REVISED, MARCH 29, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-11202

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BONIFACE SULEMAN ODIODIO,

also known as Boniface Odiodio Suleman;

VICTOR AMEACHI UZOH,

also known as Victor Uzoh,

Defendants-Appellants.

Appeal from the United States District Court

For the Northern District of Texas

March 9, 2001

Be fore KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted Boniface Odiodio and Victor Uzoh of bank

fraud, wire f raud, and money laundering. They challenge the

sufficiency of the evidence to sustain their convictions. We are

persuaded tha t the government failed to show that FDIC-insured

banks were put at risk of loss by the defendants’ conduct, and we

rever se the convictions for bank fraud. We find no merit in the

appellants’ other contentions on appeal and aff irm those2

convictions as well as the enhancement of defendant Odiodio’s

sentence for perjury at trial.

I

This case is center ed around a misappropriation of a check

written by KN Ene rgy to Shell Western for just under one million

dollars. The check was stolen from the mail, and altered to be

payable to a Robert Allen Burr.

Someone by mail opened an account at Charles Schwab & Co. in

the name of Robert Allen Burr, using his identifying information,

including social security number and date of birth. The stolen

check was deposited into the account. There was no evidence of who

opened the account or made the deposit. Robert Allen Burr

testified at trial that he had never seen the check nor any of the

bank accounts involved. The government offered no proof of who

stole the check, altered and deposited it.

Money was then transferred by wire from the Schwab account

into an account at the Arlington, Texas branch of Bank One, held by

Shyamal Mukherjee, and into an account at the Arlington, Texas

branch of Wells Fargo, held by Odiodio. Uzoh and Odiodio then

began to move money out of the country from these two accounts.

There were two wire transfer orders from Bank One, both filled

out either by Mukherjee at Uzoh’s behest or by Uzoh himself and

then signed by Mukherjee. They describe the wire transfers as

being “for land rover” and “trip money.” Mukherjee does not appear3

to have been part of the conspiracy. Rather, the evidence

suggested that he was partially duped and partially coerced by Uzoh

into allowing his a ccount to be used. Mukherjee needed money to

register his business with the Airline Reporting Corporation. Uzoh

agreed to supply the money, and procured the information about

Mukherjee’s account ostensibly to facilitate the transfer of money

for Mukherjee’s use. Once Mukherjee noticed the amount of money

that was being moved through his account, Uzoh made veiled threats

against Mukherjee’s family to prevent Mukherjee from interfering.

The Wells Fargo account was in the name of World Capital Trust

Ltd., and was controlled by Odiodio . The application to open it

states the company’s annual sales as $128,271.50. Bank officials

testified that the account never showed any evidence of annual

sales near that amount. There was evidence of five wire transfer

orders from Wells Fargo, filled out by Odiodio. None of the order

forms contain any express representations.

Eventually, Schwab discovered that the opening check was

stolen, and began the process of freezing accounts. Odiodio and

Uzoh were arrested and charged with bank fraud, wire fraud, and

money laundering. A jury found both guilty on all counts. This

appeal followed.

II

We review jury verdicts with great deference. We evaluate the

evidence in the light most favorable to the verdict and “afford the1 United States v. Gray , 96 F.3d 769, 772 (5th Cir. 1996).

2 Id.

3 United States v. Dadi , 235 F.3d 945, 950 (5th Cir. 2000).

4 United States v . Sprick , 233 F.3d 845, 852 (5th Cir. 2000)

(“Under ou r precedent, for the prosecution to prove that the

offense of bank fraud has been committed, it must show no t only

that the money or assets in the custody or control of a financial

institution were obtained by means of fraud but also that doing so

placed the financial instit ution at risk of civil liability.”);

United States v. Briggs , 965 F.2d 10, 12-13 (5th Cir. 1992).

5 S ee United States v. Scott , 159 F.3d 916, 921 (5th Cir.

1998) (“Proof of FDIC insurance is an essential element of the

crime of bank fraud, as well as essential to establish federal

jurisdiction.”).

4 government the benefit of all reasonable inferences and credibility

choices.” 1 The evidence “is sufficient if a rational trier of fact

could have found the essential elements of the offense beyond a

reasonable doubt based upon the evidence presented at trial.” 2

We begin by consid ering the sufficiency of the evidence

supporting the charge of bank fraud. The elements of bank fraud,

under 18 U.S.C. § 1344, are that the defendant knowingly executed

o r attempted to execute a scheme or artifice 1) to defraud a

financial institution or 2) to obtain any property owned by, or

under the custody or control of a financial institution by means of

false or fraudulent pretenses, representations or promises. 3 The

government must also show that the defendant “placed the financial

institution at risk o f civil liability,” 4 and that the bank was

FDIC insured. 56 See Sprick

, 233 F.3d at 853 (“We express no opinion on

whether the bank would have civil liability in these circumstances;

it is sufficient that the government provided no basis at trial or

on appeal for concluding that the bank could have such liability.

It follows under our jurisprudence that Sprick could not be guilty

of bank fraud under 18 U.S.C. § 1344.”).

7 790 F.2d 407 (5th Cir. 1986).

5 Charles Schwab was not insured by the FDIC, but both Bank One

a nd Wells Fargo were insured. We turn to the issue of risk of

loss. 6

We are persuaded that under Texas law, Bank One and Wells

Fargo were not at risk. It is clear under Texas law that there the

banks had no legal liability. We have no occasion to assess “risk”

in the light of legal uncertainty regarding liability. In B radford

Trust Company v. Texas Am erican Bank-Houston, 7 two imposters sent

a forged wire transfer order to the Bradford Trust Company,

ordering it to liquidate certain assets in an account and wire

$800,000 to Texas American Bank, in payment for a set of rare coins

and gold bullion. Bradford Trust did so, without following

internal procedures designed to detect fraud. The customer whose

assets were sold later discovered the fraud and reported it to

Bradford Trust. Bradford Trust reinstated the customer’s account

and sought refund from Texas American. Texas American refused and

Bradfor d Trust sued. The district court applied comparative8 Id. at 408.

9 Id. at 409; see also United States v. Hibernia Nat’l Bank

, 841 F.2d 592, 596 (5th Cir. 1988).

10 Bradford Trust , 790 F.2d at 409-11.

11 Bradford Trust, or the reasons supporting it, would control

any case brought against Bank One or Wells Fargo. The wire

transfers were received at the Arlington, Texas branches of those

banks. Section 4-102(b) of the UCC provides that “[t]he liability

of a bank for action or non-action with respect to an item handled

by it for purposes of presentment, pay ment, or collection is

governed by the law of the place where the bank is located. In the

case of action or non-action by or at a branch or separate office

of a bank, its liability is governed by the law of the place where

the branch or separate office is located.” U.C.C. § 4-102(b)

(20 00). The transfers were received by the Arlington, Texas

6 negligenc e principles and split the loss evenly between the two

banks. 8

We reversed, holding first that comparative negligence

principles do not apply in such commercial cases. 9 We then looked

to Texas banking law and the Texas UCC. Those laws place primary

responsibility on the drawee bank for detecting forged signatures,

because the drawee bank is in the best position to detect the

fraud. Subsequent holders have no opportunity to detect fraud and

therefore do not share responsibility. We also cited two wire

transfer cases in Texas before the adoption of the UCC which

followed the same reasoning. We finally observed that in

commercial transactions, the law strongly favors finality. Thus,

subsequent takers of an instrument or transfer should be free from

claims that the person from whom they took possessed the instrument

fraudulently. 10 Under the authority of B radford Trust

, 11 Charlesbranches of Bank One and Wells Fargo. Section 4-102 would

therefore mandate the application of Texas law. Texas, where one

would expect a suit against Texas banks to be brought, has adopted

this provision of the Uniform Commercial Co de. S ee Tex. Bus. &

C om. Code Ann. § 4.102(b) (2000). Moreover, even if Schwab were

able to secure jurisdiction over Bank One or Wells Fargo and bring

suit in Schwab’s home state of California, California has also

adopted section 4-102. See Cal. Com. Code § 4102 (2000).

12 Although the issue of FDIC insu rance was not raised on

appeal and is therefore not explicitly discussed in the cases cited

by the government, the banks involved are invariably FDIC members.

None of the cases cited by the government involved fraud

perpetrated upon a non-FDIC institution which then transfers funds

to an FDIC bank. See United States v. Hill

, 197 F3d 436 (10th Cir.

1999) (forged check deposited at Norwest bank, which is FDIC

insured); United States v. Barakett

, 994 F.2d 1107 (5th Cir. 1993)

(criminal induced victims to deposit forged checks drawn on Allied

American Bank and Bank One, both of which are FDIC insured); United

States v. Wimbish

, 980 F.2d 312 (5th Cir. 1992) (stolen checks from

one FDIC insured bank forged and deposited into another FDIC

insured bank, with cash back requested), abrogated on other grounds

by Stinson v. United States , 508 U.S. 36 (1993); United States v.

Young

, 952 F.2d 1252 (10th Cir. 1991) (unauthorized account in

employer’s name opened at FDIC insured bank , stolen checks then

deposited in unauthorized account).

7 Schwab, as the entity that initially received the altered

instrument, b ore the full risk of loss in this case. Charles

S chwab had the greater opportunity to detect and prevent t his

fraud. It opened an account and accepted a check of nearly a

million dollars by telephone. Bank One and Wells Fargo, having

never handled the altered instrument, had none.

Texas law assigns the full risk of loss to the bank that dealt

with the forger or his work. All the cases cited by the government

fit this pattern. 12 Where, as here, the FDIC insured banks never

handled the fraudulent instrument, they had no risk of loss. The13 Because we find that no FDIC bank was put at risk, we need

not address the question of whether or not Uzoh and Odiodio made

any misrepresentations to a financial institution. As we held in

Briggs

, the mere act of ordering a wire transfer does not in and of

itself constitute a representation. 965 F.2d at 12. Moreover, the

specific wire order forms a t issue in this case did not contain

preprinted representations to which the issuer subscribed. Odiodio

may have made a misrepresentation to Wells Fargo in his application

to open an account , however, when he stated the annual income of

World Capital Trust.

14 See United States v. Izydore, 167 F.3d 213 , 219 (5th Cir.

1999).

15 Cf. United States v. Hamilton , 694 F.2d 398, 400 (5th Cir.

1982) (sustaining defendant’s conviction for wire fraud, because

“the record is replete with evidence of fraud,” even though

defendant was acquitted on the charge of theft).

8 banks parted with n o money of their own, and are not liable to

replace any money lost by Charles Schwab. 13

The evidence was insuffic ient to sustain Uzoh and Odiodio’s

convictions on the charge of bank fraud, and the judgment of

conviction upon counts 2, 4, 5, and 7 is REVERSED.

III

The elements of wire fraud, under 18 U.S.C. § 1343, are 1) a

scheme to defra ud and 2) the use of, or causing the use of, wire

communications in furtherance of that scheme. 14

Uzoh argues that if the government cannot prove he stole the

altered check, the government cannot conv ict him of wire fraud.

This argument is without merit. Proof of theft is not an element

of wire fraud. 15 The government proved, and Uzoh does not contest,

that Uzoh caused wire communications to be used to transfer money16 See United Sta tes v. Ismoila , 100 F.3d 380, 389 (5th Cir.

1996) (“[U]nlawful intent to defraud may be proven by

circumstantial evidence.”).

9 for his benefit. Therefore, all that remained was for the

government to prove a “scheme to defraud” furthered by the wire

transfers.

Ample circumstantial evidence supports the inference that Uzoh

wired money as part of a scheme to defraud. First, Uzoh arranged

to have money wired from an account falsely opened in the name of

Robert Allen Burr to an account held by Shyamal Mukherjee; he then

arranged to have Mukherjee wire the money oversees to accounts

controlled by Uzoh. Not only did these events associate Uzoh with

the theft and alteration of the KN Energy check, even if they did

not prove that he himself stole and altered it, but they also look

conspicuously like an attempt to hide the proceeds of an illegal

transaction. Second, Uzoh made these arrangements in part by

threatening the safety of Mukherjee’s family. Third, Uzoh had no

legitimate employment or business sufficient to explain his access

to this volume of money. This circumstantial evidence, taken in

the light most favorable to the verdict, could support a jury’s

determination that the wire transfers were part of a scheme to

defraud. 16

Odiodio argues that since he did not commit bank fraud, he

could not have committed wire f raud. This is meritless. Bank

fraud is not an element of wire fraud.17 See Ismoila , 100 F.3d at 389.

18 United States v. Garza , 42 F.3d 251, 253 (5th Cir.

1994)(internal quotation marks omitted).

10 Ample circumstantial evidence also supports an inference that

Odiodio wired money as part of a scheme to defraud. Odiodio also

received money from the Schwab account, and then promptly wired the

money out of the country. This ties Odiodio to the theft of the

check with every signal of an attempt to launder money. Odiodio

also made inconsi stent and implausible statements to explain the

source of the funds. Odiodio once claimed that he was sending the

money to repay Ginaton Holdings for an overpayment; yet he also

threatened to sue Wells Fargo bank for the same money, claiming it

was due to him under a contract. Odiodio had no legitimate

employment or business sufficient to explain his access to this

large sum of money. This circumstantial evidence, again taken in

the light most favorable to the verdict, supports t he jury’s

verdict. 17

IV

The elements of money laundering, under 18 U.S.C. § 1956, are

that “the defendant 1) conducted or attempted to conduct a

financial transaction, 2) w hich the defendant knew involved the

proceeds of unlawful activity, 3) with the intent

. . . to conceal

or disguise the nature, location, source, ownership, or control of

the p roceeds of unlawful activity.” 1 8 The government proved, and11

neither defendant contests, that both d efendants conducted a

financial transaction.

Uzoh argues that without proving that he knew who stole the KN

Energy check, the government cannot prove that he knew the money he

dealt with was the proceeds of unlawful activity or that he

intended to conceal its unlawful nature. There was ample evidence,

however, to prove that Uzoh knew these funds were not legitimate,

even if he did not know the name of the original thief. Uzoh’s

decision to move the funds through Muk herjee’s account and then

oversees, plus the threats he made to keep Mukherjee from asking

questions, plus the absence of any plausible explanation for Uzoh’s

access to this large sum of money all support an inference that he

knew the money was stolen.

Odiodio argues that without convicting him of bank fraud, the

government cannot show he knew the funds were unlawful and intended

to conceal its unlawful nature. Bank fraud, however, is not an

element of money laundering. Again, the circumstantial evidence

amply all owed the jury to infer that Odiodio knew this money was

stole n and attempted to move it out of the country in a modern

electronic flight for the border.

Viewing t he evidence in the light most favorable to the

verdict, we cannot say that a rational jury could not have inferred

scienter.

V19 See United S tates v. Storm , 36 F.3d 1289, 1295 (5th Cir.

1994).

20 United States v. Dunnigan , 507 U.S. 87, 95 (1993).

12 We turn finally to Odiodio’s challenge to his sentence

enhancement for obstructi on of justice. The district court,

applying section 3C1.1 of the Sentencing Guidelines, imposed a twolevel increase in Odiodio’s sentencing level, on the grounds that

Odiodio obstructed justice by perjuring himself. We review this

fact finding for clear error. 1 9 The district court followed the

Supreme Court’s guidance and “revie w[ed] the evidence and make

independent findings necessary to establish a willful impediment to

obstruction of justice,” and further addressed “each element of the

alleged perjury in a separate and clear finding.” 20 Specifically,

the district court listed fourteen instances of perjury by Odiodio:

1. He wired $100,000 to Ginaton Holdings and $60,000 to

Westmins ter Bank because Victor Uzoh told him a client

wanted a refund of $100,000 sent to the Bank of Cyprus;

2. Uzoh told him the $100,000 was to go to the Bank of

Cyprus because they made an error;

3. The information in defendant’s exhibit 34 helped him

to make the wire transfers Uzoh told him about;

4. Nothing clicked in his mind that maybe this was

illegal or some sort of scam;

5. He did not know he was sending out stolen money;

6. He did not know the money he was dealing with was the

proceeds of a crime;21 See id. at 96.

22 See, e.g., United States v. Morris

, 131 F.3d 1136, 1140 (5th

Cir. 1997) (upholding enhancement when defendant testified that he

“did not deliberately swerve his ve hicle,” based on testimony by

numerou s witnesses that his action had to have been deliberate)

(emphasis added); United States v. Vaquero

, 997 F.2d 78, 87-88 (5th

Cir. 1993) (upholding enhancement when defendant testified “that he

never intended to deal drugs,” where ample witness testimony proved

to the contrary).

13 7. It did not dawn on him that anything was amiss until

April 22;

8. After his accounts were frozen, it still did not

occur to him that the money m ight be the proceeds of a

crime;

9. He did not devise a scheme to defraud financial

institutions;

10. He did not know the $100,000 he wired was stolen

money;

11. At the time he heard about Ginaton and Westminster

Bank, he thought he was embarking upon a legitimate

business endeavor;

12. He did not intend to defraud a bank;

13. In his mind, he was not dividing the spoils of

stolen property with Uzoh;

14. When he sent the money to London, he was not trying

to launder money.

Odiodio argues that his statements denied m ens rea

, a nd to

penalize him for making those statements denies him the right to

deny his guilt. The right to testify, however, does not include a

right to lie. 2 1 We have, at least twice, upheld sentence

enhancements for defendants who denied possessing a culpable mental

state, 22 and we have no difficulty doing so again today.23 Dunnigan , 507 U.S. at 97.

14 Odiodio also argues that the trial court could not know his

mental state, and therefore could not kno w he lied. The risk of

“incorrect findings of perjury b y district courts,” however, is

“inherent in a system which insists on the value of testimony under

oath.” 23 We find no error.

VI

We REVERSE Uzoh and Odiodio’s convictions in Counts 2, 4, 5,

and 7 on the charges of bank fraud. We AFFIRM Uzoh and Odiodio’s

convictions on the charges of wire fraud and money laundering and

the district court’s decision to enhance Odiodio’s sentence for

obstruction of justice. We REMAND to the district court for

resentencing without counts 2, 4, 5, and 7.

ENDRECORD15

KING, Chief Judge, specially concurring:

I concur in the judgment and in all of Judge Higginbotham’s

fine opinion with t he exception of Part II, which deals with the

i nsufficiency of the evidence to sustain the convictions of U zoh

and Odiodio for bank fraud. I agree that the evidence is

insufficient to sustain those convictions, but rather than ruling

that, as a matter of law, the banks could not be at risk, I would

simply say that under the evidence in this case, there was no basis

on which the jury could have found that the banks were at risk.