### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 H I GGINSON, Circuit Judges. PER CURIAM: * Following a brief bench trial, Randall Glen Goodale, J r., was convicted of: executing a scheme either to defraud Wells Fargo Bank or to obtain m oneys or other property under the custody or control of that bank by means of false and fraudulent representation, i n violation of 18 U.S.C. § 1344; and aggravated identify theft, in violation of 1 8 U

. S .C. § 1028A(a)(1). Goodale primarily U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4 Case: 11-51204 Document: 00512271820 Page: 1 Date Filed: 06/12/2013No. 11-51204

contends: there w a s i nsufficient 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 l arge part at Goodale’s bench trial. At it s conclusion, the c ourt verbally r e ndered its findings of fact and c onclusions 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. R u m p l e had closed his c orresponding checking account, h owever, in October 2008. B etween 15 a nd 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 t o obtain goods, cash, gasoline, and other things of value, totaling $460.40. La Vernia O n e S t o p presented five of the s even 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 e x e cut[ing] and attempt[ing] to execute a s cheme and a rtifice to defraud and t o obtain th e moneys, fun d s , . . . or other property o wned by, or under the custody or control of Wells Fargo B ank, 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 o f “knowingly possess[ing] and us[ing], without lawful a uthority, a means of identification of another person, to wit: the person’s drivers’ l icense number, during and in relation to” the c h arged b ank fraud, in violation of 18 U.S.C. § 1028A(a)(1).

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At the 29 August 2 011 bench trial, Government exhibits and s tipulations

were admitted, f

ollowed by the testimony of two Governme nt witnesses. Rumple testified to, inter alia : his checkbook and Texas driver’s license being stolen from his vehicle in July 2 009; having clo s e d t hat checking account in October 2008; and not having authorized anyone t o use his checking account or driver’s license. Janie Valdez, a Wells F argo market-support consultant, testified concerning the risk of loss or civil liability Wells Fargo is exposed to w hen checks, legitimate and not legitimate, are presented. Goodale neither testified nor o therwise presented evidence. At the end of t rial, pursuant to findings o f f act and conclusions of law from the bench, Goodale was convicted on all counts. Included in the findings of fact was th at “[t]he evidence

. . . by the Wells Fargo representative [Valdez] establishes that there w as a potential risk of loss to the bank by” Goodale’s negotiating the checks. In it s conclusions of law, the court s tated, i nter a l i a , t h at Goodale “was unaware of whether the checking account was closed, not closed, ha d s u f f i cient f unds, had i nsufficient funds. Nevertheless, his intent was t o have the check[s] presented ultimately t o a bank for payment and he w ould receive items in return for that”. Noting our court has ruled that “the k now i ng cashing of bad checks demonstrate[s] an i ntent t o defraud a b ank , because this behavior expose[s] the bank to a significant risk of financial loss”, and because testimony established it was p o ssible the checks would have b een pa i d o n a closed account, the court c o ncluded, “beyond a

r e a sonable doubt, that [Goodale] c ommitted the crime of bank fra u d i n violation of 18 U.S.C. [ §] 1 344”. (Emphasis added.) “ [W]ith that finding”, the court concluded it was “uncontested that the identity theft occurred”. Goodale w as sentenced on 30 November 2011 to, inter alia , 39 m o n t hs’ imprisonment.

3 Case: 11-51204 Document: 00512271820 Page: 3 Date Filed: 06/12/2013No. 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 e xtent the latter convictions are vacated. A district court’s findings of fact following a bench t r i a l are reviewed for clear error; its conclusions o f law, de novo . E.g. , U n it e d S t a t e s v. Wallace , 389 F.3d 483, 485 (5th Cir. 2004). The clear-error s tandard 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). R e-stated, a finding of fact is clearly

erroneous “only if a review of all the evidence leaves u s w i th 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 o f the district court’s f inding Goodale guilty at his bench trial is to determine whether the finding is supported by “ any substantial evidence”. E.g. , U nited States v. Ceballos-Torres , 2 18 F.3d 409, 411 (5th Cir. 2000) (internal quotation marks and c itation omitted). “Evidence is sufficient to supp o r t a conviction if any rational tri e r o f f act could have found that the evidence established guilt beyond a reasonable doubt.” Id. In reviewing this bench-trial verdict, “ [i]t is n o t o u r f u nction to make credibility choices or to pass upon the weight o f the e v i d e n ce”. United States v. Rosas-Fuentes , 970 F.2d 1379, 1381 (5th Cir. 1992) (citation and alterations omitted). The evidence i s e xamined as

a whole and construed in the light most f avorable t o the G overnment. CeballosTorres , 218 F.3d at 411.

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This any-substantial-evidence s tan d a r d a pplies despite Goodale’s not moving f

o r j u d g m e nt of acquittal when the G overnment rested. See RosasFuentes , 970 F.2d at 1381; Hall v. U nited States , 286 F.2d 6 76, 677 (5th Cir. 1960) (no need for formal motion f or judgment of acquittal in criminal case tried to c ourt upon defendant’s plea of n ot guilty because that plea “asks the c ourt for judgment of acquittal, and a motion to the same end is not necessary”). A. Proscribed by the t wo s ubsections o f 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 o f, a financial institution, by

means of f

alse or fraudulent pretenses, r epresentations, or promises”. For § 1344(1), “[t]he requisite intent to d efraud i s e stablished if the defendant acted knowingly and with the s pecific intent to deceive, ordinarily for the purpose of causing some financial loss to another o r bringing about some financial gain to himself”. United S tates v. Saks , 964 F.2d 15 1 4 , 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 b oth means of violating the statute, allowing the Government to prove, beyond a re a s o n ab l e doubt, federal bank fraud under either subsection. In rendering its findings of fact and conc l usions of law, however, th e district c ourt did not clarify which prong of the statute Goodale had violated. For example, as noted s upra , the court discussed i n its conclusions of law that Goodale had the requisite intent to d e fraud Wells F argo, which c oncerns the requirements for conviction under § 1344(1). On the o ther hand, the court also ruled:

5 Case: 11-51204 Document: 00512271820 Page: 5 Date Filed: 06/12/2013No. 11-51204 B a nk fraud u nder Section 1344 requires that th e [G]overnment demonstrate the defendant placed t h e financial institution at risk of civil liability or financial loss. It is not necessary, however, for the [G]overnment to p rove that the banks actually suffered civil l iability or financial l oss in order to obtain a bank fraud conviction. The evidence presented by the W ells Fargo representative estab l i s h es that th ere w as a p otential risk of loss to the bank by these transactions. In this in s t a n c e , th e c ourt is generally discussing § 1344, without r eference 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 o r civil liability for a conviction p ursuant 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. 2 010) (citing United States v. Everett , 2 70 F .3d 989, 991) (6th C ir. 2001) (“[ T ] o have the specific intent required for b ank fraud the defendant need not have put the bank at risk of loss”.)) and United States v. De La Mata , 2 66 F.3d 1275, 129 8 ( 1 1 th Cir. 2001) (risk of loss only one means of establishing intent to defraud).) Thi s ri s k

- o f

-loss element is present when the Government seeks c o nvi c ti o n

u n d er either s ubsection of § 1344. As our court has acknowledged, “t h e t e r m s ‘scheme’ and ‘ artifice’ are defined to include, among o ther things, any fraudulent pretenses o r misrepresentations intended t o deceive others to obtain s omething of value, such as money, f rom the institution to b e d eceived”. Lemons , 941 F.2d at 314-15 (quoting U

nited States v. McClelland , 868 F.2d 704, 709 (5th Cir. 1989)). In Lemons , the jury was instructed o n only subsection one of § 1344; yet

our court understood that to allow conviction if the jury found d efendant sought to fraudulently obtain the bank’s property. Id

. Similarly, in Morganfield , while

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purporting to discuss only subsection two of § 1344, our court discussed the need for a “requisite intent t o defraud”—language that tracks s ub s e c t i on one. 501 F.3d at 464 (emphasis added). Moreover, o u r c o u r t has referred to risk o f loss as a n element of § 1344,

w i thout reference to either subsection. Id. at 465-66. A s noted, it h as a l s o acknowledged that risk of loss applies to both subsections. Id. at 467 n.53 (discussing risk of loss in context of subsection two, while c iting opinion finding sufficient risk of loss under s ubsection one). Accordingly, absent actual loss, the Government must prove a risk of loss or c ivil 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 M organfield . There, Morganfield and others engaged in

a scheme using false personal identifications to open c h ecking a cc o unts in the

names of none x i s t e nt b usinesses; they wrote checks on th ose accounts to nonexistent persons, knowing the acco u n t s had i nsufficient funds t o cover the checks; and they used the false identifications to c ash the checks at grocery and convenience stores. 501 F.3d at 456-57. Morganfield was c o n v i c t e d for, inter alia , two counts of bank fraud under § 1344(2). I d

. a t 456. Like Goodale, Morganfield’s challenge included insufficient evidence of: s p e c i fic i ntent to defraud; “and that any financial institution faced a risk of loss or civil l iability”. Id. at 457. Concerning M o r g anfield’s specific-intent challenge, o ur 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 th e drawer has simply overdrawn the account, the [G]overnment must present other fac t s e v i n c ing an intent to victimize the financial i n s t i t u t ion”. I d. at 465 (internal quotation marks omitted). Because the scheme was “not a simple insufficient check funds

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scheme”, the “other facts evincing a n intent to victimize the financial institution”, id. , were sufficient for a jury to rationally i nfer 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 ac c o u n t h a s insufficient f

unds on t h e a s sumption the customer will later deposit funds to

cover the difference, o ur court held such a “possibility creates a sufficient risk of loss to the financial institution” to support a bank-fraud conviction u n d e r 1 8 U

. S

. C. § 1344. Id. at 466-67. That was premised on our court’s h o l d i n g “ t h e [G]overnment need not p rove a subs t a n t i a l 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 o f fact regarding risk of loss are clearly erroneous. As Morganfield states, however, there need n ot be a ctual loss

or liability by the b ank, or even a substantial risk o f loss o r liability, to support

a bank-fraud conviction. Valdez t estified to the presence of a risk of loss or civil liability, through h uman or computer error, when a c heck, legitimate or not, is presented to the bank. For example, h er cross-examination testimony provides in part: [Goodale’s c ouns e l] : I n [the G overnment’s] questioning,

[it] as k e d you about risk o f l oss to the bank or civil liability. On an account that had al ready been c l osed, in this case, by Mr. Rump le, if s o mehow through a computer glitch or human error or whatever that check was p aid, that would not create any l i ab ility from th e bank to Mr. Rumple, would it? [Valdez]: I f it was paid, would there be a liability to Mr. R u m p le? I don’t know what that liability might b e , without a whole bunch of extra research involved. [Goodale’s counsel]: Let me ask you this. If it was paid, it w o uldn’t be paid out of M r. Rumple’s account, because he doesn’t have one anymore, correct? [Valdez]: Correct.

8 Case: 11-51204 Document: 00512271820 Page: 8 Date Filed: 06/12/2013No. 11-51204 [Goodale’s counsel]: So it would have to come out of the bank’s ledger? [Valdez]: Correct

. ( E m p h a s i s added.) I n short, the court’s risk-of-loss finding w as not clear l y
erroneous. In addition to Morganfield , p ersuasive a uthority is provided by U n ited States v. Brandon , 298 F .3d 307 (4th Cir. 2 0 0 2 ), which has a f actual scenario substantially similar to G oodale’s. Brandon was charged w ith federal bank frau d f o r engaging i n a scheme to defraud s everal f ederally-insured banks by stealing blank checks from six i ndividuals, procuring picture identifications beari n g each a ccount holder’s name, forging the account holders’ signatures, and negotiating th e checks t o p urchase items from merchants in M a ryland and Virginia. Id. at 309. After p leading guilty to six counts of bank f raud, B randon challenged on appeal the denial of her mo tion to dismiss the indictment, contending the facts alleged, even if t rue, 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 i nvolved negotiating s t o l e n checks to merchants, n ot presenting them directly t o banks; therefore, the fraud victims were the retail merchants, not the banks. I

d

. a t 3 1 0

. In affirming the denial of Brandon’s motion to dismiss the indictme n t , t he Fourth Circuit found the facts presented in the indictment “clearly i nform” that Brandon’s conduct, if proven, would constitute a scheme to defraud; where she nego ti at e d “forged instruments to merchants who exchanged good s f o r t he funds held by the drawee bank[,]

. . . an inevitable part of [that]
process i s the eventual presentatio n o f the stolen and f orged checks to the drawee banks, which exposes the banks to a potential risk of loss”. Id. at 312.

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The Fourth C ircuit in Brandon cited favorably to a Second Circuit opinion which r eached the sam e conclusion in a larger-scale bank-fraud scheme. The Fourth Circuit o pined: “The jury could in f e r t h a t inherent in [ defendant’s] transactions with [the merchant] was the risk that the forged checks would be
p r e s e nted to a bank for payment.

. . . [Defendant] is not relieved of cri m i n a l liability for bank fraud because his primary vi c tim w as [not a bank]”. I d. (quoting United States v. Crisci , 273 F.3d 235, 240 (2d Cir. 2001)). An important distinction in Brandon and Crisci is the legit i m a c y o f the accounts. The accounts in th os e c a s e s were not c l osed. Accordingly, Goodale contends that Rumple’s account being closed “ eliminated any cognizable risk of loss” to Wells Fargo f rom Goodale’s conduct. As discussed above, ho w e v e r , at the bench trial, the Government elicited testimony from Wells Fargo marketsupport consultant V aldez that human and computer e rror, albeit inherent in the presentation of legitimate checks as well as illegitimate checks, expo s e d Wells Fargo to possible risk of loss, even where checks were drawn on a closed account. The court relied in p art on this testimony to convict Goodale. As also discussed, the Government “ need not prove a substantial likelihood of risk of loss to support [bank f rau d] convictions”. Morganfield , 501 F.3d at 465-66. ( G o odale’s challenging lack of intent due to Rumple’s account’s being c losed i s inconsistent with the evidence: Goodale did not know the account was closed. At the bench trial, his coun s e l a g r e e d in closing argument that Goodale was

unaware of the account’s status in that regard. As Goodale’s counsel c onceded at oral argument here, this constituted an admission.) Brandon held “the prese n tation 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 n egoti a t i n g forged checks to La Vernia One

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Stop, in and of itself, established his intent t o defraud W ells Fargo, sufficient to uphold his § 1344 bank-fraud conviction. B. G o o d a le ’s a g g ra v a te d id e n tify -th e ft co nv i c tio n w a s u n d e r 1 8U .S

. C

. § 1028A(a)(1), which prohibits, i n ter alia , the kn o w i n g u s e of another person’s id e ntif i c atio n , with o u t l awf

ul au th o rity, during and in relation to th e commission of federal bank f

raud. Goo d a l e c o n cedes that, if we hold sufficient evidence supports his b ank-fraud convictions, that c ompels o ur upholding the identitytheft conviction as well. Accordingly, b ecause w e uphold the former c onvictions, the latter conviction is also upheld. I II. For the foregoing reasons, the judgment is AFFIRMED.

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