United States v. Omer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-30513
v.  D.C. No.
TIMOTHY W. OMER, CR-03-00009-DWM
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 03-30544
Plaintiff-Appellant,
v.  D.C. No.
CR-03-00009-DWM
TIMOTHY W. OMER,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
December 6, 2004—Seattle, Washington
Filed January 19, 2005
Before: Michael Daly Hawkins, Sidney R. Thomas, and
M. Margaret McKeown, Circuit Judges.
Per Curiam Opinion
841
UNITED STATES v. OMER 843
COUNSEL
Michael J. Sherwood, Missoula, Montana, for the appellant.
Kris A. McLean, Assistant United States Attorney, Missoula,
Montana, for the appellee.
OPINION
PER CURIAM:
Timothy Omer appeals from his jury trial conviction and
sentence for bank fraud in violation of 18 U.S.C. § 1344(1).
Omer contends that the district court erroneously denied his
pretrial motion to dismiss in which he argued that the indict-
ment was fatally deficient because the indictment failed to
allege materiality of the fraud. We review the sufficiency of
an indictment de novo, United States v. Pernillo-Fuentes, 252
F.3d 1030, 1032 (9th Cir. 2001), and we reverse.
“[I]f properly challenged prior to trial, an indictment’s
complete failure to recite an essential element of the charged
offense is not a minor or technical flaw subject to harmless
error analysis, but a fatal flaw requiring dismissal of the
indictment.” United States v. Du Bo, 186 F.3d 1177, 1179
(9th Cir. 1999). Omer’s indictment fails to recite an essential
element of the charged offense—materiality of falsehood.
Therefore, because Omer properly challenged the sufficiency
of the indictment prior to trial, the district court should have
dismissed the indictment.
[1] The indictment does allege that Omer knowingly exe-
cuted or attempted to execute a scheme or artifice to defraud
specific financial institutions through a check kiting scheme.
Prior to the Supreme Court’s decision in Neder v. United
States, 527 U.S. 1 (1999), the majority of circuit courts held
844 UNITED STATES v. OMER
that a check kiting scheme, in and of itself, could support a
conviction for bank fraud under 18 U.S.C. § 1344(1). See,
e.g., United States v. LeDonne, 21 F.3d 1418, 1426 (7th Cir.
1994) (collecting cases); United States v. Sayan, 968 F.2d 55,
61 n.7 (D.C. Cir. 1992) (same). In Neder, however, the
Supreme Court held that “materiality of falsehood is an ele-
ment” of § 1344(1). 527 U.S. at 25. The Supreme Court deter-
mined that the language of § 1344(1), which requires proof of
any “scheme or artifice to defraud an institution,” incorpo-
rates the well-settled common-law meaning of fraud and thus
requires the prosecution to prove a misrepresentation or con-
cealment of a material fact to support a conviction. Id. at 22-
23. Thus, pursuant to Neder, materiality of the scheme is an
essential element of bank fraud in violation of 18 U.S.C.
§ 1344(1). As such, materiality must be alleged in the indict-
ment.
The government contends that our decision in United States
v. Woods, 335 F.3d 993 (9th Cir. 2003), permits an indictment
charging bank fraud to omit an allegation of materiality. The
government misreads Woods. In Woods, we held that proof of
a scheme or artifice to defraud does not require the proof of
the making of any specific false statement. Id. at 998-99.
However, Woods cannot be read for the proposition that mate-
riality need not be alleged or proven. Rather, Woods analyzed
the specificity required of the alleged misrepresentations. Id.
Thus, we held that the jury instructions in Woods did not vio-
late Neder, because, as a whole, they accurately included all
elements of the offense and adequately informed the jury that
materiality of falsehood is an element of fraud. Id. at 1000.
[2] Woods is relevant to Omer’s contention that Neder
requires the allegation of a material false statement as an
essential element of the offense. We agree with the govern-
ment that Neder does not go that far. It is the materiality of
the scheme or artifice that must be alleged; the materiality of
a specific statement need not be pleaded. As we noted in
Woods, “the fraudulent nature of the ‘scheme or artifice to
UNITED STATES v. OMER 845
defraud’ is measured by a non-technical standard.” Id. at 998.
“Thus, schemes are condemned which are contrary to public
policy or which fail to measure up to the reflection of moral
uprightness, of fundamental honesty, fair play and right deal-
ing in the general and business life of members of society.”
Id. (quoting United States v. Bohonus, 628 F.2d 1167, 1171
(9th Cir. 1980)). Neder did not undermine this non-technical
standard for measuring fraud, which does not require proof of
a specific false statement. Id.
[3] In sum, the indictment’s failure to recite an essential
element of the charged offense, namely the materiality of the
scheme or artifice to defraud, is a fatal flaw requiring dis-
missal of the indictment. Given this resolution of the appeal,
it is unnecessary for us to decide any other issue urged by the
parties.
REVERSED.