United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1842NE

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the District of Nebraska

*

Ronald E. Ponec, *

*

Appellant. *

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Submitted: October 23, 1998

Filed: December 18, 1998

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Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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RICHARD S. ARNOLD, Circuit Judge.

Ronald E. Ponec was convicted on eleven counts of violating the federal bankfraud statute, 18 U.S.C. § 1344, and sentenced to twenty-seven months in prison, the

bottom of the Guidelines range. He appeals, claiming that the conduct proved against

him, conduct that he does not substantially contest, did not, even when viewed in the

light most favorable to the government, amount to a violation of the statute. He also
The Hon. William G. Cambridge, Chief Judge, United States District Court for 1

the District of Nebraska.

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contends that the District Court erred in declining to give him a two-point reduction 1

for acceptance of responsibility. For the most part, we affirm. We hold, among other

things, that the crime of bank fraud under 18 U.S.C. § 1344 does not require a showing

that the defrauded bank suffered a financial loss.

I.

The facts relevant to the issues raised on appeal may be briefly stated.

Mr. Ponec worked for a company called Pro-Data Computer Services, Inc. A number

of checks payable to the order of Pro-Data came into his possession. Defendant

deposited these checks, totaling about $238,000.00, into his personal bank account at

the Douglas County Bank and Trust Company. He had no authority to divert these

funds into his own account. The funds ought to have been deposited in Pro-Data’s

account, at the same bank.

When the defendant made deposits into his own account of checks made to ProData, he used blank deposit tickets, showing his personal account number. Defendant

had available to him pre-printed deposit tickets showing both the account name and the

number, but he did not use these when depositing Pro-Data checks into his own

account. In this way, the fact that Pro-Data checks were being deposited to the credit

of Ponec, rather than to the credit of Pro-Data, was made less conspicuous. The idea

was that the bank tellers receiving the deposits would simply look at the deposit

number and deposit the checks into the account bearing that number, not noticing that

the checks were payable to Pro-Data instead of to Ronald E. Ponec, the account holder.

The indictment contained eleven counts. Counts 1 through 7 alleged, with

respect to seven separate checks made out to Pro-Data, deposit of these checks in
During a small portion of the time period covered by the conduct charged, a

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predecessor version of this statute was in effect. See Section 961(k) of the Act of

August 9, 1989, Pub. L. No. 101-73, 103 Stat. 500. There are no relevant differences

between the two versions of the statute. The only change has been to increase the

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defendant’s account in the manner we have described. Counts 8 through 11 of the

indictment had to do with checks written by Mr. Ponec on this account. Each of these

four counts related to a check, in each case drawn by Mr. Ponec and applied to his own

personal use, rather than to the benefit of Pro-Data. The case was tried to a jury, and

defendant was found guilty on all eleven counts.

Defendant argues on appeal that the indictment failed to state an offense against

the United States, and that the proof similarly failed to establish an offense. Central

to both points is the defendant’s contention that the government did not prove that

Douglas County Bank and Trust Company lost anything. Pro-Data was the victim of

the crime, so far as financial loss was concerned. No funds of the bank were taken,

and it was not part of the scheme that any would be. In order to consider this argument

properly, we first set out the words of the statute:

Whoever 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;

shall be fined not more than $1,000,000 or imprisoned not more than 30

years, or both.

18 U.S.C. § 1344.2
maximum term of imprisonment from twenty years to thirty years. See Section 2504(j)

of the Act of November 29, 1990, Pub. L. No. 101-647, 104 Stat. 4861.

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The words of the statute themselves convincingly refute the argument now urged

by defendant. Paragraph (2) of the statute refers to a scheme to obtain monies or other

property of a financial institution. Under this paragraph, some loss to the institution,

or at least an attempt to cause a loss, appears to be required. The other portion of the

statute, however, paragraph (1), simply prohibits “defraud[ing] a financial institution

. . ..” Paragraph (1) says nothing about loss to the institution, either actual or intended.

So long as one has “defraud[ed]” a financial institution, one has violated the statute,

whether or not loss has occurred. Otherwise, there seems to be no reason for Congress

to have set out two separate ways in which bank fraud could be committed under this

statute.

In fact, we have specifically so held. In United States v. Solomonson, 908 F.2d

358 (8th Cir. 1990), the defendant was charged with, among other things, directing the

transfer of funds from certain corporate accounts to his personal accounts, without

having the right or authority to do so. He was convicted of both mail fraud and bank

fraud. On appeal, defendant argued that he could not be convicted of bank fraud

because the bank in question had not suffered any financial loss. We squarely rejected

this argument, saying, among other things:

We have difficulty believing that . . . a successful

scheme to defraud that does not result in financial loss to a

bank is not within the conduct proscribed by section 1344.

Thus, we hold that the government was not required to

prove that [the bank] suffered a financial loss.
The case was decided under a pre-1989 version of Section 1344. Again,

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however, there are no material differences between the statute as it was interpreted in

Solomonson and the versions of the statute that we must apply in the present case. See

908 F.2d at 364 n.4.

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908 F.2d at 365.3

Defendant also argues that he did not make any false statement to the bank, so

there could be no scheme to defraud. Williams v. United States, 458 U.S. 279 (1982),

is cited for this proposition. Williams was a prosecution under 18 U.S.C. § 1014,

which makes it a crime knowingly to make any false statement or report for the

purpose of influencing the action of certain financial institutions. The proof showed

that Williams had engaged in a check-kiting scheme. He would maintain a number of

accounts in federally insured banks, would draw a check far in excess of his account

balance in one bank, and would then deposit it in his account in the other, then

reversing the process between his accounts. The Supreme Court held that this conduct

did not violate Section 1014, because, the Court thought, a check does not amount to

a factual assertion that the drawer of the check has sufficient funds on deposit to cover

it. A check is simply an order to a drawee bank to make payment, in default of which

the drawer of the check will be liable for the face amount. On this view, no

misrepresentation, and therefore no false statement or report, is made when an

insufficient-funds check is deposited.

The Supreme Court’s opinion in Williams of course is binding on us, but we do

not think it reaches the present case. We grant that the government needed to prove

that Mr. Ponec deliberately made false representations to the bank. Otherwise, there

would be no scheme or artifice to defraud. We cannot agree, however, that no

misrepresentation or misstatement occurred under the facts of this case. When

Mr. Ponec offered for deposit checks made to Pro-Data and specified that the deposit

be made into his personal account, he was representing to the bank that the proceeds
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of the checks rightfully belonged to him, or, at least, that he had been authorized by

Pro-Data to deal with the checks in this way. Neither statement was true. Had the

bank known the truth, it certainly would not have wanted its tellers to put the checks

into Mr. Ponec’s own account. When Mr. Ponec wrote his own account number on the

deposit tickets, he was falsely representing that he had the right to put these checks into

his own account. We think this conduct is a scheme or artifice to defraud within the

meaning of Section 1344, and that nothing in the Williams opinion, which deals only

with the issue of insufficient funds, is to the contrary. Defendant points to language

in Williams stating that “a check is not a factual assertion at all, and therefore cannot

be characterized as ‘true’ or ‘false.’ ” 458 U.S. at 284. But the false assertion in the

present case appeared not on the checks, but on the deposit ticket, which implicitly

represented that defendant was dealing with the checks as he had a right to do. We

hold, therefore, that there is no infirmity in the defendant’s conviction on counts 1

through 7.

We think the case is otherwise as to the remaining counts, 8 through 11. These

counts involve not the deposit of checks into the account, but the drawing of checks

on defendant’s personal account. The four checks alleged in these four counts total

$12,897.71. The government’s theory is that when the defendant wrote these checks

and presented them to the bank for payment, he was falsely representing that he had

a right to do so. (As to these counts, notice that defendant could be found guilty,

assuming proper proof, even if the statute were interpreted to require proof of loss to

the bank, because, under paragraph (2) of the statute, obtaining money owned by, or

under the custody or control of, a financial institution, by means of false statements,

is a crime.) Here, defendant argues that the evidence against him is insufficient for a

fundamental reason: the proof did not show the source of the funds used to pay the

four checks in question, beyond the fact that they were paid out of the defendant’s

personal account. A considerable amount of the money in that account, defendant

argues, was unquestionably his own, and not Pro-Data’s. Accordingly, these checks
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might have been paid with defendant’s own money, in which event there would have

been no false representation and no improper obtaining of money.

A factual representation in the brief filed by the United States in this Court

convinces us to agree with defendant’s position on this point. The government’s brief,

page 14, admits that “[o]n two separate occasions, Ponec had a legitimate deposit to

make to his own account on the same day as he intended to deposit a check made out to

Pro-Data.” Thus, the government has conceded that at least some of the money in the

account belonged to Mr. Ponec and could legitimately be drawn on by him for personal

purposes. We do not know the precise amounts, but the government had the burden of

proof on this issue. We hold that this burden was not met, and that the evidence is

insufficient to justify a rational conclusion that it was Pro-Data’s money, and not his

own, that defendant drew on when he wrote the four checks alleged in counts 8 through

11. Accordingly, the convictions on those counts must be reversed.

II.

In view of the reversal on four of the eleven counts, the case has to go back for

re-sentencing. Defendant will be entitled at least to credit for the special assessment on

each of the four courts reversed. Whether his sentence would otherwise be affected, we

do not know, leaving that to the District Court to decide on remand. We do think it

appropriate, however, to address defendant’s contention that the District Court abused

its discretion in denying him a two-level reduction for acceptance of responsibility,

because this issue could occur again at the time of re-sentencing. This sort of decision

is highly fact-intensive, and addresses itself to the sound discretion of the District Court,

which necessarily will have a much better feel of the circumstances of the case and the

attitude of the defendant than we do. It is sufficient for present purposes to note that,

at the time of sentencing, the defendant, though conceding that he had done the acts

alleged, attempted to blame the whole thing on his wife. The
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District Court could reasonably have determined that defendant did not truly accept his

own responsibility for the crime.

As to counts 1 through 7, the judgment is affirmed. As to counts 8 through 11,

the judgment is reversed, and the cause remanded with instructions to dismiss these

counts of the indictment. In addition, the sentence imposed is vacated, and the cause

remanded for re-sentencing in a manner not inconsistent with this opinion.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.