United States v. Reginald Thomas

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2023
• Docket: 22-10283
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.”).

2 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

3 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

3. Because the indictment was legally sufficient, we affirm the judgment of

conviction.

AFFIRMED.