*

The Honorable Glen M. Williams, Senior United States District

Judge for the Western District of Virginia, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0254P (6th Cir.)

File Name: 03a0254p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SCOTT A. REAUME,

Defendant-Appellant.

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No. 02-1112

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 97-81475—Gerald E. Rosen, District Judge.

Argued: June 20, 2003

Decided and Filed: July 28, 2003 

Before: KENNEDY and COLE, Circuit Judges;

WILLIAMS, Senior District Judge.*

_________________

COUNSEL

ARGUED: Richard B. Ginsberg, Ann Arbor, Michigan, for

Appellant. Stephen L. Hiyama, ASSISTANT UNITED

2 United States v. Reaume No. 02-1112

STATES ATTORNEY, Detroit, Michigan, for Appellee.

ON BRIEF: Richard B. Ginsberg, Ann Arbor, Michigan, for

Appellant. Stephen L. Hiyama, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. Defendant-Appellant

Scott A. Reaume was convicted by a jury of committing bank

fraud, in violation of 18 U.S.C. § 1344. Reaume admits to

opening several checking accounts at a federally insured

financial institution, making an initial deposit of a small sum,

writing checks from these accounts for goods and services

throughout the country with the knowledge that the accounts

did not contain sufficient funds to cover the value of the

checks, and returning the majority of the items purchased by

check to branches of stores in different locations in exchange

for cash. 

After proceeding to trial on the theory that his scheme was

not intended to defraud a federally insured financial

institution, Reaume was found guilty by a jury. The final

judgment of conviction and sentence was entered on

January 3, 2002, and this timely appeal followed. 

For the reasons that follow, we AFFIRM the judgment of

the district court.

I.

On August 19, 1999, a federal grand jury returned a

one-count indictment charging Reaume with bank fraud. The

indictment alleged that Reaume knowinglyexecuted a scheme

to defraud Monroe Bank and Trust (“the Bank”). 

Reaume’s jury trial began on August 14, 2001. At trial,

testimony was presented that Reaume opened two checking
No. 02-1112 United States v. Reaume 3

accounts at the Bank using the aliases Steven D. McIlveen

and Robert Sandor. Accounts also were opened at the Bank

by Adam Rodriguez and Danny K. Drummond in their own

names. Drummond opened an additional account under the

alias of John S. Woods. 

Reaume, Rodriguez, and Drummond used checks drawn

from their accounts to purchase merchandise at various

branches of national-chain retailers, and subsequently

returned most of the merchandise for cash refunds at other

branches of the stores. The Bank flagged the five accounts

early on and refused to honor the checks for which there were

insufficient funds (“NSF checks”). The losses resulting from

the passing of these NSF checks, therefore, fell on either the

retailers themselves or the check-guarantee companies that

insured the retailers.

On August 16, 2001, the jury returned a guilty verdict. On

January 3, 2002, the district court determined that Reaume’s

guideline range was twenty-seven to thirty-three months,

sentenced Reaume to thirty months of imprisonment and four

years of supervised release, and ordered him to pay restitution

in the amount of $95,649.26. 

On appeal, Reaume raises four points of error. First, he

argues that the evidence presented at trial was insufficient to

maintain a conviction under the federal bank fraud statute

because there was no evidence that he intended to defraud the

bank itself, as opposed to the individual merchants or their

respective insurance companies. Second, Reaume contends

that the district court erred in refusing to award him a

two-point reduction in offense level for acceptance of

responsibility. Third, he asserts that the district court erred in

overruling his objections at sentencing to the amount of

money at issue in the fraud. Fourth, Reaume argues that the

district court erred in ordering him to pay restitution in excess

of $95,000 without considering his ability to pay. 

4 United States v. Reaume No. 02-1112

II.

A. Sufficiency of the Evidence and Intent to Defraud

Reaume argues that there was insufficient evidence to find

that he specifically intended to defraud the Bank, as opposed

to the merchants or their insurers. He contends that an intent

to defraud the payee of an NSF check does not provide a basis

for a finding that there was an intent to subject the issuing

bank to a loss. Accordingly, Reaume argues that the district

court erred in denying his motion for a judgment of acquittal.

The denial of a motion for a judgment of acquittal is reviewed

de novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir.

2002). 

Three elements are required for a conviction of bank fraud

pursuant to § 1344: (1) the defendant must have knowingly

executed or attempted to execute a scheme to defraud a

financial institution; (2) the defendant must have done so with

the intent to defraud; and (3) the financial institution must

have been insured by the Federal Deposit Insurance

Corporation. United States v. Everett, 270 F.3d 986, 989 (6th

Cir. 2001). 

This Court previously addressed the intent element of the

bank fraud statute in United States v. Hoglund, 178 F.3d 410

(6th Cir. 1999), and Everett. While neither of these cases are

directly controlling, their explication here is critical because

it is from these cases that we distill the principle which we

apply to the present case. 

In Hoglund, an attorney was convicted under § 1344 after

settling his clients’ cases without their permission, forging

their signatures on the settlement checks he received, and

depositing the money into his own account. 178 F.3d at 411.

In Hoglund, we addressed the issue of whether the

Government must prove that the defendant exposed a bank to

a risk of loss as part of the “scheme to defraud” element. Id.

at 413. Hoglund resolved this question by holding that “risk
No. 02-1112 United States v. Reaume 5

of loss” is simply “one way of establishing intent to defraud

in bank cases.” Id. Thus, this Court found that a defendant

need not have exposed a bank to a risk of loss as an element

of bank fraud. Id. Instead, proof that the defendant “intended

to put a bank at a risk of loss” was sufficient to maintain a

bank fraud conviction. Id. Thus, Hoglund held that the bank

fraud statute is violated, even when there is no actual risk of

loss on the part of the bank, if the defendant’s intent is to

expose the bank to such a risk. While informative, Hoglund

is not controlling in the present case. Here, in contrast to

Hoglund, the defendant claims that, regardless of whether

there was an actual risk of loss, there was no intent to expose

the Bank to a risk of loss.

In Everett, the defendant, a certified public accountant, was

found guilty of bank fraud by a jury. 270 F.3d at 989. On

appeal, the defendant argued that the Government failed to

prove the specific intent required by § 1344, namely, the

intent to defraud a federally insured bank, or at least to put the

bank at a risk of loss. Id. at 990. The defendant

acknowledged that there was evidence that she intended to

defraud her client, but argued that the manner in which she

defrauded her client did not impose a risk of loss on the bank

in question. Id. In affirming the conviction, we held that the

specific intent required for bank fraud does not require putting

the bank at a risk of a loss or intending to do so “in the usual

sense.” Id. at 991. “It is sufficient if the defendant in the

course of committing fraud on someone causes a federally

insured bank to transfer funds under its possession and

control.” Id. Everett, therefore, can be said to stand for the

proposition that the bank fraud statute is violated, even if the

intended victim of the fraudulent activity is an entity other

than a federally insured financial institution, when the

fraudulent activity causes the bank to transfer funds. Thus,

the holding of Everett is also instructive but not squarely on

point, as there was no evidence in the present case indicating

that the Bank actually did transfer funds in connection with

Reaume’s fraudulent activities.

6 United States v. Reaume No. 02-1112

Unlike the defendant in Hoglund, Reaume contends that he

harbored no intent to expose the financial institution to a risk

of loss. Moreover, unlike the situation in Everett, Reaume

contends, and the evidence substantiates, that the Bank never

transferred any funds in connection with the fraudulent

activity. Thus, it appears that Reaume’s particular fact pattern

does not fall neatly under the Hoglund or Everett rubric,

which consider both the intended victim and actual loss.

We nevertheless affirm Reaume’s conviction. The specific

issue that Reaume appeals is the evidence of his intent to

defraud the Bank itself. In Everett, this Court held that an

intent to put the financial institution at a risk of loss is not

required, and that the fact that the defendant defrauded

someone was sufficient, given that the fraud caused the bank

to transfer funds. 270 F.3d at 991. In the present case, the

Bank was clearly at a risk of loss. Evidence was presented at

trial to demonstrate that, when the Bank receives an NSF

check, it makes a decision to either honor the check anyway

or to dishonor the check. If the check is dishonored, the Bank

does not lose any money, but if the check is honored, and the

account holder fails to pay back that debt to the Bank, the

Bank suffers a loss. Therefore, it is clear that Reaume’s

fraudulent activity, regardless of the intended victim, could

have caused the Bank to transfer funds. If in fact the Bank

had transferred funds, then this case would clearly be

governed by Everett, because an intent to defraud someone

would have caused the Bank to transfer funds. The issue of

Reaume’s intent simply cannot logically turn on the course of

action chosen by the Bank after receiving the NSF checks.

Accordingly, it is a necessary extension of Everett to find the

intent element of § 1344 satisfied in this case.

Everett contains language to support this outcome. In

Everett, this Court stated that the Government is probably

better advised to proceed under the wire or mail fraud statutes

where the bank has “minimal involvement, such as where a

swindler deceives someone into voluntarily writing checks to

the swindler on a good account.” Id. Nevertheless, the Court
No. 02-1112 United States v. Reaume 7

1

It should be noted that Everett was decided on October 12, 2001,

and Reaume’s trial concluded on August 16, 2001. 

indicated that even such a minimal involvement of the bank

is sufficient to find liability under § 1344 when the specific

intent to defraud someone is present. Id. Therefore, we need

not address the question of whether the evidence presented at

trial was sufficient for a reasonable jury to find that Reaume

intended to defraud the Bank specifically. Applying the

reasoning of Hoglund and Everett, we find that intent to

defraud the federally insured institution itself is satisfied

where: (1) the intent to defraud some entity was present; and

(2) that intended fraud placed a federally insured financial

institution at a risk of loss. 

In providing the jury with instructions at the close of trial,

the district court stated that the Government not only needed

to prove that Reaume knowingly executed or participated in

a scheme to defraud a federally insured financial institution,

but also that Reaume “did so with the intent to defraud

Monroe Bank & Trust.” The district court later stated that

“the Government must prove beyond a reasonable doubt that

the scheme to defraud was employed by the defendant to

defraud Monroe Bank & Trust.” Given our holding in Everett

that the intent to have a bank be the victim of the fraudulent

conduct is not a prerequisite to maintaining a conviction

under the bank fraud statute, the jury instructions given by the

district court benefitted Reaume.1 In light of Everett,

therefore, Reaume’s argument that the evidence presented at

trial was insufficient to demonstrate the intent required by the

bank fraud statute fails.

B. Sentence Reduction for Acceptance of Responsibility

Reaume appeals the decision of the district court refusing

to grant him a two-point reduction in his offense level for

acceptance of responsibility. Because such a finding

generally presents a question of fact, this Court reviews a

8 United States v. Reaume No. 02-1112

district court’s finding that a defendant is not entitled to a

sentencing reduction for acceptance of responsibility for clear

error. United States v. Childers, 86 F.3d 562, 563 (6th Cir.

1996). However, if the only issue presented is the propriety

of applying the reduction to the uncontested facts, the

decision is reviewed de novo. United States v. Tilford, 224

F.3d 865, 867 (6th Cir. 2000). 

TheUnitedStates Sentencing Guidelines(the “Guidelines”)

provide that a two-point reduction in offense level is

applicable where the defendant clearly demonstrates

acceptance of responsibility for his offense. U.S.

SENTENCING GUIDELINES MANUAL § 3E1.1. While a guilty

plea is ordinarily a prerequisite for this reduction, Application

Note 2 of this provision states that conviction by trial does not

automatically exclude a defendant from consideration for this

reduction. U.S. SENTENCING GUIDELINES MANUAL § 3E1.1,

comment. 2. The Guidelines provide that, under rare

circumstances, a defendant may clearly demonstrate an

acceptance of responsibility despite exercising his

constitutional right to trial. Id. For instance, where a

defendant goes to trial to assert issues that do not relate to

factual guilt, such as a challenge to the applicability of a

statute to his conduct, a reduction may be warranted. Id.

Even in such an instance, however, “a determination that a

defendant has accepted responsibility will be based primarily

upon pre-trial statements and conduct.” Id. 

Reaume’s position is that he did not contest the

Government’s factual allegations at trial, but rather, merely

contested the applicability of the bank fraud statute to the

conduct in which he participated. In contrast, the

Government maintains that Reaume did in fact contest the

issue of whether he participated in the scheme with an intent

to defraud the Bank. According to the Government,

Reaume’s specific intent to defraud the Bank is a factual

matter. 
No. 02-1112 United States v. Reaume 9

2

Guideline § 2F1.1 has been repealed and replaced by the

consolidated property-crime provisions in § 2B1.1. Section 2F1.1 was

repealed prior to Reaume’s sentencing. Nevertheless, due to ex post facto

concerns that arise as a result of the harsher penalties contained in

§ 2B1.1, the probation officer was correct to use the version of the fraud

guideline, § 2F1.1, in effect when Reaume’s offense occurred. See U.S.

SENTENCING GUIDELINES MANUAL § 1B1.11(b)(1). 

We agree with the Government. At the time of Reaume’s

trial, the district court and the parties accepted that the

Government’s burden included demonstrating that Reaume

intended to place the Bank at a risk of loss. Whether this

intent is required under § 1344 is a question of law, but

whether Reaume actually harbored such an intent is a

question of fact for the jury to decide. Reaume elected to put

the Government to its burden of proof at trial by denying

what was understood to be an essential factual element of

guilt. Accordingly, the refusal of the district court to award

Reaume a reduction for acceptance of responsibility was not

clear error.

C. Amount of Loss

Reaume argues that the district court erred by scoring his

Guidelines range based on a finding that the relevant conduct

contributed to between $200,000 and $350,000 in losses.

This Court will only set aside a district court’s factual finding

with regard to the amount of loss attributed to a defendant

under Guidelines § 2F1.1(b) if it concludes that the district

court’s finding of fact was clearly erroneous.

2

 United States

v. Ware, 282 F.3d 902, 907 (6th Cir. 2002).

In its first sentencing memorandum, the Government

attributed $211,193.99 in losses to Reaume, comprising the

following sums: (1) $108,328.37 for the losses caused by

Reaume, Rodriguez, and Drummond through the use of NSF

checks from the Bank; (2) $92,000.00 for the losses caused by

the use of NSF checks by Jamie Reaume, the defendant’s

10 United States v. Reaume No. 02-1112

younger brother; and (3) $10,865.62 for the losses caused by

Pamela Reaume, the defendant’s sister. 

At the sentencing hearing, the district court expressed

concern about attributing to Reaume the losses caused by his

siblings. Accordingly, the district court decided not to

impose a sentence until it had the opportunity to hear

testimony from the two siblings and make a determination as

to whether their conduct was connected to Reaume’s conduct

in a manner that was sufficient to satisfy the relevant conduct

criteria for sentencing purposes.

In its second sentencing memorandum, the Government

abandoned its position that the activity of Reaume’s siblings

should be attributed to Reaume and instead argued that the

additional relevant conduct for which Reaume should be held

responsible involved Reaume’s own fraudulent conduct

beyond that charged in the indictment. According to the

Government, Reaume opened numerous fraudulent checking

accounts at otherfinancialinstitutions throughout the country.

The evidence of this activity consisted of: (1) Reaume’s 1991

arrest in Illinois for attempting to purchase clothing with a

bad check; (2) Reaume’s admission, subsequent to the 1991

arrest, that he had made as much as $70,000 per year through

his NSF-checking scheme; (3) Adam Rodriguez’s testimony

that he and Reaume had been traveling the country writing

bad checks for about three years, obtaining thousands of

dollars a month by doing so; (4) numerous canceled checks

obtained by the FBI; (5) a number of fake identification cards

possessed by Reaume; (6) Reaume’s 1993 arrest in Florida for

passing bad checks; and (7) the absence of any record of

legitimate employment. The district court accepted the

Government’s rationale and found Reaume to be responsible

for between $200,000 and $350,000 in losses. 

Reaume contends that this finding was in error for two

reasons. First, Reaume argues that the district court erred by

allowing the Government to change its theory on which the

amount of loss was based without providing him with
No. 02-1112 United States v. Reaume 11

adequate notice. Second, Reaume maintains that even if the

district court had ruled properly in permitting the Government

to advance its new theory, the basis for holding Reaume

responsible for more than $200,000 in losses was too

speculative in nature to satisfy the Government’s burden of

proving Reaume’s responsibility for that sum by a

preponderance of the evidence.

Reaume’s contention that the district court erred in

permitting the Government to change theories between

sentencing hearings is without merit. The rationale on which

the amount of losses was calculated was perfectly reasonable,

and Reaume received notice of this change in position when

a copy of the Government’s second sentencing memorandum

was sent to him. There was no error in the district court’s

decision to permit the Government to proceed on its new

theory regarding relevant conduct.

Similarly, Reaume’s argument that the district court erred

in finding him responsible for over $200,000 in losses is also

without merit. The district court’s findings with respect to

relevant conduct are only disturbed if clearly erroneous,

United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996),

and need only be based on the preponderance of the evidence,

United States v. Meacham, 27 F.3d 214, 216 (6th Cir. 1994).

The evidence brought forth by the Government to substantiate

the relevant conduct is sufficient to support the district court’s

findings.

D. Order of Restitution

The district court ordered Reaume to pay restitution in the

amount of $95,649.26. Reaume was ordered to “pay any

restitution obligations still outstanding according to a monthly

schedule recommended by the probation department and

approved by [the district] court.” Reaume argues that the

district court erred in imposing this amount of restitution

without considering his ability to pay. 

12 United States v. Reaume No. 02-1112

This Court reviews de novo whether a restitution order is

permitted under the law. United States v. Dunigan, 163 F.3d

979, 981 (6th Cir. 1999). Generally, if the restitution order is

legally permissible, the amount ordered is then reviewed for

an abuse of discretion. Id. However, here, because Reaume

did not object to the restitution order at his sentencing, the

sentencing decision is reviewed for plain error. See United

States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). To

establish plain error, a defendant must show: (1) that an error

occurred in the district court; (2) that the error was plain, i.e.,

obvious or clear; (3) that the error affected substantial rights

of the defendant; and (4) that this adverse impact seriously

affected the fairness, integrity, or public reputation of the

judicial proceedings. Id.

The parties agree that a restitution order here is legally

permissible pursuant to the Victim and Witness Protection

Act (“VWPA”). 18 U.S.C. § 3663. Accordingly, the only

issue before this Court with regard to the restitution order is

whether the district court committed plain error in ordering

restitution in the amount of $95,649.26. 

At Reaume’s sentencing, the district court made no

reference to Reaume’s ability to pay the restitution order in

full. In determining the amount of restitution that should be

ordered, a sentencing court is required to consider the factors

listed in 18 U.S.C. § 3664(a). Dunigan, 163 F.3d at 981. The

§ 3664(a) factors include the economic circumstances of the

defendant. The Government argues that all of the information

relevant to the restitution order was contained in the

Presentence Investigation Report. 

While it is true that “a district court must have, at a

minimum, some indication that a defendant will be able to

pay the amount of restitution ordered in order to comply with

18 U.S.C. § 3664(a),” Dunigan, 163 F.3d at 982, this Court

has also held that “[s]pecific findings in the imposition of

restitution are not required.” United States v.

Jackson-Randolph, 282 F.3d 369, 386 (6th Cir. 2002). Given
No. 02-1112 United States v. Reaume 13

the findings in the Presentence Investigation Report that

Reaume has an Associate Degree in Applied Science, lives

with his parents when in the United States, and has only a

very small amount of debt, the amount of restitution ordered

by the district court is not clear error. Moreover, the district

court did not order that the restitution be paid during any

particular period of time. 

A restitution order is permissible even if the defendant

lacks the present ability to pay. United States v. Faasse, 265

F.3d 475, 494 (6th Cir. 2001) (en banc). The burden is on the

defendant to demonstrate that a restitution order far exceeds

his resources and earning potential, United States v. Adams,

214 F.3d 724, 730 (6th Cir. 2000), and Reaume has not met

this burden here. While it may have been preferable for the

district court to have engaged in a more explicit analysis of

Reaume’s ability to pay this restitution amount, it cannot be

said that the failure to do so in this instance meets the

requirements of the plain error standard. 

III.

For the foregoing reasons, we AFFIRM the judgment of

the district court.