UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4066

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ISHMAIL BAH, a/k/a Idrisss Gabiss Mansaray,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, Senior

District Judge. (3:13-cr-00153-JRS-1)

Submitted: September 15, 2014 Decided: October 28, 2014

Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Frances H. 

Pratt, Elizabeth W. Hanes, Assistant Federal Public Defenders, 

Richmond, Virginia, for Appellant. Dana J. Boente, United

States Attorney, Michael C. Moore, Assistant United States

Attorney, Ann M. Reardon, Special Assistant United States 

Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Ishmail Bah pleaded guilty to bank fraud, in violation 

of 18 U.S.C. § 1344 (2012), as charged in Count One of a sixcount indictment. The district court sentenced him to eighteen 

months’ imprisonment. Bah appeals, challenging the validity of 

his guilty plea. For the reasons that follow, we affirm the 

criminal judgment.

Bah’s sole claim on appeal is that his guilty plea was 

not knowing and voluntary because the district court failed to 

explain the nature of the bank fraud offense to which he pled 

guilty, as required by Rule 11(b)(1)(G) of the Federal Rules of 

Criminal Procedure. Because he did not move in the district 

court to withdraw his guilty plea, we review Bah’s claim for 

plain error. United States v. Martinez, 277 F.3d 517, 525 (4th 

Cir. 2002). “To establish plain error, [Bah] must show that an 

error occurred, that the error was plain, and that the error 

affected his substantial rights.” United States v. Muhammad, 

478 F.3d 247, 249 (4th Cir. 2007). “In the Rule 11 context, 

this means that [Bah] must show a reasonable probability that, 

but for the error, he would not have entered the plea.” United 

States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) 

(internal quotation marks and citation omitted). Even if Bah 

satisfies these requirements, “correction of the error remains 

within our discretion, which we should not exercise . . . unless 
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the error seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings.” Muhammad, 478 F.3d at 249 

(internal quotation marks and citation omitted).

“In explaining the nature of the charges to the 

defendant . . . the trial court is given a wide degree of 

discretion in deciding the best method to inform and ensure the 

defendant’s understanding.” United States v. DeFusco, 949 F.2d 

114, 117 (4th Cir. 1991) (citation omitted). Moreover, 

“[a]lthough the defendant must receive notice of the true nature 

of the charge, . . . [he] need not receive this information at 

the plea hearing itself . . . [and may base the plea on] 

information received on occasions before the plea hearing.” Id.

(internal quotation marks and citations omitted).

Here, Bah pled guilty to bank fraud in violation of 18 

U.S.C. § 1344, which prohibits the knowing execution or attempt 

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.

18 U.S.C. § 1344. A defendant violates § 1344(1) if he “(1) 

. . . knowingly execute[s] or attempt[s] a scheme or artifice to 

defraud a financial institution, (2) he [does] so with intent to 

defraud, and (3) the institution [is] a federally insured or 
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chartered bank.” United States v. Adepoju, 756 F.3d 250, 255 

(4th Cir. 2014). A defendant who knowingly executes or attempts 

a scheme or artifice “‘to obtain any of the moneys . . . or 

other property owned by, or under the custody or control of, a 

[federally insured or chartered] financial institution,’” and 

does so “‘by means of false or fraudulent pretenses, 

representations or promises,’” violates § 1344(2). Loughrin v. 

United States, 134 S. Ct. 2384, 2389 (2014) (quoting § 1344). 

“The major difference between the subsections is that § 1344(1) 

focuses on how the defendant’s conduct affects a bank, while 

§ 1344(2) focuses solely on the conduct.” Adepoju, 756 F.3d at 

255. Unlike § 1344(1), intent to defraud a bank is not an 

element of a § 1344(2) offense. Loughrin, 134 S. Ct. at 2389-

90.

Count One of the indictment, in charging that Bah:

did knowingly, unlawfully, and with intent to defraud, 

execute and attempt to execute a scheme and artifice 

to defraud and obtain money, funds, and property owned 

by and under the custody and control of financial 

institutions (as that term is defined in Title 18, 

United States Code, Section 20) by means of materially 

false and fraudulent pretenses and promises[,]

set forth the elements of both § 1344(1) and § 1344(2). Bah 

acknowledged at the Rule 11 hearing that he received a copy of 

the indictment, discussed the charges with his attorney, and 

understood the charges against him. Furthermore, although the 

plea agreement does not include a description of the nature of 
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the charges or the elements of the offense, the Statement of 

Facts, referenced in the plea agreement, stipulated that the 

allegations in Count One of the indictment were true. During

the Rule 11 hearing, the court asked, “Do you mean by placing 

your signature on the Statement of Facts not only that you have 

read it and understood it, but also, that to the best of your 

knowledge, the information contained in the Statement of Facts 

is true and accurate; is that correct?” Bah answered, “Yes.” 

We conclude that, through the colloquy at the Rule 11 hearing, 

the district court ensured that Bah was informed of the nature 

of the charges prior to the plea hearing and, in doing so, 

satisfied the requirements of Rule 11(b)(1)(G). Cf. United 

States v. Wilson, 81 F.3d 1300, 1307-08 (4th Cir. 1996) (finding 

no error where district court failed to inform defendant of the 

elements of the offense, leaving decision to recite elements of 

the offense to district court’s discretion).

In any event, any omission did not affect Bah’s 

substantial rights. Bah argues that intent to defraud a bank is 

an element of the offense under both § 1344(1) and (2). Had he 

understood the nature of the bank fraud offense or its elements, 

Bah continues, “he likely would not have entered a guilty plea 

and would have gone to trial instead, given the great 

difficulties the government faces in proving elements such as 

intent and knowledge.” 
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When Bah filed his brief in May 2014, he did not have 

the benefit of the Supreme Court’s decision in Loughrin, where 

the Court specifically held that intent to defraud a bank is not 

an element of § 1344(2). His argument does not hold up after 

Loughrin, because the broadly worded indictment reflected an 

intent to prosecute under either § 1344(1) or § 1344(2). Even 

if Bah had been charged exclusively with violating § 1344(1), he 

had notice of the nature of the offense because Count One of the 

indictment, which he acknowledged under oath he discussed with 

counsel and understood, charged that Bah engaged in conduct with 

“intent to defraud.” He also stipulated in the Statement of 

Facts that, “with intent to defraud . . .[he] executed a scheme 

and artifice to defraud a financial institution.” 

Finally, we note that, in exchange for his guilty plea 

on Count One, the charges on five other counts were dismissed 

and Bah received a two-level reduction in his offense level for 

acceptance of responsibility, thereby reducing his Guidelines 

range. In light of the significant benefit Bah gained by 

pleading guilty to a single count in the six-count indictment, 

we conclude that there is not a reasonable probability that, if 

the court had more explicitly advised him about the nature of 

the charge, he would have not have pleaded guilty. Massenburg, 

564 F.3d at 343. 
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Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid in the decisional 

process. 

AFFIRMED