Shaw v. United States , 137 S. Ct. 462 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2016 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
SHAW v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 15–5991. Argued October 4, 2016—Decided December 12, 2016
Petitioner Shaw used identifying numbers of a bank account belonging
to bank customer Hsu in a scheme to transfer funds from that ac-
count to accounts at other institutions from which Shaw was able to
obtain Hsu’s funds. Shaw was convicted of violating 18 U. S. C.
§1344(1), which makes it a crime to “knowingly execut[e] a
scheme . . . to defraud a financial institution.” The Ninth Circuit af-
firmed.
Held:
1. Subsection (1) of the bank fraud statute covers schemes to de-
prive a bank of money in a customer’s deposit account. Shaw’s argu-
ments in favor of his claim that subsection (1) does not apply to him
because he intended to cheat only a bank depositor, not a bank, are
unpersuasive.
First, the bank did have property rights in Hsu’s bank deposits:
When a customer deposits funds, the bank ordinarily becomes the
owner of the funds, which the bank has a right to use as a source of
loans that help the bank earn profits. Sometimes, the contract be-
tween the customer and the bank provides that the customer retains
ownership of the funds and the bank only assumes possession; even
then, the bank has a property interest in the funds because its role is
akin to that of a bailee. Hence, for purposes of the bank fraud stat-
ute, a scheme fraudulently to obtain funds from a bank depositor’s
account normally is also a scheme fraudulently to obtain property
from a “financial institution,” at least where, as here, the defendant
knew that the bank held the deposits, the funds obtained came from
the deposit account, and the defendant misled the bank in order to
obtain those funds.
Second, Shaw may not have intended to cause the bank financial
harm, but the statute, while insisting upon “a scheme to defraud,”
2 SHAW v. UNITED STATES
Syllabus
demands neither a showing that the bank suffered ultimate financial
loss nor a showing that the defendant intended to cause such loss.
This Court has found no case that interprets the statute as Shaw
does. Cf. Carpenter v. United States, 484 U. S. 19, 26.
Third, that Shaw may have been ignorant of relevant bank-related
property law is no defense to criminal prosecution for bank fraud.
Shaw knew that the bank possessed Hsu’s account, Shaw made false
statements to the bank, Shaw believed that those false statements
would lead the bank to release from that account funds that ultimate-
ly and wrongfully ended up with Shaw, and the bank in fact pos-
sessed a property interest in the account. These facts are sufficient
to show that Shaw knew that he was entering into a scheme to de-
fraud the bank even if he was not aware of the niceties of bank-
related property law. Cf. Pasquantino v. United States, 544 U. S.
349, 355–356.
Fourth, Shaw mistakenly contends that the statute requires the
Government to prove not just that he acted with the knowledge that
he would likely harm the bank’s property interest but also that such
was his purpose. This Court has found no relevant authority sup-
porting the view that a statute making criminal the “knowin[g] ex-
ecut[ion of] a scheme . . . to defraud” requires something more than
knowledge. Allison Engine Co. v. United States ex rel. Sanders, 553
U. S. 662, 665–668; Tanner v. United States, 483 U. S. 107, 110–112;
United States v. Cohn, 270 U. S. 339, 343; and Bridges v. United
States, 346 U. S. 209, 221–222, distinguished.
Fifth, subsection (2) of the bank fraud statute, which makes crimi-
nal the use of “false or fraudulent pretenses” to obtain “property . . .
under the custody or control of” a bank, may overlap with subsection
(1), but it does not do so completely. Thus, it should not be read as
excluding from subsection (1) applications that would otherwise fall
within the scope of subsection (1), such as the conduct at issue in this
case. See Loughrin v. United States, 573 U. S. ___, ___, n. 4.
Finally, because the bank fraud statute is clear enough, the rule of
lenity is not implicated. Pp. 2–8.
2. With regard to the parties’ dispute over whether the District
Court improperly instructed the jury that a scheme to defraud a bank
must be one to deceive the bank or deprive it of something of value,
instead of one to deceive and deprive, the Ninth Circuit is left to de-
termine whether that question was properly presented and if so,
whether the instruction given is lawful, and, if not, whether any error
was harmless in this case. Pp. 8–9.
781 F. 3d 1130, vacated and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
Cite as: 580 U. S. ____ (2016) 1
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–5991
_________________
LAWRENCE EUGENE SHAW, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[December 12, 2016]
JUSTICE BREYER delivered the opinion of the Court.
A federal statute makes it a crime “knowingly [to] ex-
ecut[e] a scheme . . . to defraud a financial institution,” 18
U. S. C. §1344(1), for example, a federally insured bank,
18 U. S. C. §20. The petitioner, Lawrence Shaw, was
convicted of violating this provision. He argues here that
the provision does not apply to him because he intended to
cheat only a bank depositor, not a bank. We do not accept
his arguments.
I
The relevant criminal statute makes it a crime:
“knowingly [to] execut[e] a scheme . . .
“(1) to defraud a financial institution; or
“(2) to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by, or
under the custody or control of, a financial institu-
tion, by means of false or fraudulent pretenses, rep-
resentations, or promises.” §1344.
Shaw obtained the identifying numbers of a Bank of
America account belonging to a bank customer, Stanley
2 SHAW v. UNITED STATES
Opinion of the Court
Hsu. Shaw used those numbers (and other related infor-
mation) to transfer funds from Hsu’s account to other
accounts at other institutions from which Shaw could
obtain (and eventually did obtain) Hsu’s funds. Shaw was
convicted of violating the first clause of the statute, namely,
the prohibition against “defraud[ing] a financial insti-
tution.” The Ninth Circuit affirmed his conviction. 781
F. 3d 1130 (2015). Shaw then filed a petition for certiorari
arguing that the words “scheme to defraud a financial
institution” require the Government to prove that the
defendant had “a specific intent not only to deceive, but
also to cheat, a bank,” rather than “a non-bank third
party.” Pet. for Cert. i. We granted review.
II
Shaw makes several related arguments in favor of his
basic claim, namely, that the statute does not cover
schemes to deprive a bank of customer deposits. First, he
says that subsection (1) requires “an intent to wrong a
victim bank [a ‘financial institution’] in its property
rights . . . .” Brief for Petitioner 23. He adds that the
property he took, money in Hsu’s bank account, belonged
to Hsu, the bank’s customer, and that Hsu is not a “finan-
cial institution.” Id., at 25, 45. Hence Shaw’s was a
scheme “designed” to obtain only “a bank customer’s prop-
erty,” not “a bank’s own property.” Id., at 24–25.
The basic flaw in this argument lies in the fact that the
bank, too, had property rights in Hsu’s bank account.
When a customer deposits funds, the bank ordinarily
becomes the owner of the funds and consequently has the
right to use the funds as a source of loans that help the
bank earn profits (though the customer retains the right,
for example, to withdraw funds). 5A Michie, Banks and
Banking, ch. 9, §1, pp. 1–7 (2014) (Michie); id., §4b, at 54–
58; id., §38, at 162; Phoenix Bank v. Risley, 111 U. S. 125,
127 (1884). Sometimes, the contract between the customer
Cite as: 580 U. S. ____ (2016) 3
Opinion of the Court
and the bank provides that the customer retains owner-
ship of the funds and the bank merely assumes possession.
Michie, ch. 9, §38, at 162; Phoenix Bank, supra, at 127.
But even then the bank is like a bailee, say, a garage that
stores a customer’s car. Michie, ch. 9, §38, at 162. And as
bailee, the bank can assert the right to possess the depos-
ited funds against all the world but for the bailor (or, say,
the bailor’s authorized agent). 8A Am. Jur. 2d, Bailment
§166, pp. 685–686 (2009). This right, too, is a property
right. 2 W. Blackstone, Commentaries on the Laws of
England 452–454 (1766) (referring to a bailee’s right in a
bailment as a “special qualified property”). Thus, Shaw’s
scheme to cheat Hsu was also a scheme to deprive the
bank of certain bank property rights.
Hence, for purposes of the bank fraud statute, a scheme
fraudulently to obtain funds from a bank depositor’s ac-
count normally is also a scheme fraudulently to obtain
property from a “financial institution,” at least where, as
here, the defendant knew that the bank held the deposits,
the funds obtained came from the deposit account, and the
defendant misled the bank in order to obtain those funds.
Second, Shaw says he did not intend to cause the bank
financial harm. Indeed, the parties appear to agree that,
due to standard banking practices in place at the time of
the fraud, no bank involved in the scheme ultimately
suffered any monetary loss. Brief for Petitioner 4; Brief
for United States 4, 27–28. But the statute, while insist-
ing upon “a scheme to defraud,” demands neither a show-
ing of ultimate financial loss nor a showing of intent to
cause financial loss. Many years ago Judge Learned Hand
pointed out that “[a] man is none the less cheated out of
his property, when he is induced to part with it by fraud,”
even if “he gets a quid pro quo of equal value.” United
States v. Rowe, 56 F. 2d 747, 749 (CA2 1932). That is
because “[i]t may be impossible to measure his loss by the
gross scales available to a court, but he has suffered a
4 SHAW v. UNITED STATES
Opinion of the Court
wrong; he has lost,” for example, “his chance to bargain
with the facts before him.” Ibid. Cf. O. Holmes, The
Common Law 132 (1881) (“[A] man is liable to an action
for deceit if he makes a false representation to another,
knowing it to be false, but intending that the other should
believe and act upon it”); Neder v. United States, 527 U. S.
1, 21–25 (1999) (bank fraud statute’s definition of fraud
reflects the common law).
It is consequently not surprising that, when interpreting
the analogous mail fraud statute, we have held it “suffi-
cient” that the victim (here, the bank) be “deprived of its
right” to use of the property, even if it ultimately did not
suffer unreimbursed loss. Carpenter v. United States, 484
U. S. 19, 26–27 (1987). Lower courts have explained that,
where cash is taken from a bank “but the bank [is] fully
insured[,] [t]he theft [is] complete when the cash [i]s taken;
the fact that the bank ha[s] a contract with an insur-
ance company enabling it to shift the loss to that company
[is] immaterial.” United States v. Kucik, 844 F. 2d 493,
495 (CA7 1988). And commentators have made clear that
“on the criminal side, it is generally held that the lack of
financial loss is no defense to false pretenses.” 2 W. LaFave
& A. Scott, Substantive Criminal Law §8.7(i)(3), p. 404
(1986). We have found no case from this Court interpret-
ing the bank fraud statute as requiring that the victim
bank ultimately suffer financial harm, or that the defend-
ant intend that the victim bank suffer such harm.
Third, Shaw appears to argue that, whatever the true
state of property law, he did not know that the bank had a
property interest in Hsu’s account; hence he could not
have intended to cheat the bank of its property. Shaw did
know, however, that the bank possessed Hsu’s account.
He did make false statements to the bank. He did correctly
believe that those false statements would lead the bank
to release from that account funds that ultimately and
wrongfully ended up in Shaw’s pocket. And the bank did in
Cite as: 580 U. S. ____ (2016) 5
Opinion of the Court
fact possess a property interest in the account. These facts
are sufficient to show that Shaw knew he was entering
into a scheme to defraud the bank even if he was not
aware of the niceties of bank-related property law. To
require more, i.e., to require actual knowledge of those
bank-related property-law niceties, would free (or convict)
equally culpable defendants depending upon their property-
law expertise—an arbitrary result. We have found no
case from this Court requiring legal knowledge of the kind
Shaw suggests he lacked. But we have found cases in
roughly similar fraud-related contexts where this Court
has asked only whether the targeted property was in fact
property in the hands of the victim, not whether the de-
fendant knew that the law would characterize the items at
issue as “property.” See Pasquantino v. United States, 544
U. S. 349, 355–356 (2005) (Canada’s right to uncollected
excise taxes on imported liquor counted as “property” for
purposes of the wire fraud statute); Carpenter, supra, at
25–26 (a newspaper’s interest in the confidentiality of the
contents and timing of a news column counted as property
for the purposes of the mail and wire fraud statutes). We
conclude that the legal ignorance that Shaw claims here is
no defense to criminal prosecution for bank fraud.
Fourth, Shaw argues that the bank fraud statute re-
quires the Government to prove more than his simple
knowledge that he would likely harm the bank’s property
interest; in his view, the Government must prove that
such was his purpose. See Voisine v. United States, 579
U. S. ___, ___ (2016) (slip op., at 4) (“knowingly” commit-
ting an assault requires an awareness “ ‘that [harm] is
practically certain,’ ” whereas “purposefully” committing
an assault is “to have that result as a ‘conscious object’ ”
(quoting ALI, Model Penal Code §§2.02(2)(a)–(b) (1962))).
Shaw adds that his purpose was to take money from Hsu;
taking property from the bank was not his purpose.
But the statute itself makes criminal the “knowin[g]
6 SHAW v. UNITED STATES
Opinion of the Court
execut[ion of] a scheme . . . to defraud.” To hold that
something other than knowledge is required would as-
sume that Congress intended to distinguish, in respect to
states of mind, between (1) the fraudulent scheme, and (2)
its fraudulent elements. Why would Congress wish to do
so? Shaw refers us to a number of cases involving fraud
against the Government and points to language in those
cases suggesting that the relevant statutes required that
the defendant’s purpose be to harm the statutorily pro-
tected target and not a third party. Brief for Petitioner
25–29. But in two of those cases, the fraudulent state-
ment was made not to the Government but to the third
party—a circumstance not present here. See Allison
Engine Co. v. United States ex rel. Sanders, 553 U. S. 662,
665–668 (2008); Tanner v. United States, 483 U. S. 107,
110–112 (1987). In the third, the relevant portion of the
statute expressly required a false statement “ ‘for the
purpose . . . of . . . defrauding the Government of the United
States.’ ” United States v. Cohn, 270 U. S. 339, 343
(1926) (emphasis added). As for the fourth case, the lan-
guage Shaw cites states the uncontroversial proposition
that “defrauding or attempting to defraud the United
States” means “fraud against the Government.” Bridges v.
United States, 346 U. S. 209, 221–222 (1953). In any
event, these cases all involved crimes of fraud targeting
the Government—an area of the law with its own special
rules and protections. We have found no relevant authority
in the area of mail fraud, wire fraud, financial frauds, or
the like supporting Shaw’s view.
Fifth, Shaw, reading the bank fraud statute as a whole,
urges us to compare subsection (1) with subsection (2).
Supra, at 1. Subsection (2), he points out, makes criminal
the use of “false or fraudulent pretenses” to obtain “prop-
erty . . . under the custody or control of ” a bank. And in
his view that fact means that we should read subsection
(1) not to apply to those circumstances. That is to say,
Cite as: 580 U. S. ____ (2016) 7
Opinion of the Court
given the language of subsection (2), efforts such as his
effort fraudulently to obtain money deposited in a bank
account should not fall within the scope of the subsection
(1) phrase “scheme . . . to defraud a financial institution.”
Brief for Petitioner 30–33.
As we read the two subsections, however, they do not
demand that interpretation. The two subsections overlap
substantially but not completely. Subsection (2) makes
criminal the use of a scheme
“to obtain any of the moneys, funds, credits, assets,
securities, or other property owned by, or under the
custody or control of, a financial institution, by means
of false or fraudulent pretenses, representations, or
promises.”
This language covers much that subsection (1) also covers,
for example, making a false representation to a bank in
order to obtain property belonging to that bank. See
Loughrin v. United States, 573 U. S. ___, ___–___, n. 4
(2014) (slip op., at 6–7, n. 4) (recognizing the “substantial”
overlap between the two subsections and noting that such
overlap “is not uncommon in criminal statutes”). At the
same time, it applies to a circumstance in which a shopper
makes a false statement to a department store cashier in
order to pay for goods with money “under the custody or
control of a financial institution,” say, Bank A. The shop-
per’s false statement, though designed to obtain Bank A’s
property, might well not amount to an effort (under sub-
section (1)) to defraud Bank A (since the statement was
made not to Bank A but to an agent of the department
store). Given, on the one hand, the overlap and, on the
other hand, a plausible reading of the language that ap-
plies it to circumstances significantly different from those
at issue here, we have no good reason to read subsection
(2) as excluding from subsection (1) applications that
would otherwise fall within the scope of subsection (1),
8 SHAW v. UNITED STATES
Opinion of the Court
such as conduct of the kind before us.
Finally, Shaw asks us to apply the rule of lenity. Brief
for Petitioner 40–41. We have said that the rule applies if
“at the end of the process of construing what Congress has
expressed,” Callanan v. United States, 364 U. S. 587, 596
(1961), there is “ ‘a grievous ambiguity or uncertainty in
the statute,’ ” Muscarello v. United States, 524 U. S. 125,
138–139 (1998) (quoting Staples v. United States, 511
U. S. 600, 619, n. 17 (1994)). The statute is clear enough
that we need not rely on the rule of lenity. As we have
said, a deposit account at a bank counts as bank property
for purposes of subsection (1). Supra, at 2–3. The defend-
ant, in circumstances such as those present here, need not
know that the deposit account is, as a legal matter, char-
acterized as bank property. Supra, at 4–5. Moreover, in
those circumstances, the Government need not prove that
the defendant intended that the bank ultimately suffer
monetary loss. Supra, at 3–4. Finally, the statute as
applied here requires a state of mind equivalent to
knowledge, not purpose. Supra, at 5–6.
III
Shaw further argues that the instructions the District
Court gave the jury were erroneous. He points out that
the District Court told the jury that the
“phrase ‘scheme to defraud’ means any deliberate plan
of action or course of conduct by which someone
intends to deceive, cheat, or deprive a financial insti-
tution of something of value.” App. 18 (emphasis
added).
This instruction, Shaw says, could be understood as per-
mitting the jury to find him guilty if it found no more than
that his scheme was one to deceive the bank but not
to “deprive” the bank of anything of value. Brief for Peti-
tioner 22–23. The parties agree, as do we, that the scheme
Cite as: 580 U. S. ____ (2016) 9
Opinion of the Court
must be one to deceive the bank and deprive it of some-
thing of value.
For reasons previously pointed out, we have held that a
plan to deprive a bank of money in a customer’s deposit
account is a plan to deprive the bank of “something of
value” within the meaning of the bank fraud statute. The
parties dispute whether the jury instruction is nonetheless
ambiguous or otherwise improper. We leave to the Ninth
Circuit to determine whether that question was fairly
presented to that court and, if so, whether the instruction
is lawful, and, if not, whether any error was harmless in
this case.
For these reasons, the judgment of the Ninth Circuit is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.