## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1842NE

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the District of Nebraska * Ronald E. Ponec, * * Appellant. *

___________ Submitted: October 23, 1998 Filed: December 18, 1998

___________ Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARN OLD, Circuit Judges.

___________ RICHARD S. ARNOLD, Circuit Judge.

Ronald E. Pone c was convicted on eleven counts of violating the federal bankfraud s tatute, 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 alsoThe Hon. William G. Cambridge, Chief Judge, United States District Court for 1 the District of Nebraska. -2- contends that the District Court erred in declining to give him a two-point reduction 1 for acceptance of respon sibility. For the most part, we affirm. We hold, among other things, that the crime of bank fraud under 18 U.S.C. § 1344does not require a showing that the defrauded bank suffered a financial loss.

I.
The fa cts relevant to the issues raised on appeal may be briefly stated

. Mr. Ponec worked for a company cal led Pro-Data Computer Services, Inc. A number of checks payable to the order of Pro-Data came into his possession. Defendan t deposited these ch ecks, totaling about $238,000.00, into his personal bank account at the Douglas County Bank and Trust Company. He had no authority to divert thes e fu nds 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 b oth the account name and the number, but he did not use these when depositing Pro-Data checks into his ow n account. In this way, th e fact that Pro-Data checks were being deposited to the credit of Ponec, rat

her 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 deposi t 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 inDuring a small portion of the time period covered by the conduct charged, a 2 predec essorversion of this statute was in effect. See Section 961(k) of the Act o f 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 th e -3- defendant’s account in the manner we have described. Counts 8 through 11 of th e indictment had to do with checks writ ten 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 indi ctment failed to state an offense against the United States, and that the proof similarly failed to establish an offense. Centra l to both points is the defendant’s contention that the government did not prove that Dougla s County Bank and Trust Company lost anything. Pro-Data was the victim of the cri me, 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 , asse ts, securities, or other property owned by, or under the cu stody or control of, a financial institution, by means o f 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. 2maximum 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. -4- The words of the statute themselves convincingly refute th e 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 attem

pt 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 th e institution, either actual or intended. So l ong as one has “defraud[ed]” a financial institution, one has violated the statute , whether or not loss has occurred. Otherwise, there seems to b e no reason for Congress to have set ou t 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 charg ed with, among other things, directing the transfer o f funds from certain corporate accounts to his personal accounts, withou t h aving 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 frau d because the bank in question had not suffered anyfinancial loss. We squarely rejected this argument, saying, among other things:

We have difficulty believing that . . . a successfu l s c heme 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 t o prove that [the bank] suffered a financial loss.The case was decided under a pre-1989 version of Section 1344. Again , 3 however, there areno material differences between the statute as it was interpreted in Solomonson

and the versions of the statute that we must ap ply in the present case. See 908 F.2d at 364 n.4. -5- 908 F.2d at 365. 3

Defend ant also argues that he did not make any false statement to the bank, so there could be no scheme to defraud. Willi ams v. United States , 458 U.S. 279 (1982), is cited forthis proposition. Williams was a prosecution under 18 U.S.C. § 1014 , which makes i t a crime knowingly to make any false statement or report for th e purpos e of influencing the action of certain financial institutions. The proof showe d that Williams had eng aged 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, the n 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 o rder to a drawee bank to make payment, in default of which the drawer of t he check will be liable for the face amount. On this view, n o misr epresentation, and therefore no false statement or report, is made when a n insufficient-funds check is deposited. The Supreme Court’s opinion i n 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 tha t Mr. Ponec deliberately made false representations to the bank. Otherwise, there would be no s cheme or artifice to defraud. We cannot agree, however, that n o misr epresentation or misstatement occurred under the facts of this case. Whe n Mr. Ponec offered f

or 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-6-

of the check s rightfully belonged to him, or, at least, that he had been authorized b y Pro-Data t o deal with the checks in this way. Neither statement was true. Had th e 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 toput 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 languag e in W illiams 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 implicitl y represented that defendant was dealing with the checks as he had a right to do. W e hold, therefore, that there is no infirmity in the defendant’s conviction on counts 1 through 7.
We think the case is otherwi se as to the remaining counts, 8 through 11. These count s involve not the deposit of checks into the account, but the drawing of check s ondefendant’s personal account. The four checks alleged in these four counts tota l $12,897.7 1. The government’s theory is that when the defendant wrote these checks
an dpresented them to the bank for payment, he was falsely representing that he ha d
a rig ht to do so. (As to these counts, notice that defendant could be found guilty , a s suming 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 underth e 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 rea son: the proof did not show the source of the funds used to pay th e four checks in question, beyond the fact that they were paid out of the defendant’ s personal ac count. A considerable amount of the money in that account, defendan t argues, was unquestionably his own, and not Pro-Data’s. Accordingly, these checks-7-

mig ht have been paid with defendant’s own money, in which event there would hav e been no false representation and no improper obtaining of money.

A factua l representation in the brief filed by the United States in this Court convinces us toagree with defendant’s position on this point. The government’s brief, page 14, ad mits that “[o]n two separate occasions, Ponec had a legitimate deposit t o 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 t his issue. We hold that this burden was not met, and that the evidence i s ins ufficient

to justify a rational conclusion that it was Pro-Data’s money, and not hi s own, that defendant drew on when he wro te the four checks alleged in counts 8 through 11. Accordingly, the convictions on those counts must be reversed.

II.

Inview of the reversal on four of the eleven counts, the case has to go back for re-sentencing. Defendant will be entit led at least to credit for the special assessment on each of the four courts reversed. Whether his sente nce would otherwise be affected, we do no t know, leaving that to the District Court to decide on remand. We do think i t appropriate , however, to address defendant’s contention that the District Court abused its dis cretion 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 necessari ly 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 act s alleged, attempted to blame the whole thing on his wife. The-8-

District Court could re asonably 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 judgm ent is reversed, and the cause remanded with instructions to dismiss thes e counts o f the indictment. In addition, the sentence imposed is vacated, and the caus e 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.