dissenting:
I respectfully dissent. Although I agree that the evidence will support a conviction under section 1344,1 it does not support this conviction under section 1344(1), which makes it unlawful to defraud a financial institution. Instead, the evidence supports a violation of section 1344(2), which makes it unlawful to obtain monies from a financial institution by means of false pretenses or representations.
The bank was defrauded of no monies, see McNally v. United States, 483 U.S. 350, 358-359, 107 S.Ct. 2875, 2880-2881, 97 L.Ed.2d 292 (1987), notwithstanding the strained efforts of the majority to say that it was. Of course, the officers and owners of the bank were fully aware of the actual terms and conditions of the loan. Second, the loan the defendants actually received, as far as the purposes of this opinion are concerned, was backed by adequate collateral. Third, the bank as an institution was relieved of regulatory problems by the infusion of $5,000,000. Finally, the transaction effectively resulted in the bank obtain*1527ing additional guarantors on a delinquent loan. In short, it is only in hindsight, with the knowledge that the Saks and Spruill loan “went bad” later, that we can say that the bank suffered a loss in the transaction. The evidence presented is simply insufficient to support a conviction under section 1344(1);2 or stated another way, section 1344(1) does not reach the conduct described by the majority.3
Saks and Spruill, however, clearly obtained money by falsely representing in their application the recipients of the loan and the use of the funds. Their application represented that Saks and Spruill would receive a loan of $19.3 million, and that the funds would be used for the development of the shopping mall on the Corpus Christi tract, when the defendants actually received only $14.3 million, with $5 million going through Stockman to pay off the Chaucer Village loan at Security.
Indeed, receipt of money from the banks under false pretenses is exactly the crime for which they were indicted.4 Unfortunately, however, the jury was only instructed under section 1344(1). Thus, although the text of the indictment charged the defendants with violating section 1344(2), and although the evidence sufficiently establishes this crime, the jury was given no instruction to convict them of this crime. Because I do not think the evidence is sufficient for them to be convicted of 1344(1), and because the court failed to instruct the jury on 1344(2), I would apply the plain error standard and remand for a new trial.
. 18 U.S.C. § 1344 provides:
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, 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;
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
. The majority cites United States v. Castiglia, 894 F.2d 533, 536-38 (2d Cir.1990); United States v. Walker, 871 F.2d 1298, 1306-07 (6th Cir.1989); and United States v. Shively, 715 F.2d 260 (7th Cir.1983), to support the proposition that a borrower may defraud a bank under section 1344(1) by omitting from a loan application the fact that a beneficiary of the loan is a bank officer. P. 1519. These cases, however, are inapposite. In none of these cases was a borrower charged with bank fraud under section 1344(1), as opposed to misapplication of funds or making false statements. See Castiglia, 894 F.2d at 535 (borrowers charged with conspiracy, 18 U.S.C. § 371; with aiding and abetting a misapplication of funds, 18 U.S.C. §§ 2 and 656; with making false entries, 18 U.S.C. § 1005; and with perjury, 18 U.S.C.A. § 1623); Walker, 871 F.2d at 1306 (sole defendant is bank officer; pinpoint cite is to discussion of officer’s liability under 18 U.S.C. § 656 in United States v. Krepps, 605 F.2d 101 (3rd Cir.1979) (in which a bank officer was the sole defendant)); Shively, 715 F.2d at 264 (borrower indicted under 18 U.S.C. §§ 656 and 1014 but convicted only under § 656).
. Whatever happened to the rule that penal statutes are to be strictly construed?
.The indictment charges, for example:
COUNT TWO — BANK FRAUD [18 U.S.C. §§ 1344, 2]
..... Defendants ... SAKS and SPRUILL knowingly executed and attempted to execute, a scheme and artifice to defraud Meridian, Security, and Peoples and to obtain moneys, funds, and other property owned by or under the custody or control of Meridian, Security, and Peoples by means of false and fraudulent pretenses, representations, and promises by performing the following act in execution of the scheme:
3. Defendants ... SAKS and SPRUILL signed and caused to be signed a Loan Agreement which falsely represented that the purpose of the $19.3 million loan was for business related to Omni and omitted any reference to Ray Stockman, when in truth and in fact, as the defendants well knew, $5 million of the'$19.3 million in loan proceeds would be channelled through Ray Stockman back to Security for payment on the Chaucer Village loan, a loan totally unrelated to the loan for which the $19.3 million was intended.
All in violation of Title 18, United States Code, Sections 1344 and 2.
Each count repeated this language in its description of the crime.