negotiating the checks. In its conclusions of law, the

court stated, inter alia, that Goodale “was unaware of whether the checking

account was closed, not closed, had sufficient funds, had insufficient funds.

Nevertheless, his intent was to have the check[s] presented ultimately to a bank

for payment and he would receive items in return for that”. Noting our court has

ruled that “the knowing cashing of bad checks demonstrate[s] an intent to

defraud a bank, because this behavior expose[s] the bank to a significant risk of

financial loss”, and because testimony established it was possible the checks

would have been paid on a closed account, the court concluded, “beyond a

reasonable doubt, that [Goodale] committed the crime of bank fraud in

violation of 18 U.S.C. [§] 1344”. (Emphasis added.) “[W]ith that finding”, the

court concluded it was “uncontested that the identity theft occurred”. 

Goodale was sentenced on 30 November 2011 to, inter alia, 39 months’

imprisonment. 

3

 Case: 11-51204 Document: 00512271820 Page: 3 Date Filed: 06/12/2013
No. 11-51204

II.

Goodale challenges whether the evidence was sufficient to prove he:

possessed the necessary intent to defraud Wells Fargo; and placed the bank at

a risk of financial loss or civil liability. The aggravated identify-theft conviction

having been predicated on the bank-fraud convictions, Goodale also challenges

the former conviction, but only to the extent the latter convictions are vacated.

A district court’s findings of fact following a bench trial are reviewed for

clear error; its conclusions of law, de novo. E.g., United States v. Wallace, 389

F.3d 483, 485 (5th Cir. 2004). The clear-error standard is highly deferential, e.g.,

United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011); if the challenged

findings are “plausible in [the] light of the record as a whole”, there is no clear

error, United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)

(internal quotation marks omitted). Re-stated, a finding of fact is clearly

erroneous “only if a review of all the evidence leaves us with the definite and

firm conviction that a mistake has been committed”. Rodriguez, 630 F.3d at 380

(internal quotation marks and citation omitted).

Our review of the district court’s finding Goodale guilty at his bench trial

is to determine whether the finding is supported by “any substantial evidence”.

E.g., United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000) (internal

quotation marks and citation omitted). “Evidence is sufficient to support a

conviction if any rational trier of fact could have found that the evidence

established guilt beyond a reasonable doubt.” Id. In reviewing this bench-trial

verdict, “[i]t is not our function to make credibility choices or to pass upon the

weight of the evidence”. United States v. Rosas-Fuentes, 970 F.2d 1379, 1381

(5th Cir. 1992) (citation and alterations omitted). The evidence is examined as

a whole and construed in the light most favorable to the Government. CeballosTorres, 218 F.3d at 411. 

4

 Case: 11-51204 Document: 00512271820 Page: 4 Date Filed: 06/12/2013
No. 11-51204

This any-substantial-evidence standard applies despite Goodale’s not

moving for judgment of acquittal when the Government rested. See RosasFuentes, 970 F.2d at 1381; Hall v. United States, 286 F.2d 676, 677 (5th Cir.

1960) (no need for formal motion for judgment of acquittal in criminal case tried

to court upon defendant’s plea of not guilty because that plea “asks the court for

judgment of acquittal, and a motion to the same end is not necessary”).

A.

Proscribed by the two subsections of 18 U.S.C. § 1344 are the knowing or

attempted execution of “a scheme or artifice (1) to defraud a financial institution;

or (2) to obtain any of the moneys, funds, credits, assets, securities, or other

property owned by, or under the custody or control of, a financial institution, by

means of false or fraudulent pretenses, representations, or promises”. For

§ 1344(1), “[t]he requisite intent to defraud is established if the defendant acted

knowingly and with the specific intent to deceive, ordinarily for the purpose of

causing some financial loss to another or bringing about some financial gain to

himself”. United States v. Saks, 964 F.2d 1514, 1518 (5th Cir. 1992); accord

United States v. Morganfield, 501 F.3d 453, 464 (5th Cir. 2007) (concerning

§ 1344(2)). 

Each bank-fraud count in Goodale’s indictment charged both means of

violating the statute, allowing the Government to prove, beyond a reasonable

doubt, federal bank fraud under either subsection. In rendering its findings of

fact and conclusions of law, however, the district court did not clarify which

prong of the statute Goodale had violated. 

For example, as noted supra, the court discussed in its conclusions of law

that Goodale had the requisite intent to defraud Wells Fargo, which concerns 

the requirements for conviction under § 1344(1). On the other hand, the court

also ruled: 

5

 Case: 11-51204 Document: 00512271820 Page: 5 Date Filed: 06/12/2013
No. 11-51204

Bank fraud under Section 1344 requires that the

[G]overnment demonstrate the defendant placed the

financial institution at risk of civil liability or financial

loss. It is not necessary, however, for the [G]overnment

to prove that the banks actually suffered civil liability

or financial loss in order to obtain a bank fraud

conviction. The evidence presented by the Wells Fargo

representative establishes that there was a potential

risk of loss to the bank by these transactions. 

In this instance,the court is generally discussing § 1344, without reference

to either of its subsections. 

It is well established that, in the absence of actual loss, our court requires

the Government to prove the bank was subject to a risk of loss or civil liability

for a conviction pursuant to 18 U.S.C. § 1344. E.g., United States v. Lemons, 941

F.2d 309, 315-16 (5th Cir. 1991). (Some of our sister courts do not read § 1344

to require proof of such risk of loss. For example, see United States v. Warshak,

631 F.3d 266, 313 (6th Cir. 2010) (citing United States v. Everett, 270 F.3d 989,

991) (6th Cir. 2001) (“[T]o have the specific intent required for bank fraud the

defendant need not have put the bank at risk of loss”.)) and United States v. De

La Mata, 266 F.3d 1275, 1298 (11th Cir. 2001) (risk of loss only one means of

establishing intent to defraud).)

This risk-of-loss element is present when the Government seeks conviction

under either subsection of § 1344. As our court has acknowledged, “the terms

‘scheme’ and ‘artifice’ are defined to include, among other things, any fraudulent

pretenses or misrepresentations intended to deceive others to obtain something

of value, such as money, from the institution to be deceived”. Lemons, 941 F.2d

at 314-15 (quoting United States v. McClelland, 868 F.2d 704, 709 (5th Cir.

1989)). In Lemons, the jury was instructed on only subsection one of § 1344; yet

our court understood that to allow conviction if the jury found defendant sought

to fraudulently obtain the bank’s property. Id. Similarly, in Morganfield, while

6

 Case: 11-51204 Document: 00512271820 Page: 6 Date Filed: 06/12/2013
No. 11-51204

purporting to discuss only subsection two of § 1344, our court discussed the need

for a “requisite intent to defraud”—language that tracks subsection one. 501

F.3d at 464 (emphasis added). 

Moreover, our court has referred to risk of loss as an element of § 1344,

without reference to either subsection. Id. at 465-66. As noted, it has also

acknowledged that risk of loss applies to both subsections. Id. at 467 n.53

(discussing risk of loss in context of subsection two, while citing opinion finding

sufficient risk of loss under subsection one). Accordingly, absent actual loss, the

Government must prove a risk of loss or civil liability to the financial institution

under either subsection of § 1344. 

In convicting Goodale of bank fraud, the district court relied primarily on

our recent decision in Morganfield. There, Morganfield and others engaged in

a scheme using false personal identifications to open checking accounts in the

names of nonexistent businesses; they wrote checks on those accounts to

nonexistent persons, knowing the accounts had insufficient funds to cover the

checks; and they used the false identifications to cash the checks at grocery and

convenience stores. 501 F.3d at 456-57. Morganfield was convicted for, inter

alia, two counts of bank fraud under § 1344(2). Id. at 456. Like Goodale,

Morganfield’s challenge included insufficient evidence of: specific intent to

defraud; “and that any financial institution faced a risk of loss or civil liability”.

Id. at 457.

Concerning Morganfield’s specific-intent challenge, our court held the

bank need not “be the central target of the alleged scheme for there to be bank

fraud liability. Rather, in such cases where the drawer has simply overdrawn

the account, the [G]overnment must present other facts evincing an intent to

victimize the financial institution”. Id. at 465 (internal quotation marks

omitted). Because the scheme was “not a simple insufficient check funds

7

 Case: 11-51204 Document: 00512271820 Page: 7 Date Filed: 06/12/2013
No. 11-51204

scheme”, the “other facts evincing an intent to victimize the financial

institution”, id., were sufficient for a jury to rationally infer intent, id. at 461. 

Concerning Morganfield’s risk-of-loss challenge, where, based on witness

testimony, it is possible a bank may honor a check when the account has

insufficient funds on the assumption the customer will later deposit funds to

cover the difference, our court held such a “possibility creates a sufficient risk of

loss to the financial institution” to support a bank-fraud conviction under 18

U.S.C. § 1344. Id. at 466-67. That was premised on our court’s holding “the

[G]overnment need not prove a substantial likelihood of risk of loss to support

the convictions”. Id. at 465-66 (quotation marks omitted) (emphasis added). 

Goodale claims the district court’s findings of fact regarding risk of loss are

clearly erroneous. As Morganfield states, however, there need not be actual loss

or liability by the bank, or even a substantial risk of loss or liability, to support

a bank-fraud conviction. Valdez testified to the presence of a risk of loss or civil

liability, through human or computer error, when a check, legitimate or not, is

presented to the bank. For example, her cross-examination testimony provides

in part:

[Goodale’s counsel]: In [the Government’s] questioning,

[it] asked you about risk of loss to the bank or civil

liability. On an account that had already been closed,

in this case, by Mr. Rumple, if somehow through a

computer glitch or human error or whatever that check

was paid, that would not create any liability from the

bank to Mr. Rumple, would it?

[Valdez]: If it was paid, would there be a liability to Mr.

Rumple? I don’t know what that liability might be,

without a whole bunch of extra research involved.

[Goodale’s counsel]: Let me ask you this. If it was paid,

it wouldn’t be paid out of Mr. Rumple’s account,

because he doesn’t have one anymore, correct?

[Valdez]: Correct.

8

 Case: 11-51204 Document: 00512271820 Page: 8 Date Filed: 06/12/2013
No. 11-51204

[Goodale’s counsel]: So it would have to come out of the

bank’s ledger?

[Valdez]: Correct.

(Emphasis added.) In short, the court’s risk-of-loss finding was not clearly

erroneous. 

In addition to Morganfield, persuasive authority is provided by United

States v. Brandon, 298 F.3d 307 (4th Cir. 2002), which has a factual scenario

substantially similar to Goodale’s. Brandon was charged with federal bank

fraud for engaging in a scheme to defraud several federally-insured banks by

stealing blank checks from six individuals, procuring picture identifications

bearing each account holder’s name, forging the account holders’ signatures, and

negotiating the checks to purchase items from merchants in Maryland and

Virginia. Id. at 309. After pleading guilty to six counts of bank fraud, Brandon

challenged on appeal the denial of her motion to dismiss the indictment,

contending the facts alleged, even if true, were insufficient for bank fraud under

18 U.S.C. § 1344. Id. at 309-10. 

Brandon’s challenge to the indictment presented a contention analogous

to Goodale’s: that the facts did not support federal bank fraud because the

scheme involved negotiating stolen checks to merchants, not presenting them

directly to banks; therefore, the fraud victims were the retail merchants, not the

banks. Id. at 310. In affirming the denial of Brandon’s motion to dismiss the

indictment, the Fourth Circuit found the facts presented in the indictment

“clearly inform” that Brandon’s conduct, if proven, would constitute a scheme to

defraud; where she negotiated “forged instruments to merchants who exchanged

goods for the funds held by the drawee bank[,] . . . an inevitable part of [that]

process is the eventual presentation of the stolen and forged checks to the

drawee banks, which exposes the banks to a potential risk of loss”. Id. at 312. 

9

 Case: 11-51204 Document: 00512271820 Page: 9 Date Filed: 06/12/2013
No. 11-51204

The Fourth Circuit in Brandon cited favorably to a Second Circuit opinion

which reached the same conclusion in a larger-scale bank-fraud scheme. The

Fourth Circuit opined: “The jury could infer that inherent in [defendant’s]

transactions with [the merchant] was the risk that the forged checks would be

presented to a bank for payment. . . . [Defendant] is not relieved of criminal

liability for bank fraud because his primary victim was [not a bank]”. Id.

(quoting United States v. Crisci, 273 F.3d 235, 240 (2d Cir. 2001)). 

An important distinction in Brandon and Crisci is the legitimacy of the

accounts. The accounts in those cases were not closed. Accordingly, Goodale

contends that Rumple’s account being closed “eliminated any cognizable risk of

loss” to Wells Fargo from Goodale’s conduct. As discussed above, however, at

the bench trial, the Government elicited testimony from Wells Fargo marketsupport consultant Valdez that human and computer error, albeit inherent in

the presentation of legitimate checks as well as illegitimate checks, exposed

Wells Fargo to possible risk of loss, even where checks were drawn on a closed

account. The court relied in part on this testimony to convict Goodale. As also

discussed, the Government “need not prove a substantial likelihood of risk of loss

to support [bank fraud] convictions”. Morganfield, 501 F.3d at 465-66.

(Goodale’s challenging lack of intent due to Rumple’s account’s being closed is

inconsistent with the evidence: Goodale did not know the account was closed.

At the bench trial, his counsel agreed in closing argument that Goodale was

unaware of the account’s status in that regard. As Goodale’s counsel conceded

at oral argument here, this constituted an admission.) 

Brandon held “the presentation of a forged or altered instrument is

evidence, in and of itself, of an intent to defraud a bank”. Brandon, 298 F.3d at

313 (emphasis added) (citing United States v. Laljie, 184 F.3d 180, 190-91 (2d

Cir. 1999)). Our court has cited approvingly to this holding. See Morganfield,

501 F.3d at 465 n.48. Goodale’s negotiating forged checks to La Vernia One

10

 Case: 11-51204 Document: 00512271820 Page: 10 Date Filed: 06/12/2013
No. 11-51204

Stop, in and of itself, established his intent to defraud Wells Fargo, sufficient to

uphold his § 1344 bank-fraud conviction.

B.

Goodale’s aggravated identify-theft conviction was under 18 U.S.C.

§ 1028A(a)(1), which prohibits, inter alia, the knowing use of another person’s

identification, withoutlawful authority, during and in relation to the commission

of federal bank fraud. Goodale concedes that, if we hold sufficient evidence

supports his bank-fraud convictions, that compels our upholding the identitytheft conviction as well. Accordingly, because we uphold the former convictions,

the latter conviction is also upheld. 

III.

For the foregoing reasons, the judgment is AFFIRMED.

11

 Case: 11-51204 Document: 00512271820 Page: 11 Date Filed: 06/12/2013