NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 5, 2012*
Decided January 4, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐2056
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 07‐Cr‐309
MARQUIS JOHN ROEN, JR., Rudolph T. Randa,
Defendant‐Appellant. Judge.
ORDER
While on supervised release after serving time in federal prison for fraud offenses,
Marquis Roen opened a new checking account and told the bank’s employee that more than
$100 million from an inheritance soon would be wired into the account. The bank was
skeptical and quickly closed the account after discovering Roen’s criminal history. His
probation officer petitioned the sentencing court to revoke his supervised release, citing as
grounds that Roen had failed to pay restitution and violated a number of other conditions
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. The appeal is thus submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐2056 Page 2
including that he not commit more crimes or open a bank account without approval. The
district court agreed. The court revoked Roen’s supervision and imposed 24 months of
reimprisonment. Roen challenges the term of reimprisonment, and the government
concedes that a remand is warranted for the district court to explain, and possibly
reconsider, the length of that term.
The underlying facts are not in dispute. Roen was sentenced to 51 months in prison
after pleading guilty in 2008 to mail fraud, 18 U.S.C. § 1341, and fraudulent use of a social
security number, 42 U.S.C. § 408. These were his seventh and eighth convictions for fraud or
theft, and the underlying criminal conduct included writing hot checks on bank accounts
that were closed. He was released from prison and commenced his term of supervised
release in August 2011. The conditions of his supervised release required payment of
restitution and prohibited Roen from committing new crimes or opening a checking account
without supervision by his probation officer. Yet within a matter of weeks, Roen had gone
to a branch of Chase Bank and—having no assets or income—laid out his plan to transfer
millions into the account he opened with only a nominal deposit and without his probation
officer’s knowledge. When the bank discovered Roen’s background and raised the alarm,
the staff at the halfway house where he was living searched his room and discovered that
Roen already had written a check to AT&T for $300 on the Chase account. The search also
uncovered a cache of other evidence, including a purchase agreement for a vehicle, an
automobile insurance policy, an apartment lease, documents suggesting that Roen was
planning to buy and sell real estate, and routing numbers for various banks. Within a short
while, moreover, his daughter reported that Roen had used her social security number to
buy an insurance policy, and his son reported suspicious transactions on his debit card,
including a small charge to AT&T.
The probation officer initially asserted that Roen’s conduct in opening the Chase
account had violated 18 U.S.C. § 1014, which prohibits making false statements—material or
not—to financial institutions and other entities. See United States v. Wells, 519 U.S. 482,
489–99 (1997); United States v. Lane, 323 F.3d 568, 582–83 (7th Cir. 2003). A violation of § 1014
is a felony, and thus would have constituted a Grade A violation of Roen’s conditions of
release. See U.S.S.G § 7B1.1(a)(1). But he persuaded the government and the probation
officer that § 1014 is violated only by false statements made in connection with an application
for credit, which is incorrect. See United States v. Krilich, 159 F.3d 1020, 1028–29 (7th Cir.
1998). The government chose to argue instead that Roen had committed bank fraud, 18
U.S.C. § 1344, which also would be a Grade A violation. The sentencing guidelines
anticipate that someone on supervision with Roen’s criminal history will face another 30 to
37 months in prison for committing a Grade A violation, see U.S.S.G. § 7B1.4(a), but for him
the range was capped by the statutory maximum of 24 months, see 18 U.S.C. § 3583(e)(3);
U.S.S.G. § 7B1.4(b)(1).
No. 12‐2056 Page 3
In deciding that 24 months was appropriate, the district court agreed with the
government that Roen had committed bank fraud. The court appears to have rejected
Roen’s contention that his lies about having millions of dollars were not material, but the
judge did not explain his reasoning or specify whether Roen’s conduct had violated
subsection (1) or subsection (2) of § 1344. The elements of the two subsections are slightly
different. See United States v. Higgins, 270 F.3d 1070, 1073–74 (7th Cir. 2001) (explaining that
§ 1344(1) requires intent that bank suffer actual or potential loss, whereas § 1344(2) requires
material representation); United States v. LeDonne, 21 F.3d 1418, 1425 (7th Cir. 1994) (same).
The court also found that Roen had committed three related Grade C violations of his
conditions of release, and had failed to pay restitution. See U.S.S.G. § 7B1.1(a)(3).
On appeal Roen concedes that a preponderance of evidence is enough to establish a
violation of a condition of supervised release. See 18 U.S.C. § 3583(e)(3); United States v.
McIntosh, 630 F.3d 699, 703 (7th Cir. 2011); United States v. Flagg, 481 F.3d 946, 949 (7th Cir.
2007). He does not dispute that his actions constituted Grade C violations, which are
enough to sustain the revocation. See United States v. Berry, 583 F.3d 1032, 1033–34 (7th Cir.
2009). But the Grade C violations, says Roen, would have yielded a prison term of just 7 to
13 months under the guidelines, not the higher term for a Grade A violation. See U.S.S.G.
§ 7B1.4(a). And among the alleged violations, Roen continues, only the commission of a
crime would have been a Grade A violation. See id. § 7B1.1(a). Having convinced the district
court that his actions could not have violated § 1014, Roen now argues that neither did his
conduct constitute a crime under § 1344. For its part, the government stands behind the
district court’s decision to revoke Roen’s supervision but argues that meaningful appellate
review of the term of reimprisonment is impossible because the district court did not specify
whether Roen had violated subsection (1) or (2) of § 1344. The government thus proposes a
remand for the court to explain its reasons for finding that Roen violated § 1344 or, if the
court cannot, to reconsider Roen’s term of reimprisonment.
Roen contends that the checking account did not give him access to funds beyond
what he deposited, so he could not have intended to cause Chase actual or potential loss,
and could not have violated § 1344(1). See Higgins, 270 F.3d at 1073–74. Yet when he opened
the account, Roen departed bank with blank checks, and just as he did in committing the
frauds that landed him on supervised release in the first place, he could use those checks
with or without money in the account. In fact, although Chase took steps within hours to
prevent an actual loss, Roen already had written a $300 check that his bank balance would
not cover. Thus, a finder of fact could conclude that Roen’s conduct in writing that check is
circumstantial evidence of his intent to cause loss. See United States v. Ryan, 213 F.3d 347, 350
(7th Cir. 2000) (explaining that “knowingly writing checks on an inadequate account
balance” is “circumstantial evidence of intent” to commit bank fraud); United States v.
Moede, 48 F.3d 238, 241–42 (7th Cir. 1995) (same); United States v. Reaume, 338 F.3d 577,
No. 12‐2056 Page 4
580–82 (6th Cir. 2003) (explaining that evidence was sufficient to convict under § 1344(1)
when defendant put bank at risk by opening checking accounts with nominal deposits and
then wrote checks he did not intend to cover); United States v. Ratchford, 942 F.2d 702, 703–04
(10th Cir. 1991) (upholding conviction under § 1344(1) when defendant intentionally wrote
checks on accounts that did not have sufficient funds to cover those checks).
Roen also insists that, because Chase requires only a $25 initial deposit, his
misrepresentations could not have been material to the bank’s decision to open the checking
account, and thus his actions did not violate § 1344(2). See Higgins, 270 F.3d at 1073–74. Yet
materiality does not mean reliance: The misrepresentation need only be capable of
influencing the victim. See Neder v. United States, 527 U.S. 1, 16 (1999); United States v. Rosby,
454 F.3d 670, 674 (7th Cir. 2006); United States v. Reynolds, 189 F.3d 521, 525 (7th Cir. 1999).
Chase does not require millions of dollars to open a checking account, but neither must the
bank accept as a customer anyone with $25. A finder of fact might decide, then, that Roen’s
promise to bring significant funds to the bank could have made the bank more likely to
accept him as a customer. See United States v. Morganfield, 501 F.3d 453, 461–63 (5th Cir.
2007) (upholding convictions under § 1344(2) when defendant made small initial deposits to
open checking accounts in names of phony businesses, obtained checks for those accounts,
and wrote checks to fictitious employees in amounts exceeding initial deposits); United
States v. Khorozian, 333 F.3d 498, 501–02, 504–06 (3d Cir. 2003) (concluding that defendant’s
misrepresentations to bank, including that she would make initial deposit by wiring funds
into newly opened account, were material).
What matters, though, is what the district court found. Without a fuller explication
of the court’s reasons for deciding that Roen had violated § 1344—in particular whether his
conduct falls within subsection (1) or (2) or both—we cannot adequately assess the court’s
determination that Roen committed a Class A violation of his supervised release. And as
Roen points out, only a Class A violation could have brought his 24‐month term of
reimprisonment within the range set out in § 7B1.4(a). Accordingly, although we do not
disturb the district court’s exercise of discretion in revoking Roen’s supervised release, we
accept the government’s confession of error and remand for the court to further consider the
term of reimprisonment. If the court again concludes that Roen’s conduct constituted a
violation of § 1344, the court should make findings about each subsection it finds applicable.
We AFFIRM the revocation of Roen’s term of supervised release but VACATE the
24‐month term of reimprisonment and REMAND for further consideration consistent with
this order.