In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-1004 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

JESSICA ARONG O’BRIEN, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division. 

No. 17-cr-00239-1 — Thomas M. Durkin, Judge. 

____________________ 

ARGUED FEBRUARY 19, 2020 — DECIDED MARCH 13, 2020 

____________________ 

Before WOOD, Chief Judge, and FLAUM and RIPPLE, Circuit 

Judges. 

FLAUM, Circuit Judge. A jury found Jessica A. O’Brien 

guilty of both bank fraud and mail fraud affecting a financial 

institution based on her participation in a 2004-to-2007 mortgage fraud scheme. She appeals her convictions, arguing that 

the charges against her were duplicitous and that under a 

properly pled indictment the statute of limitations would 

have barred three of the four alleged offenses. She also argues 
2 No. 19-1004 

that the district court should not have admitted evidence offered to prove those time-barred offenses and that there was 

insufficient evidence to support the jury’s guilty verdict. 

We affirm. The government appropriately acted within its 

discretion to allege an overarching scheme to commit both 

bank fraud and mail fraud affecting a financial institution. 

Each count included an execution of the fraudulent scheme 

within the applicable ten-year statute of limitations, and the 

jury’s guilty verdict rested upon properly admitted and sufficient evidence of the charged offenses. 

I. Background 

On April 11, 2017, a grand jury returned a two-count indictment charging O’Brien with mail fraud in violation of 18 

U.S.C. § 1341 (Count I) and bank fraud in violation of 18 

U.S.C. § 1344 (Count II). Both counts alleged a 2004-to-2007 

scheme in which O’Brien misrepresented her income and liabilities to cause lenders to issue and refinance loans related to 

two investment properties O’Brien owned on the south side 

of Chicago: one at 625 West 46th Street (the “46th Street property”), and another at 823 West 54th Street (the “54th Street 

property”). During the alleged scheme, O’Brien was a licensed attorney with a background and experience in the real 

estate industry, including as a registered loan originator, 

mortgage consultant, licensed real estate broker, and owner 

of O’Brien Realty LLC, a licensed Illinois real estate company. 

The indictment alleged that the scheme was comprised of 

four transactions: (1) in 2004, O’Brien “fraudulently obtained 

mortgage loan proceeds to purchase” the 46th Street property 

by submitting mortgage documents with false statements regarding her income and liabilities; (2) in 2005, O’Brien, with 
No. 19-1004 3 

co-defendant Maria Bartko as the loan originator, “fraudulently refinanced [O’Brien’s] mortgage loans” on the 46th 

Street and 54th Street properties by submitting applications 

with false statements regarding O’Brien’s income and employment; (3) in 2006, O’Brien “fraudulently obtained a commercial line of credit” by submitting an application with false 

statements about her realty company’s revenue and profit 

“and used those loan proceeds to maintain the 46th Street and 

54th Street properties”; and (4) in 2007, O’Brien and Bartko 

“agreed that O’Brien would sell the 46th Street and 54th Street 

properties to Bartko” using “Buyer A,” Christopher Kwan, as 

“a straw buyer whom O’Brien and Bartko knew would be 

fraudulently qualified for mortgage loans.” The indictment 

also alleged that O’Brien and Bartko knew “that false information would be submitted to lenders, including Citibank, 

N.A., to qualify [Kwan] for the mortgage loans.” Some of her 

misrepresentations were made on HUD-1 forms (as the name 

suggests, furnished by the U.S. Department of Housing and 

Urban Development), which detail the costs and fees associated with a mortgage loan and are used in closing a property 

sale. See United States v. Bouchard, 828 F.3d 116, 121 n.2 (2d Cir. 

2016). 

Within each count, the indictment charged only one execution of the scheme: In Count I, the indictment alleged that 

on April 16, 2007, O’Brien and Bartko mailed a payoff check 

relating to the purchase of the 46th Street property; and in 

Count II, the indictment alleged that also on April 16, 2007, 

O’Brien caused Citibank, N.A. (“Citibank”), a financial institution, to provide $73,000 to fund a mortgage for Kwan’s purchase of the 46th Street property. The indictment described 

the 2004, 2005, and 2006 transactions as part of an overarching 
4 No. 19-1004 

scheme rather than as separate executions of mail or bank 

fraud. 

At trial, the government presented evidence that O’Brien 

had falsely represented her income and liabilities and made 

other misrepresentations and omissions when buying, refinancing, and maintaining the 46th Street and 54th Street properties. After the jury found O’Brien guilty on both counts and 

the district court denied O’Brien’s post-trial motions, O’Brien 

appealed. 

II. Discussion 

O’Brien argues that the district court erred by denying (1) 

her motions to dismiss the indictment based on duplicity and 

the statute of limitations, and (2) her motions for judgment of 

acquittal and a new trial based on the insufficiency of the evidence. 

A. Duplicity and Statute of Limitations 

We review de novo the district court’s denial of O’Brien’s 

motions to dismiss the indictment on grounds of duplicity 

and the statute of limitations. See United States v. McGowan, 

590 F.3d 446, 456 (7th Cir. 2009) (statute of limitations); see also

United States v. Pansier, 576 F.3d 726, 734 (7th Cir. 2009) (duplicity). 

 1. Duplicity 

The district court did not err in denying O’Brien’s motion 

to dismiss based on duplicity because each count of the indictment, “‘fairly interpreted[,]’ alleges a ‘continuing course 

of conduct, during a discrete period of time.’” United States v. 

Davis, 471 F.3d 783, 790–91 (7th Cir. 2006) (quoting United 

States v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982)). A count is 
No. 19-1004 5 

duplicitous if it “charges two or more distinct offenses 

within” the count. United States v. Miller, 883 F.3d 998, 1003 

(7th Cir. 2018) (citation omitted). A count is not duplicitous, 

however, if it charges the commission of a single offense 

through different means, Fed. R. Crim. P. 7(c)(1), or if it 

charges acts that “comprise a continuing course of conduct 

that constitutes a single offense,” Miller, 883 F.3d at 1003 (citation omitted). 

The mail and bank fraud statutes prohibit schemes to defraud, see 18 U.S.C. §§ 1341 & 1344, which can include a 

“broad range of conduct,” United States v. Doherty, 969 F.2d 

425, 429 (7th Cir. 1992). “Schemes to defraud ... often are 

multi-faceted and therefore the various means used in committing the offense may be joined without duplicity.” United 

States v. Zeidman, 540 F.2d 314, 318 (7th Cir. 1976). Under the 

mail and bank fraud statutes, “for each count of conviction, 

there must be an execution” of the scheme to defraud, but 

“the law does not require the converse: each execution need 

not give rise to a charge in the indictment.” United States v. 

Hammen, 977 F.2d 379, 383 (7th Cir. 1992). The government 

has the discretion to “allege only one execution of an ongoing 

scheme that was executed numerous times.” Id.

The indictment alleged a single scheme to defraud lenders 

that consisted of four related transactions in which O’Brien 

used lies and concealment to obtain money from lenders for 

the 46th Street and 54th Street properties and for her own personal gain. Specifically, the indictment alleged that O’Brien 

lied to lenders to: (1) buy the 46th Street property in 2004; (2) 

refinance loans on the 46th Street and 54th Street properties 

in 2005; (3) obtain a loan to maintain the 46th Street and 54th 
6 No. 19-1004 

Street properties in 2006; and (4) sell the 46th Street and 54th 

Street properties in 2007. 

O’Brien insists that “the quartet of isolated and disconnected transactions involving different times, people, types of 

transactions, different lenders and different alleged false material statements gives rise to the clear conclusion that there 

was no single continuous scheme to defraud.” For example, 

O’Brien asserts that the government contended that she 

falsely certified that the 46th Street property was her primary 

residence, but the indictment made no similar allegations regarding her 54th Street purchase. She also emphasizes that the 

four transactions involved different parties, and that neither 

Citibank nor its wholly-owned subsidiary and mortgage 

lending arm, CitiMortgage, was involved in three of the transactions. O’Brien therefore contends that “[t]he four alleged 

transactions are so different and distinct that the only commonality is ‘financial gain’ or something equally general.” 

The relevant transactions, however, all involved: (1) at 

least one of a pair of investment properties on Chicago’s south 

side (the 46th Street and 54th Street properties); (2) O’Brien; 

(3) lies in loan documents; (4) the same class of victims (lenders); and (5) the same goal of obtaining financing related to 

the two properties for personal enrichment. The government 

acted appropriately within its discretion to charge the transactions as different means for carrying out an overarching 

scheme to defraud. Cf. Davis, 471 F.3d at 791 (holding there 

was no duplicity where indictment charged “ongoing and 

continuous course of conduct, accomplished through three 

different methods,” repeated numerous times over the years, 

all involving the same defendant); United States v. Prieto, 812 
No. 19-1004 7 

F.3d 6, 10, 12 (1st Cir. 2016) (finding no duplicity where indictment alleged three-year mortgage rescue program 

scheme involving 86 transactions with 30 mortgage lenders, 

in which defendant engaged in sham transfers of properties 

to straw purchasers who quitclaimed properties to defendant’s organization, and noting that schemes to defraud “may 

harm different groups of victims at different times” (citing 

United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001))). 

 2. Statute of Limitations 

The district court also did not err in denying O’Brien’s motion to dismiss based on the statute of limitations because the 

indictment alleged that each count was executed on April 16, 

2007, which fell within the applicable ten-year statute of limitations. We determine the applicable statute of limitations, 

and whether the charges were timely brought, based on the 

face of the indictment. See United States v. White, 610 F.3d 956, 

958 (7th Cir. 2010) (“An indictment is reviewed on its face, regardless of the strength or weakness of the government’s 

case.”). The statute of limitations for bank fraud is ten years. 

18 U.S.C. § 3293(1). The statute of limitations for mail fraud is 

generally five years, id. § 3282(a), but a ten-year statute of limitations applies for fraud that “affects a financial institution,” 

id. § 3293(2). 

The indictment plainly alleged that the scheme to defraud 

affected Citibank, which O’Brien does not dispute qualified 

as a financial institution. The mail fraud count (Count I) alleged that Citibank required mortgage loan applicants to provide truthful information, which was material to its approval 

and funding of loans, and that O’Brien knew “that false information would be submitted to lenders, including Citibank, 

N.A., to qualify [Kwan] for the [2007] loans.” The bank fraud 
8 No. 19-1004 

count (Count II) similarly charged an offense that affected a 

financial institution, as we explain below. A ten-year statute 

of limitations therefore applied to both counts. The ten-year 

period started to run from the date of the alleged executions, 

April 16, 2007. The grand jury returned the indictment on 

April 11, 2017, before the ten-year period expired. 

B. Sufficiency of the Evidence 

The district court did not err in denying O’Brien’s motions 

for a judgment of acquittal or a new trial because there was 

sufficient evidence to support O’Brien’s convictions for mail 

fraud affecting a financial institution under 18 U.S.C. §§ 1341 

& 3293(2) (Count I) and for bank fraud under 18 U.S.C. 

§ 1344(2) (Count II). We review de novo the denial of a motion 

for a judgment of acquittal, which “should be granted only 

when the evidence is insufficient to sustain the conviction.” 

United States v. James, 464 F.3d 699, 705 (7th Cir. 2006). The 

evidence is sufficient if “any rational trier of fact could have 

found the essential elements of a crime beyond a reasonable 

doubt.” United States v. Kelerchian, 937 F.3d 895, 907 (7th Cir. 

2019) (citation omitted). We “overturn a verdict only when 

the record contains no evidence, regardless of how it is 

weighed, from which the jury could find guilt beyond a reasonable doubt.” Id. (citation omitted). We review for an abuse 

of discretion the denial of a motion for a new trial, which 

should be granted “only if the evidence preponderates heavily against the verdict, such that it would be a miscarriage of 

justice to let the verdict stand.” United States v. Swan, 486 F.3d 

260, 266 (7th Cir. 2007) (internal quotations marks, brackets, 

and citation omitted). 
No. 19-1004 9 

 1. Mail Fraud Affecting a Financial Institution (Count I) 

To convict O’Brien of mail fraud under 18 U.S.C. § 1341, 

the government had to prove beyond a reasonable doubt that 

O’Brien: (1) participated in a scheme to defraud; (2) intended 

to defraud; and (3) used the mails in furtherance of the 

scheme. United States v. Seward, 272 F.3d 831, 835 (7th Cir. 

2001). Because the government relied on the ten-year statute 

of limitations applicable to mail fraud that “affects a financial 

institution,” see 18 U.S.C. § 3293(2), it was also required to establish that the fraud affected a financial institution, which 

can be established by a showing that the fraud exposed the 

financial institution to “a new or increased risk of loss,” 

United States v. Serpico, 320 F.3d 691, 694–95 (7th Cir. 2003). 

The government needed to show that O’Brien intended for 

her scheme to defraud “someone,” but “a financial institution 

[did] not need to be the intended victim.” United States v. 

Marr, 760 F.3d 733, 744 (7th Cir. 2014); see also United States v. 

Pelullo, 964 F.2d 193, 216 (3d Cir. 1992) (noting that 18 U.S.C. 

§ 3293(2) applies to a “broader class of crimes” than those 

“where the financial institution is the object of the fraud”). 

Viewing the evidence in a light most favorable to the prosecution, O’Brien devised a scheme to defraud and made numerous false statements in furtherance of the scheme, including by inflating her income and concealing her biggest liability to obtain a loan to buy the 46th Street property in 2004; 

inflating the income from her realty company to refinance the 

loans on the 46th Street and 54th Street properties in 2005; inflating revenue and profits for her realty company to obtain a 

loan to maintain the 46th Street and 54th Street properties in 

2006; and selling the 46th Street and 54th Street properties in 

2007 to a straw buyer, while making kickback payments to the 
10 No. 19-1004 

true buyer without disclosing the identity of the buyer or the 

kickback payments to the lender. 

The evidence further demonstrated that O’Brien fraudulently caused Citibank to provide Kwan the funding for two 

loans in connection with the 2007 purchase of the 46th Street 

property: one loan in the amount of $73,000 and another in 

the amount of $292,000. O’Brien’s misrepresentations in connection with these transactions were established by, among 

other things, the false and fraudulent loan applications 

O’Brien submitted; documents related to the purchase and 

sale of the properties; the false HUD-1 forms; evidence of 

O’Brien’s and her realty company’s actual income; and testimony of Citibank vice president Judy Taylor. Citibank was 

not only exposed to an increased risk of loss; it suffered an 

actual loss as a result of the 2007 loans because it had to foreclose on the 46th Street property and ultimately sold the property at a “significant loss.”1

The parties agree that—during the time relevant to this 

case—Citibank qualified as a financial institution, but its 

1 O’Brien appears to suggest that, even though her husband was not 

a co-borrower on one of the loans, her husband’s income should have been 

counted when calculating her income to qualify for the loan. O’Brien has 

pointed to no authority explaining why the law compels such a result or 

otherwise explained how this circumstance undermines confidence in the 

jury’s conclusion that she harbored the requisite fraudulent intent. 

O’Brien also contends that a witness from Chase testified that “it was possible that the Chase branch loan officer may have made mistakes when 

she entered O’Brien’s LLC loan information” in connection with one of the 

loans. Such a speculative possibility, however, does not provide grounds 

for overturning the jury’s verdict. 
No. 19-1004 11 

wholly-owned subsidiary, CitiMortgage, did not.2 O’Brien 

maintains that CitiMortgage, not Citibank, was the lender for 

the $73,000 loan in April 2007.3 She also concedes, however, 

that “countless exhibits presented by the government and defense offered conflicting testimony/exhibits regarding 

whether [CitiMortgage] or Citi[bank] funded” the $73,000 

loan, and that related exhibits “cut both ways.” This is precisely the kind of conflicting evidence that is within the jury’s 

province to resolve. 

This is not a case like United States v. Bennett, where “the 

government relied solely on [the mortgage lender]’s status as 

a wholly-owned subsidiary [of a financial institution], and 

presented no evidence indicating what kind of parentsubsidiary relationship actually existed.” 621 F.3d 1131, 1139 

(9th Cir. 2010). Nor is this a case like United States v. Banyan, 

where the government did not “make any effort at trial to 

prove that the loans were funded by the mortgage companies’ 

parent corporations, which were banks.” 933 F.3d 548, 551 

(6th Cir. 2019). 

Here, the government presented substantial evidence beyond Citibank’s parent-subsidiary relationship with 

CitiMortgage to support the conclusion that Citibank funded 

the $73,000 and $292,000 loans. Citibank vice president Taylor, for example, testified that the $73,000 loan was a Citibank 

2 See Bouchard, 828 F.3d at 124 (“Prior to 2009, the term ‘financial institution’ was defined to include insured depository institutions of the FDIC, 

but not mortgage lenders.”); see also 18 U.S.C. § 20(1) (amended in May 

2009 to include non-FDIC mortgage lenders in definition of “financial institution”). 

3 O’Brien does not appear to contest that the $292,000 for the other 

April 2007 loan came from Citibank. 
12 No. 19-1004 

product and that “all of the money used to fund both the 

$292,000 and the $73,000 loan came from a Citibank account.” 

Several documents additionally identified Citibank as the 

lender on the $73,000 loan, such as the note, mortgage, HUD1 settlement statement, truth-in-lending disclosure, affiliated 

business arrangement disclosure, and homeowner’s insurance documents. O’Brien’s signature on some of those documents is assurance enough that she saw them; the evidence of 

her link to other documents is not as direct. 

The evidence on Count I was therefore sufficient to establish that O’Brien devised and participated in a fraudulent 

scheme, that she intended to defraud CitiMortgage, and that 

the fraud affected Citibank. Cf. United States v. Mullins, 613 

F.3d 1273, 1278–79 (10th Cir. 2010) (affirming application of 

ten-year statute of limitations for fraud affecting a financial 

institution where jury heard evidence “explaining how fraudulent information on a loan application increases the risk of 

loss to the lender and its parent bank”); United States v. Bouyea, 

152 F.3d 192, 195 (2d Cir. 1998) (per curiam) (holding there 

was sufficient evidence that financial institution was affected 

where employee of wholly-owned subsidiary testified that 

subsidiary borrowed money for transaction at issue from parent financial institution); Pelullo, 964 F.2d at 215–16 (disposing 

of defendant’s assumption that “a fraud perpetrated against 

a financial institution’s wholly owned subsidiary cannot affect the parent”). O’Brien does not contest the sufficiency of 

the evidence regarding the April 16, 2007 mailing in furtherance of the scheme. The mail fraud conviction is sound. 
No. 19-1004 13 

 2. Bank Fraud (Count II) 

The evidence was also sufficient to convict O’Brien of bank 

fraud under 18 U.S.C. § 1344(2). Section 1344 provides that a 

defendant may be found guilty of bank fraud if she: 

knowingly executes, or attempts to execute, 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. 

Count II of the indictment charged O’Brien with violating 

§ 1344, which the government was permitted to prove under 

subsection (1) or (2). See United States v. LeDonne, 21 F.3d 1418, 

1427 (7th Cir. 1994) (reasoning that the government may 

charge both sections of § 1344 in same count). While the government must prove that the defendant had the specific intent 

to defraud a financial institution under § 1344(1), proof of 

such intent is not required under § 1344(2). Loughrin v. United 

States, 573 U.S. 351, 356–57 (2014) (“[N]othing in [§ 1344(2)] 

additionally demands that a defendant have a specific intent 

to deceive a bank. And indeed, imposing that requirement 

would prevent § 1344(2) from applying to a host of cases falling within its clear terms.”). 

Rather, to obtain a conviction under § 1344(2), the government may demonstrate that the defendant knowingly “deceiv[ed] a non-bank custodian into giving up bank property 
14 No. 19-1004 

that it holds.” Id. at 357. In Loughrin, the Supreme Court held 

that “the text of § 1344(2) preclude[d]” the defendant’s argument that “his intent to deceive ran only to Target,” a nonfinancial institution, “and not to any of the banks on which 

his altered checks were drawn.” Id. at 356. The Court reasoned 

that applying § 1344(2) only “in the (presumably rare) circumstance in which the fraudster’s intent to deceive extended beyond the custodian to the bank itself ... would ... function as 

an extra-textual limit on the clause’s compass.” Id. at 357. The 

defendant nevertheless “must at least know that the property 

belongs to or is under the custody or control of a bank.” Bouchard, 828 F.3d at 126. Hence, to overturn the bank fraud conviction, O’Brien must convince us that no rational jury could 

infer that she knowingly deceived CitiMortgage into giving 

up Citibank funds. 

We conclude that a rational jury could find—based on 

O’Brien’s experience in the real estate industry and with Citibank in particular, as well as her intimate involvement in the 

fraudulent scheme and the 2007 transactions—that O’Brien 

knew that the funds for the April 2007 loans originated from 

Citibank. In Bouchard, the Second Circuit overturned a mortgage fraud conviction under § 1344(2) because the government had not established that the defendant knew that the 

funds fraudulently obtained from the mortgage lenders belonged to or were under the custody or control of a bank. 828 

F.3d at 126–27. The Second Circuit noted that “the Government might have been able to prove that [the defendant] 

knew that money from mortgage lenders came from banks by 

virtue of his knowledge of the industry” but ”failed to make 

this argument or proffer evidence of [the defendant]’s exten-
No. 19-1004 15 

sive knowledge of the real estate and mortgage lending industry as a reason to convict him at trial.” Id. at 127. The government provided precisely such evidence here. 

O’Brien had an extensive background and experience in 

the real estate industry, including as a registered loan originator, mortgage consultant, licensed real estate broker, and 

owner of O’Brien Realty LLC, a licensed Illinois real estate 

company. She had prior experience working with Citibank in 

particular. Moreover, when Citibank vice president Taylor 

was asked about “a typical day at Citi back in 2007,” she explained that “Citibank would provide funds to CitiMortgage” 

to fund loans in a similar way that it funded the April 2007 

loans. Pairing O’Brien’s extensive expertise in the real estate 

and mortgage lending industry with the fact that Citibank 

funded the April 2007 loans as it would in the ordinary course 

of its business supports the inference that O’Brien knew the 

funding would originate from Citibank. 

Such an inference is buttressed by evidence of O’Brien’s 

intimate involvement in the fraudulent scheme and especially 

her involvement in the April 2007 transactions. O’Brien acted 

as both the seller and seller’s attorney, was present for the 

closings, was closely involved with the sale, and prepared the 

closing statements. The HUD-1 form O’Brien signed listed 

Kwan’s $73,000 loan, and the HUD-1 form for that loan expressly identified Citibank as the lender. One might not normally expect a seller in an arms-length real estate transaction 

to have access to information to which the buyer has access, 

but this was no arms-length transaction. O’Brien and Kwan 

were co-participants in a scheme to defraud in which O’Brien 

and Bartko used Kwan as a straw purchaser. O’Brien, Kwan, 

and Bartko had signed notarized “Acknowledgement & 
16 No. 19-1004 

Agreements” forms (undisclosed in the HUD file and to the 

lender) that identified both Kwan and Bartko as buyers. 

O’Brien also made undisclosed payments to both Kwan and 

Bartko, including a $4,000 check to Kwan dated the day of the 

46th Street closing, which Kwan endorsed over to Bartko. 

Hence, the jury could reasonably have connected 

O’Brien’s background and experience with the other evidence 

regarding the relationship between Citibank and CitiMortgage, as well as the identification of Citibank as the lender on 

loan documents and O’Brien’s participation in the fraudulent 

scheme (and in the 2007 transactions in particular), to conclude that O’Brien knew the funds originated from Citibank. 

Cf. United States v. Rabuffo, 716 F. App’x 888, 898–99 (11th Cir. 

2017) (affirming § 1344 conviction where it was reasonable to 

infer that defendant “knew the fraudulent loan applications 

would place SunTrust Bank at a risk of harm” based on defendant’s background as “experienced real estate developer,” 

defendant’s involvement in scheme, similarity of names between SunTrust Bank and its wholly-owned subsidiary (SunTrust Mortgage), and defendant’s previous interactions with 

SunTrust Bank). 

The defendant in Loughrin violated § 1344(2) “because he 

made false statements, in the form of forged and altered 

checks, that a merchant would, in the ordinary course of business, forward to a bank for payment.” 573 U.S. at 366. Similarly, O’Brien’s fraudulent misrepresentations were “the 
No. 19-1004 17 

mechanism naturally inducing a ... custodian of bank property ... to part with money in its control.” Id. at 363. 4 Her bank 

fraud conviction must stand. 

 3. Materiality 

O’Brien raises a new argument on appeal that “there were 

no mail or bank fraud material misrepresentations because 

Citi[bank]’s loss risk was extraordinarily de minimis.” According to O’Brien, Citibank’s risk of loss due to this scheme represented only a small fraction of the $550 million “that 

[CitiMortgage] (and its subsidiaries) received ... on a daily 

basis to fund its mortgage loan docket.” O’Brien did not raise 

this argument in the district court and has therefore forfeited 

it, so our review is for plain error. See United States v. Walsh, 

723 F.3d 802, 807 (7th Cir. 2013). In any event, there was no 

error, plain or otherwise. 

Materiality requires only the tendency or capability of influencing the victim; there is no requirement that the misrepresentations must have actually influenced the decisionmaker or that the decision-maker in fact relied on the misrepresentations. See United States v. Roberts, 534 F.3d 560, 571 (7th 

Cir. 2008). O’Brien has pointed to no authority supporting her 

novel argument that fraudulent misstatements are material 

only if they affect more than a de minimis proportion of a victim’s funds.

Here, the jury heard evidence that if O’Brien had disclosed 

O’Brien Realty LLC’s true financial status, her application for 

a commercial loan would have been denied. The jury also 

4 Because there was sufficient evidence to sustain the bank fraud conviction under § 1344(2), we need not reach the question of whether we 

could also sustain O’Brien’s conviction under § 1344(1). 
18 No. 19-1004 

heard that, had O’Brien disclosed to Citibank that Kwan was 

a straw buyer and Bartko the true buyer, it would have raised 

a “red flag” and affected Citibank’s risk analysis. The misstatements were therefore material. Cf. United States v. Reynolds, 189 F.3d 521, 525–26 (7th Cir. 1999) (affirming conviction 

and finding sufficient evidence of materiality “[b]ecause [defendant]’s false statements regarding his financial condition 

could clearly influence a bank deciding whether to approve a 

loan (even if they did not in fact influence the decision)”). 

C. Admissibility of Evidence 

Finally, the district court did not abuse its discretion in admitting evidence relating to the 2004, 2005, and 2006 transactions as direct evidence of the fraudulent scheme alleged. See 

United States v. Quiroz, 874 F.3d 562, 569 (7th Cir. 2017) (reviewing evidentiary rulings for abuse of discretion). “[T]he 

fact that only one or two executions fell within the Statute of 

Limitations does not detract from the entire pattern of loans’ 

being a scheme, and renders [the defendant] no less culpable 

for the entire scheme.” United States v. Longfellow, 43 F.3d 318, 

325 (7th Cir. 1994). We need not conduct a Federal Rule of Evidence 404(b) analysis because “if the evidence is admitted as 

direct evidence of the charged offense, Rule 404(b) is not applicable.” United States v. Adams, 628 F.3d 407, 414 (7th Cir. 

2010). 

O’Brien tacks on that the district court should not have admitted the May 2007 quit claim deeds because those deeds are 

outside of the statute of limitations. Those deeds, however, 

are dated within the applicable ten-year statute of limitations, 

which began to run in April 2007. In any event, the district 

court appropriately admitted those deeds as direct evidence 

demonstrating that Kwan (the straw buyer) quit claimed the 
No. 19-1004 19 

properties to Bartko (the true buyer) shortly after the closings. 

They are admissible even though they are dated after the executions of the scheme to defraud. See United States v. Ajayi, 

808 F.3d 1113, 1120 (7th Cir. 2015) (stating that the government may introduce uncharged acts of bank fraud after execution of scheme to support its case). The district court did 

not err in admitting the contested evidence. 

III. Conclusion 

For the foregoing reasons, we AFFIRM O’Brien’s convictions.