Loughrin v. United States ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LOUGHRIN v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 13–316. Argued April 1, 2014—Decided June 23, 2014
A part of the federal bank fraud statute, 18 U.S. C. §1344(2), makes it
a crime to “knowingly execut[e] a scheme . . . to obtain” property
owned by, or under the custody of, a bank “by means of false or
fraudulent pretenses.” Petitioner Kevin Loughrin was charged with
bank fraud after he was caught forging stolen checks, using them to
buy goods at a Target store, and then returning the goods for cash.
The District Court declined to give Loughrin’s proposed jury instruc-
tion that a conviction under §1344(2) required proof of “intent to de-
fraud a financial institution.” The jury convicted Loughrin, and the
Tenth Circuit affirmed.
Held: Section 1344(2) does not require the Government to prove that a
defendant intended to defraud a financial institution. Pp. 4–15.
(a) Section 1344(2) requires only that the defendant intend to ob-
tain bank property and that this end is accomplished “by means of” a
false statement. No additional requirement of intent to defraud a
bank appears in the statute’s text. And imposing that requirement
would prevent §1344(2) from applying to cases falling within the
statute’s clear terms, such as frauds directed against a third-party
custodian of bank-owned property. Loughrin’s construction would al-
so make §1344(2) a mere subset of §1344(1), which prohibits any
scheme “to defraud a financial institution.” That view is untenable
because those clauses are separated by the disjunctive “or,” signaling
that each is intended to have separate meaning. And to read clause
(1) as fully encompassing clause (2) contravenes two related interpre-
tive canons: that different language signals different meaning, and
that no part of a statute should be superfluous. Pp. 4–6.
(b) Loughrin claims that his view is supported by similar language
in the federal mail fraud statute and by federalism principles, but his
2 LOUGHRIN v. UNITED STATES
Syllabus
arguments are unpersuasive. Pp. 7–15.
(1) In McNally v. United States, 483 U.S. 350, this Court inter-
preted similar language in the mail fraud statute, §1341—which
served as a model for §1344—to set forth just one offense, despite the
use of the word “or.” But the two statutes have notable textual dif-
ferences. The mail fraud law contains two phrases strung together in
a single, unbroken sentence, whereas §1344’s two clauses have sepa-
rate numbering, line breaks, and equivalent indentation—all indica-
tions of separate meaning. Moreover, Congress likely did not intend
to adopt McNally’s interpretation when it enacted §1344, because at
that time (three years before McNally) every Court of Appeals had in-
terpreted the word “or” in the mail fraud statute in its usual, disjunc-
tive sense. And while McNally found that unique features of the mail
fraud statute’s history supported its view, the legislative history sur-
rounding the adoption of §1344 points the other way. Pp. 7–9.
(2) Loughrin also contends that without an element of intent to
defraud a bank, §1344(2) would apply to every minor fraud in which
the victim happens to pay by check. This, he says, would unduly ex-
pand the reach of federal criminal law into an area traditionally left
to the States. But this argument ignores a significant textual limit
on §1344(2)’s reach: The criminal must acquire (or attempt to ac-
quire) the bank property “by means of” the misrepresentation. That
language limits §1344(2)’s application to cases (like this one) in which
the misrepresentation has some real connection to a federally insured
bank, and thus to the pertinent federal interest. Pp. 9–15.
710 F.3d 1111, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined,
and in which SCALIA and THOMAS, JJ., joined as to Parts I and II, Part
III–A except the last paragraph, and the last footnote of Part III–B.
SCALIA, J., filed an opinion concurring in part and concurring in the
judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion con-
curring in part and concurring in the judgment.
Cite as: 573 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–316
_________________
KEVIN LOUGHRIN, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 23, 2014]
JUSTICE KAGAN delivered the opinion of the Court.
A provision of the federal bank fraud statute, 18 U.S. C.
§1344(2), makes criminal a knowing scheme to obtain
property owned by, or in the custody of, a bank “by means
of false or fraudulent pretenses, representations, or prom-
ises.” The question presented is whether the Government
must prove that a defendant charged with violating that
provision intended to defraud a bank. We hold that the
Government need not make that showing.
I
Petitioner Kevin Loughrin executed a scheme to convert
altered or forged checks into cash. Pretending to be a
Mormon missionary going door-to-door in a neighborhood
in Salt Lake City, he rifled through residential mailboxes
and stole any checks he found. Sometimes, he washed,
bleached, ironed, and dried the checks to remove the
existing writing, and then filled them out as he wanted;
other times, he did nothing more than cross out the name
of the original payee and add another. And when he was
lucky enough to stumble upon a blank check, he completed
it and forged the accountholder’s signature. Over several
months, Loughrin made out six of these checks to the
2 LOUGHRIN v. UNITED STATES
Opinion of the Court
retailer Target, for amounts of up to $250. His modus
operandi was to go to a local store and, posing as the
accountholder, present an altered check to a cashier to
purchase merchandise. After the cashier accepted the
check (which, remarkably enough, happened time after
time), Loughrin would leave the store, then turn around
and walk back inside to return the goods for cash.
Each of the six checks that Loughrin presented to Tar-
get was drawn on an account at a federally insured bank,
including Bank of America and Wells Fargo. Employees
in Target’s back office identified three of the checks as
fraudulent, and so declined to submit them for payment.
Target deposited the other three checks. The bank refused
payment on one, after the accountholder notified the bank
that she had seen a man steal her mail. Target appears to
have received payment for the other two checks, though
the record does not conclusively establish that fact. See
Brief for United States 6, 7, n. 3.
The Federal Government eventually caught up with
Loughrin and charged him with six counts of committing
bank fraud—one for each of the altered checks presented
to Target. The federal bank fraud statute, 18 U.S. C.
§1344, provides as follows:
“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, as-
sets, securities, or other property owned by, or un-
der the custody or control of, a financial institution,
by means of false or fraudulent pretenses, represen-
tations, or promises;
shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.”1
——————
1A “financial institution,” as defined in 18 U.S. C. §20, includes a
Cite as: 573 U. S. ____ (2014) 3
Opinion of the Court
Ruling (for a reason not material here) that Circuit prece-
dent precluded convicting Loughrin under the statute’s
first clause, §1344(1), the District Court allowed the case
to go to the jury on the statute’s second, §1344(2).
The court instructed the jury that it could convict
Loughrin under that clause if, in offering the fraudulent
checks to Target, he had “knowingly executed or at-
tempted to execute a scheme or artifice to obtain money or
property from the [banks on which the checks were drawn]
by means of false or fraudulent pretenses, representations,
or promises.” App. 7. Loughrin asked as well for another
instruction: The jury, he argued, must also find that he
acted with “intent to defraud a financial institution.” App.
to Pet. for Cert. 43a. The court, however, declined to give
that charge, and the jury convicted Loughrin on all six
counts.
The United States Court of Appeals for the Tenth Cir-
cuit affirmed. See 710 F.3d 1111 (2013). As relevant
here, it rejected Loughrin’s argument that “a conviction
under §1344(2) requires proof that he intended to defraud
the banks on which the [altered] checks had been drawn.”
Id., at 1115. That intent, the court reasoned, is necessary
only under the bank fraud law’s first clause. The court
acknowledged that under its interpretation, §1344(2)
“cast[s] a wide net for bank fraud liability,” but concluded
that such a result is “dictated by the plain language of the
statute.” Id., at 1117.
We granted certiorari, 571 U. S. ___ (2013), to resolve a
Circuit split on whether §1344(2) requires the Government
to show that a defendant intended to defraud a federally
insured bank or other financial institution.2 We now
——————
federally insured bank of the kind involved here.
2 Compare 710 F.3d 1111, 1116 (CA10 2013) (case below) (§1344(2)
does not require intent to defraud a bank); United States v. Everett, 270
F.3d 986, 991 (CA6 2001) (same), with United States v. Thomas, 315
F.3d 190, 197 (CA3 2002) (§1344(2) requires such intent); United
4 LOUGHRIN v. UNITED STATES
Opinion of the Court
affirm the Tenth Circuit’s decision.
II
We begin with common ground. All parties agree, as do
we and the Courts of Appeals, that §1344(2) requires that
a defendant “knowingly execute[ ], or attempt[ ] to exe-
cute, a scheme or artifice” with at least two elements.
First, the clause requires that the defendant intend “to
obtain any of the moneys . . . or other property owned by,
or under the custody or control of, a financial institution.”
(We refer to that element, more briefly, as intent “to ob-
tain bank property.”) Brief for United States 11, 17, 20,
22, 32; Brief for Petitioner 30–31. And second, the clause
requires that the envisioned result—i.e., the obtaining of
bank property—occur “by means of false or fraudulent
pretenses, representations, or promises.” See Brief for
United States 21–22; Reply Brief 18–19. Loughrin does
not contest the jury instructions on either of those two
elements. Nor does he properly challenge the sufficiency
of the evidence supporting them here.3
The single question presented is whether the Govern-
ment must prove yet another element: that the defendant
——————
States v. Kenrick, 221 F.3d 19, 29 (CA1 2000) (same); United States v.
Jacobs, 117 F.3d 82, 92–93 (CA2 1997) (same).
3 Loughrin argued to the jury that the evidence failed to show that he
intended to obtain bank property: He claimed that once he “obtained
cash from Target, . . . he was indifferent to whether Target ever sub-
mitted the check to a bank or whether a bank ever made payment on
it.” Brief for Petitioner 32; see Tr. 233–235; App. to Pet. for Cert. 46a.
The jury rejected that contention, as did the District Court on a motion
for judgment of acquittal. See Record 168. In his appeal, Loughrin
waived the argument by conceding that if the District Court correctly
instructed the jury on §1344(2)’s elements, “then there was sufficient
evidence to convict.” Appellant’s Opening Brief in No. 11–4158 (CA10),
p. 34. And although Loughrin’s briefs to this Court attempt to cast
doubt on the jury’s finding that he intended to obtain bank property,
see Brief for Petitioner 30–32, that issue is not “fairly included” in the
question his certiorari petition presented, Sup. Ct. R. 14.1(a).
Cite as: 573 U. S. ____ (2014) 5
Opinion of the Court
intended to defraud a bank. As Loughrin describes it, that
element would compel the Government to show not just
that a defendant intended to obtain bank property (as the
jury here found), but also that he specifically intended to
deceive a bank. See Reply Brief 17. And that difference,
Loughrin claims, would have mattered in this case, be-
cause his intent to deceive ran only to Target, and not to
any of the banks on which his altered checks were drawn.
But the text of §1344(2) precludes Loughrin’s argument.
That clause focuses, first, on the scheme’s goal (obtaining
bank property) and, second, on the scheme’s means (a
false representation). We will later address how the
“means” component of §1344(2) imposes certain inherent
limits on its reach. See infra, at 11–14. But nothing in
the clause additionally demands that a defendant have a
specific intent to deceive a bank. And indeed, imposing
that requirement would prevent §1344(2) from applying to
a host of cases falling within its clear terms. In particular,
the clause covers property “owned by” the bank but in
someone else’s custody and control (say, a home that the
bank entrusted to a real estate company after foreclosure);
thus, a person violates §1344(2)’s plain text by deceiving a
non-bank custodian into giving up bank property that it
holds. Yet under Loughrin’s view, the clause would not
apply to such a case except in the (presumably rare) cir-
cumstance in which the fraudster’s intent to deceive ex-
tended beyond the custodian to the bank itself. His pro-
posed inquiry would thus function as an extra-textual
limit on the clause’s compass.
And Loughrin’s construction of §1344(2) becomes yet
more untenable in light of the rest of the bank fraud stat-
ute. That is because the first clause of §1344, as all agree,
includes the requirement that a defendant intend to “de-
fraud a financial institution”; indeed, that is §1344(1)’s
whole sum and substance. See Brief for United States 18;
Brief for Petitioner 8. To read the next clause, following
6 LOUGHRIN v. UNITED STATES
Opinion of the Court
the word “or,” as somehow repeating that requirement,
even while using different words, is to disregard what “or”
customarily means. As we have recognized, that term’s
“ordinary use is almost always disjunctive, that is, the
words it connects are to be given separate meanings.”
United States v. Woods, 571 U. S. ___, ___ (2013) (slip op.,
at 14). Yet Loughrin would have us construe the two
entirely distinct statutory phrases that the word “or” joins
as containing an identical element. And in doing so, his
interpretation would make §1344’s second clause a mere
subset of its first: If, that is, §1344(2) implicitly required
intent to defraud a bank, it would apply only to conduct
already falling within §1344(1). Loughrin’s construction
thus effectively reads “or” to mean “including”—a defini-
tion foreign to any dictionary we know of.
As that account suggests, Loughrin’s view collides as
well with more general canons of statutory interpretation.
We have often noted that when “Congress includes partic-
ular language in one section of a statute but omits it in
another”—let alone in the very next provision—this Court
“presume[s]” that Congress intended a difference in mean-
ing. Russello v. United States, 464 U.S. 16, 23 (1983)
(citation omitted). And here, as just stated, overriding
that presumption would render §1344’s second clause
superfluous. Loughrin’s view thus runs afoul of the “car-
dinal principle” of interpretation that courts “must give
effect, if possible, to every clause and word of a statute.”
Williams v. Taylor, 529 U.S. 362, 404 (2000) (citation
omitted).4
——————
4 Loughrin responds that our interpretation of the statute creates a
converse problem of superfluity: Clause (2), he says, would emerge so
broad as to wholly swallow Clause (1). See Reply Brief 7. But that is
not right. The Courts of Appeals, for example, have unanimously
agreed that the Government can prosecute check kiting (i.e., writing
checks against an account with insufficient funds in a way designed to
keep them from bouncing) only under Clause (1), because such schemes
Cite as: 573 U. S. ____ (2014)
7
Opinion of the Court
III
Loughrin makes two principal arguments to avoid the
import of the statute’s plain text. First, he relies on this
Court’s construction of comparable language in the federal
mail fraud statute to assert that Congress intended
§1344(2) merely to explicate the scope of §1344(1)’s prohi-
bition on scheming to defraud a bank, rather than to cover
any additional conduct. And second, he contends that
unless we read the second clause in that duplicative way,
its coverage would extend to a vast range of fraudulent
schemes, thus intruding on the historic criminal jurisdic-
tion of the States. Neither argument is without force, but
in the end, neither carries the day.
A
“[D]espite appearances,” Loughrin avers, §1344(2) has
no independent meaning: It merely specifies part of what
§1344(1) already encompasses. Brief for Petitioner 8. To
support that concededly counterintuitive argument,
Loughrin invokes our decision in McNally v. United
States, 483 U.S. 350 (1987), interpreting similar language
in the mail fraud statute, 18 U.S. C. §1341. That law,
which served as a model for §1344, see Neder v. United
States, 527 U.S. 1, 20–21 (1999), prohibits using the mail
to further “any scheme or artifice to defraud, or for obtain-
ing money or property by means of false or fraudulent
pretenses, representations, or promises.” Loughrin rightly
explains that, despite the word “or,” McNally understood
that provision as setting forth just one offense—using the
mails to advance a scheme to defraud. The provision’s
——————
do not involve any false representations. See Tr. of Oral Arg. 46–47;
see, e.g., United States v. Doherty, 969 F.2d 425, 427–428 (CA7 1992)
(citing Williams v. United States, 458 U.S. 279, 284–285 (1982)). No
doubt, the overlap between the two clauses is substantial on our read-
ing, but that is not uncommon in criminal statutes. See, e.g., Hubbard
v. United States, 514 U.S. 695, 714, n. 14 (1995).
8 LOUGHRIN v. UNITED STATES
Opinion of the Court
back half, we held, merely codified a prior judicial decision
applying the front half: In other words, the back clarified
that the front included certain conduct, rather than doing
independent work. 483 U.S., at 358–359. According to
Loughrin, we should read the bank fraud statute in the
same way.
But the two statutes, as an initial matter, have notable
textual differences. The mail fraud law contains two
phrases strung together in a single, unbroken sentence.
By contrast, §1344’s two clauses have separate numbers,
line breaks before, between, and after them, and equiva-
lent indentation—thus placing the clauses visually on an
equal footing and indicating that they have separate
meanings. The legislative structure thus reinforces the
usual (even if not McNally’s) understanding of the word
“or” as meaning . . . well, “or”—rather than, as Loughrin
would have it, “including.”
Moreover, Loughrin’s reliance on McNally encounters a
serious chronological problem. Congress passed the bank
fraud statute in 1984, three years before we decided that
case. And at that time, every Court of Appeals to have
addressed the issue had concluded that the two relevant
phrases of the mail fraud law must be read “in the dis-
junctive” and “construed independently.” 483 U.S., at 358
(citing, e.g., United States v. Clapps, 732 F.2d 1148, 1152
(CA3 1984); United States v. States, 488 F.2d 761, 764
(CA8 1973)). McNally disagreed, eschewing the most
natural reading of the text in favor of evidence it found in
the drafting history of the statute’s money-or-property
clause. But the Congress that passed the bank fraud
statute could hardly have predicted that McNally would
overturn the lower courts’ uniform reading. We thus see
no reason to doubt that in enacting §1344, Congress said
what it meant and meant what it said, see Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)—i.e., that
it both said “or” and meant “or” in the usual sense.
Cite as: 573 U. S. ____ (2014) 9
Opinion of the Court
And a peek at history, of the kind McNally found deci-
sive, only cuts against Loughrin’s reading of the bank
fraud statute. According to McNally, Congress added the
mail fraud statute’s second, money-or-property clause
merely to affirm a decision of ours interpreting the ban on
schemes “to defraud”: The second clause, McNally rea-
soned, thus worked no substantive change in the law. See
483 U.S., at 356–359 (discussing Congress’s codification of
Durland v. United States, 161 U.S. 306 (1896)). By con-
trast, Congress passed the bank fraud statute to disap-
prove prior judicial rulings and thereby expand federal
criminal law’s scope—and indeed, partly to cover cases
like Loughrin’s. One of the decisions prompting enact-
ment of the bank fraud law, United States v. Maze, 414
U.S. 395 (1974), involved a defendant who used a stolen
credit card to obtain food and lodging. (Substitute a check
for a credit card and Maze becomes Loughrin.) The Gov-
ernment brought charges of mail fraud, relying on post-
purchase mailings between the merchants and issuing
bank to satisfy the statute’s mailing element. But the
Court held those mailings insufficiently integral to the
fraudulent scheme to support the conviction. See id., at
402. Hence, Maze created a “serious gap[ ] . . . in Federal
jurisdiction over frauds against banks.” S. Rep. No. 98–
225, p. 377 (1983). Congress passed §1344 to fill that gap,
enabling the Federal Government to prosecute fraudsters
like Maze and Loughrin. We will not deprive that enact-
ment of its full effect because McNally relied on different
history to adopt a counter-textual reading of a similar
provision.
B
Loughrin also appeals to principles of federalism to
support his proffered construction. Unless we read
§1344(2) as requiring intent to defraud a bank, Loughrin
contends, the provision will extend to every fraud, no
10 LOUGHRIN v. UNITED STATES
Opinion of the Court
matter how prosaic, happening to involve payment with a
check—even when that check is perfectly valid. Consider,
for example, a garden-variety con: A fraudster sells some-
thing to a customer, misrepresenting its value. There are
countless variations, but let’s say the fraudster passes off
a cheap knock-off as a Louis Vuitton handbag. The victim
pays for the bag with a good check, which the criminal
cashes. Voila!, Loughrin says, bank fraud has just hap-
pened—unless we adopt his narrowing construction. After
all, the criminal has intended to “obtain . . . property . . .
under the custody or control of ” the bank (the money in
the victim’s checking account), and has made “false or
fraudulent . . . representations” (the lies to the victim
about the handbag).5 But if the bank fraud statute were
to encompass all such schemes, Loughrin continues, it
would interfere with matters “squarely within the tradi-
tional criminal jurisdiction of the state courts.” Brief for
Petitioner 29. We should avoid such a “sweeping expan-
sion of federal criminal” law, he concludes, by reading
§1344(2), just like §1344(1), as requiring intent to defraud
a bank. Reply Brief 3 (quoting Cleveland v. United States,
531 U.S. 12, 24 (2000)).
We agree with this much of what Loughrin argues:
Unless the text requires us to do so, we should not con-
strue §1344(2) as a plenary ban on fraud, contingent only
on use of a check (rather than cash). As we have often
(and recently) repeated, “we will not be quick to assume
——————
5 One might think the Federal Government would never use the bank
fraud statute to prosecute such ordinary frauds just because they
happen to involve payment by check rather than cash. But in fact, the
Government has brought a number of cases alleging violations of
§1344(2) on that theory (so far, it appears, unsuccessfully). See, e.g.,
Thomas, 315 F.3d 190 (a home health care worker got a valid check
from a patient to buy groceries, but then cashed the check and pocketed
the money); United States v. Rodriguez, 140 F.3d 163 (CA2 1998) (an
employee filed fake invoices with her employer, causing the company to
issue valid checks to her friend for services never rendered).
Cite as: 573 U. S. ____ (2014) 11
Opinion of the Court
that Congress has meant to effect a significant change in
the sensitive relation between federal and state criminal
jurisdiction.” Bond v. United States, 572 U. S. ___, ___
(2014) (slip op., at 13) (quoting United States v. Bass, 404
U.S. 336, 349 (1971)); see Cleveland, 531 U.S., at 24 (“We
resist the Government’s reading . . . because it invites us
to approve a sweeping expansion of federal criminal juris-
diction in the absence of a clear statement by Congress”);
Jones v. United States, 529 U.S. 848, 858 (2000) (similar).
Just such a rebalancing of criminal jurisdiction would
follow from interpreting §1344(2) to cover every pedestrian
swindle happening to involve payment by check, but in no
other way affecting financial institutions. Indeed, even
the Government expresses some mild discomfort with
“federalizing frauds that are only tangentially related to
the banking system.” Brief for United States 41.
But in claiming that we must therefore recognize an
invisible element, Loughrin fails to take account of a
significant textual limitation on §1344(2)’s reach. Under
that clause, it is not enough that a fraudster scheme to
obtain money from a bank and that he make a false
statement. The provision as well includes a relational
component: The criminal must acquire (or attempt to
acquire) bank property “by means of ” the misrepresenta-
tion. That phrase typically indicates that the given result
(the “end”) is achieved, at least in part, through the speci-
fied action, instrument, or method (the “means”), such
that the connection between the two is something more
than oblique, indirect, and incidental. See, e.g., Webster’s
Third New International Dictionary 1399 (2002) (defining
“by means of ” as “through the instrumentality of: by the
use of as a means”); 9 Oxford English Dictionary 516 (2d
ed. 1989) (defining “means” as “[a]n instrument, agency,
method, or course of action, by the employment of which
some object is or may be attained, or which is concerned in
bringing about some result”). In other words, not every
12 LOUGHRIN v. UNITED STATES
Opinion of the Court
but-for cause will do. If, to pick an example out of a hat,
Jane traded in her car for money to take a bike trip cross-
country, no one would say she “crossed the Rockies by
means of a car,” even though her sale of the car somehow
figured in the trip she took. The relation between those
things would be (as the Government puts it) too “tangen-
tial[ ]” to make use of the phrase at all appropriate. Brief
for United States 41.
Section 1344(2)’s “by means of ” language is satisfied
when, as here, the defendant’s false statement is the
mechanism naturally inducing a bank (or custodian of
bank property) to part with money in its control. That
occurs, most clearly, when a defendant makes a misrepre-
sentation to the bank itself—say, when he attempts to
cash, at the teller’s window, a forged or altered check. In
that event, the defendant seeks to obtain bank property by
means of presenting the forgery directly to a bank em-
ployee. But no less is the counterfeit check the “means” of
obtaining bank funds when a defendant like Loughrin
offers it as payment to a third party like Target.6 After
all, a merchant accepts a check only to pass it along to a
bank for payment; and upon receipt from the merchant,
that check triggers the disbursement of bank funds just as
if presented by the fraudster himself. So in either case,
the forged or altered check—i.e., the false statement—
serves in the ordinary course as the means (or to use other
words, the mechanism or instrumentality) of obtaining
bank property. To be sure, a merchant might detect the
——————
6 The Government in such a case may, of course, face the separate
claim that the defendant did not intend to obtain bank property at all:
As noted earlier, Loughrin argued this point to the jury, contending
(unsuccessfully) that he merely wanted to get cash from Target. See
n. 3, supra. All we say here, for the reasons next stated, is that when
the defendant has the requisite intent to acquire bank property, his
presentation of a forged or altered check to a third party satisfies
§1344(2)’s “means” requirement.
Cite as: 573 U. S. ____ (2014) 13
Opinion of the Court
fraud (as Target sometimes did) and decline to submit the
forged or altered check to the bank. But that is to say only
that the defendant’s scheme to obtain bank property by
means of a false statement may not succeed. And we have
long made clear that such failure is irrelevant in a bank
fraud case, because §1344 punishes not “completed
frauds,” but instead fraudulent “scheme[s].” Neder, 527
U.S., at 25.
By contrast, the cases Loughrin hopes will unnerve us—
exemplified by the handbag swindle—do not satisfy
§1344(2)’s “means” requirement.7 Recall that in such a
case the check is perfectly valid; so the check itself is not
(as it was here) a false or fraudulent means of obtaining
bank money. And the false pretense that has led, say, the
handbag buyer to give a check to the fraudster has noth-
ing to do with the bank that will cash it: No one would
dream of passing on to the bank (as Target would forward
a forged check) the lie that a knock-off is a Louis Vuitton.
The bank’s involvement in the scheme is, indeed, wholly
fortuitous—a function of the victim’s paying the fraudster
by (valid) check rather than cash. Of course, the bank
would not have disbursed funds had the misrepresentation
never occurred, and in that sense, the lie counts as a but-
for cause of the bank’s payment. But as we have said,
§1344(2)’s “by means of ” language requires more, see
supra, at 11–12: It demands that the defendant’s false
statement is the mechanism naturally inducing a bank (or
custodian) to part with its money. And in cases like the
handbag swindle, where no false statement will ever go to
a financial institution, the fraud is not the means of ob-
taining bank property.8
——————
7 Even the Government, we note, acknowledges that §1344(2) is rea-
sonably read to exclude such cases from its coverage. See Brief for
United States 40–44; Tr. of Oral Arg. 43–47.
8 JUSTICE SCALIA takes issue with our limitation of §1344(2), contend-
ing first that the fraudster’s “indifferen[ce] to the victim’s method of
14 LOUGHRIN v. UNITED STATES
Opinion of the Court
The premise of Loughrin’s federalism argument thus
collapses. He claims that we must import an unstated
element into §1344(2) to avoid covering run-of-the-mill
frauds, properly of concern only to States. But in fact, the
text of §1344(2) already limits its scope to deceptions that
have some real connection to a federally insured bank, and
thus implicate the pertinent federal interest. See S. Rep.
No. 98–225, at 378 (noting that federal “jurisdiction is
based on the fact that the victim of the offense is a federally
——————
payment” does not “cause what is a means not to be a means.” Post, at
2–3 (opinion concurring in part and concurring in judgment) (emphasis
deleted). To illustrate the point, he offers an example: Someone “ob-
tain[s] 7-Eleven coffee by means of [his] two dollars” even if he went to
7-Eleven rather than Sheetz only because it happened to be the closest.
Post, at 3. But that objection is based on a misunderstanding of our
opinion. The “by means of” phrase calls for an inquiry into the direct-
ness of the relationship between means and ends, not the fraudster’s
subjective intent. (We take it JUSTICE SCALIA agrees; he recognizes that
“not every but-for cause of an act is a cause ‘by means of’ which the act
has occurred.” Post, at 2.) And we concur with the bottom line of
JUSTICE SCALIA’s example: There, the means (the two dollars) is the
thing that achieves the specified end (getting the cup of 7-Eleven
coffee). By contrast, for the reasons elaborated above, the misstate-
ment in our handbag hypothetical is not the mechanism by which the
fraudster obtains bank property, given that the lie will never reach the
bank.
And so JUSTICE SCALIA tries another example, this one (involving
Little Bobby) contesting our view of directness. Post, at 3–4. But such
hypotheticals mostly show that what relationships count as close
enough to satisfy the phrase “by means of” will depend almost entirely
on context. (We might counter with some examples of our own, but we
fear that would take us down an endless rabbit hole.) Language like
“by means of” is inherently elastic: It does not mean one thing as to all
fact patterns—and certainly not in all statutes, given differences in
context and purpose. All we say here is that the phrase, as used in
§1344(2), is best read, for the federalism-related reasons we have given,
see supra, at 9–11, as drawing a line at frauds that have some real
connection to a federally insured bank—namely, frauds in which a false
statement will naturally reach such a bank (or a custodian of the bank’s
property).
Cite as: 573 U. S. ____ (2014) 15
Opinion of the Court
controlled or insured institution”). And Loughrin’s own
crime, as we have explained, is one such scheme, because
he made false statements, in the form of forged and al-
tered checks, that a merchant would, in the ordinary
course of business, forward to a bank for payment. See
supra, at 12–13. We therefore reject Loughrin’s reading of
§1344(2) and his challenge to his conviction.9
For the reasons stated, we affirm the judgment of the
Tenth Circuit.
It is so ordered.
——————
9 As a last-gasp argument, Loughrin briefly asserts that §1344(2) at
least requires the Government to prove that the defendant’s scheme
created a risk of financial loss to the bank. See Brief for Petitioner 36–
40. But once again, nothing like that element appears in the clause's
text. Indeed, the broad language in §1344(2) describing the property at
issue—“property owned by or under the custody or control of” a bank—
appears calculated to avoid entangling courts in technical issues of
banking law about whether the financial institution or, alternatively, a
depositor would suffer the loss from a successful fraud. See United
States v. Nkansah, 699 F.3d 743, 754 (CA2 2012) (Lynch, J., concurring
in part and concurring in judgment in part). And Loughrin’s argument
fits poorly with our prior holding that the gravamen of §1344 is the
“scheme,” rather than “the completed fraud,” and that the offense
therefore does not require “damage” or “reliance.” Neder v. United
States, 527 U.S. 1, 25 (1999); see supra, at 13.
Cite as: 573 U. S. ____ (2014) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–316
_________________
KEVIN LOUGHRIN, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 23, 2014]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in part and concurring in the judgment.
I join Parts I and II of the Court’s opinion, Part III–A
except the last paragraph, and the last footnote in Part
III–B. I do not join the remainder of Part III–B.
I agree with the Court that neither intent to defraud a
bank nor exposure of a bank to a risk of loss is an element
of the crime codified in 18 U.S. C. §1344(2). But I am
dubitante on the point that one obtains bank property “by
means of ” a fraudulent statement only if that statement is
“the mechanism naturally inducing a bank (or custodian of
bank property) to part with money in its control,” ante, at
12. The Government suggested that test, but only briefly
claimed it was to be found in the “by means of ” language,
Brief for United States 40–41—so briefly that Loughrin
responded that “[t]he Government does not claim any
textual basis for this [naturally inducing] rule,” Reply
Brief 13. We have heard scant argument (nothing but the
Government’s bare-bones assertion) in favor of the “by
means of ” textual limitation, and no adversary presenta-
tion whatever opposing it. The Court’s opinion raises the
subject in order to reply to Loughrin’s argument that,
unless we adopt his proposed nontextual limitations, all
frauds effected by receipt of a check will become federal
crimes. It seems to me enough to say that Loughrin’s
solutions to the problem of the statute’s sweep are, for the
2 LOUGHRIN v. UNITED STATES
Opinion of SCALIA, J.
reasons well explained by the Court’s opinion, not correct.
What the proper solution may be should in my view be left
for another day. I discuss below my difficulties with the
“by means of ” solution.
Recall the Court’s hypothetical garden-variety con. “A
fraudster [makes a statement] pass[ing] off a cheap knock-
off as a Louis Vuitton handbag. The victim pays for the
bag with a good check, which the criminal cashes.” Ante,
at 10. The fraudster unquestionably has obtained bank
property. But how? By presenting the check to a bank
teller, yes. But also by duping the buyer. Yet according to
the Court, the fraudster’s deceit was not a “means” of
obtaining the cash, because tricking a buyer into swapping
a check for a counterfeit carryall is not a “mechanism
naturally inducing a bank . . . to part with money in its
control.” Ante, at 12. The bank’s involvement, it says, is
mere happenstance.
I do not know where the Court’s crabbed definition of
“means” comes from. Certainly not the dictionary entries
that it quotes. Quite the contrary, those suggest that the
handbag fraudster’s deceitful statement was a “means”:
Undoubtedly, the trickery was a “ ‘method, or course of
action, by the employment of which [bank property was]
attained.’ ” Ante, at 11. Though the dictionaries do not
appear to add that the connection between “means” and
end must be “something more than oblique, indirect, and
incidental,” ibid., I agree that, in common usage, not every
but-for cause of an act is a cause “by means of ” which the
act has occurred. No one would say, for example, that the
handbag fraudster obtained bank property by means of his
ancestors’ emigration to the United States. But all would
say, I think, that he obtained the property by means of the
lie. His deceit is far from merely incidental to, or an
oblique or indirect way of, obtaining the money. That was
the lie’s very purpose.
That the fraudster likely was indifferent to the victim’s
Cite as: 573 U. S. ____ (2014) 3
Opinion of SCALIA, J.
method of payment—making his receipt of bank money
instead of straight cash merely “fortuitous,” ante, at 13—
does not suggest, in ordinary parlance, that the fraud was
not a means of acquiring bank property. Indeed, saying
that indifference is disqualifying comes close to requiring
the intent to defraud a bank that the Court properly re-
jects. In any case, indifference certainly does not cause
what is a means not to be a means. Suppose I resolve to
purchase (with the two dollars in my billfold) a coffee at
the first convenience store I pass on my way to work. I am
indifferent to what store that might be. I catch sight of a
7-Eleven, pull in, and, with my cash, buy the drink. That
it is a 7-Eleven coffee rather than a Sheetz coffee is “wholly
fortuitous,” ibid. Still, no one would say that I had not
obtained 7-Eleven coffee by means of my two dollars. So
too with the handbag swindler: Regardless of whether the
cash is the victim’s or, technically, the bank’s, and regard-
less of whether the swindler cared which it was, would we
not say that the fraudster has obtained it by means of the
trick?
The majority responds that the measure of “means” is
not indifference or the absence of fortuity but rather di-
rectness. And not just proximate-cause-like directness—
the fraudulent statement literally must “reach the bank,”
ante, at 14, n. 8. Once again, it seems to me the Court’s
definition does not accord with common usage. Suppose
little Bobby falsely tells his mother that he got an A on his
weekly spelling test and so deserves an extra cookie after
dinner. Mother will not be home for dinner, but she leaves
a note for Father: “Bobby gets an extra cookie after dinner
tonight.” (Much like the handbag buyer’s note to the
bank: “Pay $2,000 to the order of Mr. Handbag Fraud-
ster.”) Dinner wraps up, and Bobby gets his second cookie.
Has he obtained it by means of the fib to his mother?
Plainly yes, an ordinary English speaker would say. But
plainly no under the Court’s definition, since the lie did
4 LOUGHRIN v. UNITED STATES
Opinion of SCALIA, J.
not make its way to the father.
The Court’s chief illustration of its “by means of ” gloss
seems to me contrived. If “Jane traded in her car for
money to take a bike trip cross-country, no one would say
she ‘crossed the Rockies by means of a car.’ ” Ante, at 12.
Of course. By using two vehicles of conveyance, and de-
scribing the end in question as “crossing the Rockies,” the
statement that the car was the “means” of achieving that
end invites one to think that Jill traveled by automobile.
But the proper question—the one parallel to the question
whether the fraudster obtained bank funds by means of
fraudulently selling the counterfeit—is not whether Jill
crossed the Rockies by means of the car, but whether she
funded her trip by means of selling the car. Which she
assuredly did. Just as the handbag swindler, in the Louis
Vuitton example, obtained money by means of his false
representation.
I certainly agree that this statute must be interpreted, if
possible, in a manner that will not make every fraud
effected by receipt of a check a federal offense. But decid-
ing this case does not require us to identify that manner,
and I would leave that for another case.
Cite as: 573 U. S. ____ (2014) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–316
_________________
KEVIN LOUGHRIN, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 23, 2014]
JUSTICE ALITO, concurring in part and concurring in the
judgment.
I agree with the Court’s holding that 18 U.S. C.
§1344(2) requires neither intent to defraud a bank nor the
creation of a risk of financial loss to a bank, but I must
write separately to express disagreement with some dicta
in the opinion of the Court.
In a few passages, the Court suggests that §1344(2)
requires a mens rea of purpose. See ante, at 4 (“[T]he
clause requires that the defendant intend ‘to obtain any of
the moneys . . . or other property owned by, or under the
custody or control of, a financial institution’ ” (ellipsis in
original)); ante, at 12, n. 6 (“[W]hen the defendant has the
requisite intent to acquire bank property, his presentation
of a forged or altered check to a third party satisfies
§1344(2)’s ‘means’ requirement”).* That is incorrect.
Congress expressly denoted the mens rea a defendant
must have to violate §1344(2), and it is not purpose.
Instead, §1344(2) imposes liability on “[w]hoever knowingly
executes, or attempts to execute, a scheme or artifice” to
obtain bank property. (Emphasis added.) It is hard to
imagine how Congress could have been clearer as to the
mental state required for liability.
——————
* Cf. ante, at 5 (§1344(1) “includes the requirement that a defendant
intend to ‘defraud a financial institution’ ”).
2 LOUGHRIN v. UNITED STATES
Opinion of ALITO, J.
The Court’s contrary statements apparently derive from
the fact that the criminal venture that a defendant must
knowingly execute or attempt to execute must be a scheme
or artifice “to obtain . . . property owned by . . . a financial
institution.” §1344(2). A defendant must have the pur-
pose to obtain bank property, so the argument goes, be-
cause he must execute a scheme the purpose of which is to
obtain bank property.
This argument confuses the design of the scheme with
the mens rea of the defendant. The statute requires only
that the objective of the scheme must be the obtaining of
bank property, not that the defendant must have such an
objective. Of course, in many cases a scheme’s objective
will be the same as an individual defendant’s. Where the
defendant acts alone, for instance, his objective will almost
certainly be the same as that of the scheme, and the in-
quiry into the defendant’s mens rea and the scheme’s
objective will accordingly merge. But in some cases, such
as those involving large, complex criminal ventures, a
given defendant’s purpose may diverge from the scheme’s
objective. For instance, a defendant who is paid by a large
ring of check forgers to present one of their forged checks
to a bank for payment has executed “a scheme or artifice
. . . to obtain” bank property, even if he only presents the
check because he is paid to do so and personally does not
care whether the forged check is honored. That is because
the objective of the scheme as a whole is to obtain bank
property, and the defendant knowingly executes that
scheme.
The majority reads the word “knowingly” out of the
statute. That term “ ‘requires proof of knowledge of the
facts that constitute the offense.’ ” Dixon v. United States,
548 U.S. 1, 5 (2006). If the majority is correct that the
language “a scheme or artifice . . . to obtain” bank property
demands that the defendant intend to obtain bank prop-
erty, then the word “knowingly” is superfluous, because a
Cite as: 573 U. S. ____ (2014) 3
Opinion of ALITO, J.
defendant whose purpose is to obtain bank property will
always know that his purpose is to obtain bank property.
Why would Congress expressly specify a lesser mens rea
element if elsewhere in the statute it commands a greater,
subsuming one?
Proof that a defendant acted knowingly very often gives
rise to a reasonable inference that the defendant also
acted purposely, and therefore the Court’s dicta may not
have much practical effect. But if the issue is presented in
a future case, the Court’s statements must be regarded as
dicta. The Court’s statements that a defendant must
intend to obtain bank property to be convicted under
§1344(2) are unnecessary to its conclusion that a defend-
ant may be convicted under this provision without proof
that he either intended to defraud a bank or created a risk
of loss to a bank. Furthermore, as the Court makes clear,
petitioner waived any challenge to his conviction arising
from an asserted statutory requirement that he must have
intended to obtain bank property. See ante, at 4, n. 3.