United States v. Reginald Thomas ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10283
Plaintiff-Appellee, D.C. No.
2:20-cr-00012-JAM-1
v.
REGINALD LAMONT THOMAS, MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted May 8, 2023**
San Francisco, California
Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.
Defendant-Appellant Reginald Thomas (“Thomas”) appeals the district
court’s judgment of conviction for nine counts of bank fraud under 18 U.S.C.
§ 1344(2) and one count of aggravated identity theft under 18 U.S.C. § 1028A.
Thomas was sentenced to 75 months in prison. On appeal, Thomas challenges the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sufficiency of the indictment and contends the district court erred in its denial of his
motion to dismiss the indictment. We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291. The parties are familiar with the facts of this case, so we do not
recite them here. We review a challenge to the sufficiency of the indictment de novo.
United States v. Mancuso, 718 F.3d 780, 790 (9th Cir. 2013). We affirm.
1. Thomas first argues the indictment was inadequate because the allegations
related to the bank fraud counts failed to specify the false statements Thomas made
and failed to identify a federally insured financial institution, which is a necessary
element of bank fraud under 18 U.S.C. § 1344(2). These arguments lack merit.
First, the indictment properly tracks the language of the bank fraud statute and
includes the proper mens rea standard. Id.; Ninth Circuit Model Criminal Jury
Instructions 15.39; United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995)
(“An indictment that tracks the words of the statute violated is generally sufficient.”).
Second, the indictment is not inadequate because it lacks the specific fraudulent
statements made. It contains allegations that Thomas used “Victim 1’s personal
identifying information” to “impersonate Victim 1” so that Thomas could convince
Wells Fargo employees to give him access to the victim’s bank accounts. No further
details were required. See Mancuso, 718 F.3d at 790 (A defendant is “not entitled
at the time of his indictment to know all of the evidence the government would use
to prove the charges against him.”).
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Third, the indictment properly identified a federally insured institution. An
indictment must be “construed according to common sense” and “read to include
facts which are necessarily implied.” United States v. Buckley, 689 F.2d 893, 899
(9th Cir. 1982). The indictment’s reference to “Wells Fargo, a federally insured
financial institution,” necessarily implies that the alleged fraudulent scheme
involved a federally insured subsidiary of Wells Fargo. Cf. Putnam v. United States,
162 U.S. 687, 690–91 (1896) (holding that the use of the colloquial name “National
Granite State Bank” in an indictment for bank fraud was not an error, even though
the bank’s authorized name was actually “National Granite State Bank of Exeter”).
2. Thomas next contends the indictment was inadequate because it lacked
sufficient factual particularity and failed to identify that Victim 1 was a “real person”
as is a required element of aggravated identity theft under 18 U.S.C. § 1028A. These
arguments lack merit. The indictment properly tracks the language of the aggravated
identity theft statute and includes the proper mens rea standard. Id.; Ninth Circuit
Model Criminal Jury Instructions 15.9; Jackson, 72 F.3d at 1380. We must read an
indictment “as a whole” and “according to common sense.” Buckley, 689 F.2d at
899. Under this standard, the indictment contained “sufficient facts to facilitate the
proper preparation of a defense.” United States v. Cecil, 608 F.2d 1294, 1297 (9th
Cir. 1979) (per curiam). The allegations related to the aggravated identity theft count
include a closed time frame, the geographic area in which the incident allegedly took
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place, and that Thomas used another’s identity “in relation to a felony violation”
under “Title 18, United States Code, Section 1344(2) (Bank Fraud).” No additional
specificity was required. See Mancuso, 718 F.3d at 790.
Finally, the indictment adequately alleged that Victim 1 was a real person.
The indictment refers to Victim 1 as “another person” who had a “means of
identification.” Those details are sufficient to put Thomas on notice that Victim 1 is
a real person, whose existence will be proved at trial. United States v. Doe, 842 F.3d
1117, 1120–21 (9th Cir. 2016) (holding that the government can prove that a fraud
victim is a real person at trial simply by proffering evidence that the defendant used
the victim’s name, date of birth, or social security number to commit the fraud); cf.
Bennett v. United States, 227 U.S. 333, 338 (1913) (holding that the use of a victim’s
alias in an indictment caused the defendant no prejudice). Here, too, no additional
specificity was required. See Mancuso, 718 F.3d at 790.
3. Because the indictment was legally sufficient, we affirm the judgment of
conviction.
AFFIRMED.
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