IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 97-10442
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIE ANTOINETTE OATES,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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September 4, 1997
Before GARWOOD, DEMOSS and PARKER, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant Marie Antoinette Oates (Oates), convicted of bank
fraud pursuant to her guilty plea, was sentenced to 15 months’
imprisonment with 5 years’ supervised release, assessed $100, and
ordered to make restitution in the amount of $9500. Oates appeals
the term of her imprisonment. We affirm.
Facts and Proceedings Below
This appeal involves a singularly offensive crime. In the
summer of 1996, Oates, a 25-year-old resident of Amarillo, Texas,
was hired to serve as “companion” to Margaret E. Mills, an 86-year-
old female suffering from Alzheimer’s Disease. Mills, fortunate
enough to enjoy the continued support of her son Robert,
nevertheless fell victim to what can only be described as the
unadulterated cruelty of the very woman employed to care for her in
the autumn of her life. Oates, whose conception of succor
apparently included stealing money from those most vulnerable in
our society, was arrested after attempting to negotiate a $50,000
time deposit agreement (certificate of deposit) in Mills’ name. On
three prior occasions, Oates had made unauthorized withdrawals from
accounts in Mills’ name totaling $9500.
The facts are no less disconcerting when couched in the
language of the factual resume to which Oates agreed under oath
when her guilty plea was accepted:
“On three separate occasions, the defendant fraudulently
obtained funds from Margaret Mills’ . . . by preparing an
account debit, presenting the debit ticket to the teller
and receiving the drawn funds. The defendant withdrew
funds in the same manner on September 9, 1996 in the
amount of $4,000.00, on September 16, 1996 and received
$2,500.00 and on September 18, 1996 and received
$3,000.00.
On October 30, 1996, the defendant went to Boatmen’s
First National Bank and attempted to negotiate a
$50,000.00 Time Deposit Agreement that had been issued to
Margaret E. Mills or Rob O. Mills. The police posed as
bank employees and apprehended the defendant after she
signed the $50,000.00 negotiable instrument (time deposit
agreement).”
Oates was indicted by a federal grand jury on November 26,
1996, for violating 18 U.S.C. § 1344, the federal bank fraud
statute. On February 10, 1997, Oates pleaded guilty to the one-
count indictment before the United States District Court for the
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Northern District of Texas, Amarillo Division.1 Following
1
The indictment reads as follows:
“INTRODUCTION
1. At all times material to this indictment First Bank
Southwest, Amarillo, Texas (hereinafter ‘FBS’) and Boatmen’s First
National Bank, Amarillo, Texas (hereinafter ‘BFNB’) were financial
institutions with deposits insured by the Federal Deposit Insurance
Corporation.
2. Beginning on or about September 9, 1996 and continuing to
on or about October 30, 1996 in the Amarillo Division of the
Northern District of Texas and elsewhere the defendant, MARIE
ANTOINETTE OATES, devised and intended to devise a scheme and
artifice to defraud and to obtain money and funds owned by and
under the custody and control of FBS and BFNB by means of false and
fraudulent pretenses, representations, and promises, well knowing
at the time that the pretenses, representations, and promises would
be and were false when made; the scheme and artifice so devised and
intended to be devised being in substance as follows:
3. It was part of the said scheme and artifice to defraud
that:
a. Defendant MARIE ANTOINETTE OATES was employed as a
companion for Margaret E. Mills.
b. Defendant MARIE ANTOINETTE OATES, in her position as a
companion to Margaret E. Mills, had access to various personal
records and documents of Ms. Mills.
c. Defendant MARIE ANTOINETTE OATES, on three separate
occasions, fraudulently obtained funds from Margaret E. Mills’
Checking Account Number 601118041 held at FBS, Amarillo, Texas, by
preparing an account debit, presenting an FBS teller with the
debit, and receiving the withdrawn funds. The withdrawals totaled
$9,500.000.
d. On or about October 30, 1996, Defendant MARIE ANTOINETTE
OATES attempted to negotiate a $50,000 Time Deposit Agreement
issued by BFNB to Margaret E. Mills or Rob O. Mills by presenting
such to a BFNB employee.
COUNT 1
1. The Grand Jury realleges all of the allegations contained
in the Introduction of the Indictment as if fully set forth herein.
2. On or about September and October, 1996, in the Amarillo
Division of the Northern District of Texas, defendant, MARIE
ANTOINETTE OATES, knowingly executed and attempted to execute the
scheme and artifice to defraud and to obtain money and funds by
means of false and fraudulent pretenses, representations and
promises, in that the Defendant attempted to negotiate at Boatmen’s
First National Bank, Amarillo, Texas a $50,000.000 Time Deposit
Agreement issued to Margaret E. Mills or Rob O. Mills; and the
Defendant caused funds to be withdrawn from the Checking Account of
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preparation of her presentencing investigation report, the district
court sentenced Oates on April 14, 1997.
Oates objected to the presentence investigation report’s
determination that the relevant loss for the purposes of
calculating a base offense level——$59,500——improperly included the
full face amount of the time deposit agreement, as Oates had yet to
present the endorsed instrument to the bank’s teller. Accordingly,
Oates argued that her intent to obtain by fraud the entire $50,000
had not been determined by a preponderance of the evidence and that
her offense level should therefore reflect only the amount she had
successfully obtained——$9500. Alternatively, Oates argued that she
should, in any event, be entitled to a three-level decrease in her
offense level if the full $50,000 was included in the relevant loss
amount under a section of the sentencing guidelines addressing
attempts.
The district court rejected Oates’ argument, and sentenced her
using a base offense level reflecting a loss of $59,500 without a
downward reduction. Oates appeals her sentence. We affirm.
Margaret E. Mills at First Bank Southwest, Amarillo, Texas, on at
least three separate occasions withe the total amount paid by FBS
to the Defendant exceeding $9,500.00, as described and set out
below:
DATE BANK AMOUNT
09/09/96 FBS $ 4,000.00
09/16/96 FBS 2,500.00
09/18/96 FBS 3,000.00
10/30/96 BFNB 50,000.00
All in violation of Title 18, United States Code, Section
1344.”
4
Discussion
On appeal, Oates makes essentially the same arguments as she
presented to the district court. Although acknowledging that the
district court was entitled to consider the face amount of the time
deposit agreement as a loss under U.S.S.G. § 2F1.1(b)(1)(F), Oates
contends that any increase in her base offense level as a result of
her indorsement of the time deposit agreement must be concomitantly
offset by the three-level reduction provided for by U.S.S.G. §
2X1.1(b)(1), the attempt, solicitation, and conspiracy provision,
because she had not consummated the fraudulent transaction at the
time of her arrest. The government contends that Oates had
completed all steps necessary to convert the time deposit agreement
and that the bank fraud offense was therefore completed, making the
attempt guideline inapplicable.
Oates was convicted of violating the federal bank fraud
statute, which provides, in pertinent part:
“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.” 18 U.S.C. § 1344 (West
Supp. 1997).
The applicable sentencing guideline for section 1344 offenses,
U.S.S.G. § 2F1.1, provides for a base offense level of six. For
losses exceeding $2000, the guideline calls for progressive
increases in the offense level using incremental loss amounts. For
5
a loss of more than $40,000 (but less than $70,000), the guideline
calls for an increase of five levels. For a loss of more than
$5000 (but less than $10,000), the guideline calls for an increase
of two levels. U.S.S.G. § 2F1.1(b)(1)(C) & (F). The district
court concluded that a five-level increase was merited in light of
the loss amount, which included both the $9500 in successfully
absconded funds and the $50,000 face amount of the fraudulently
endorsed negotiable instrument.2
Oates’ contention that there was no evidence to support a
finding that she intended to withdraw the entire actual monetary
amount represented by the endorsed time deposit agreement gives us
reason to address, once again, the proper determination of loss
under section 1344 of the federal bank fraud statute.3 “We review
a district court’s loss determination under the clearly erroneous
standard; as long as the finding is plausible in light of the
record as a whole, it is not clearly erroneous.” United States v.
Sowels, 998 F.2d 249, 251 (5th Cir. 1993), cert. denied, 114 S.Ct.
1076 (1994).
2
The district court applied both a two-level increase pursuant
to U.S.S.G. § 2F1.1(b)(2) for “more than minimal planning” and an
additional two-level increase pursuant to U.S.S.G. § 3A1.1(b)
because Oates “knew or should have known that [Mills] was unusually
vulnerable due to age, physical or mental condition, or that
[Mills] was otherwise particularly susceptible to the criminal
conduct.” Oates appeals neither such increase.
3
Oates acknowledges on brief that “while the trial court was
entitled to determine, under U.S.S.G. § 2[F]1.1, that Oates
attempted a theft of some portion of the $50,000 certificate of
deposit, it erred in denying Oates a three-point reduction in
offense level under U.S.S.G. § 2X1.1 for what was clearly an
attempt.”
6
This Court has long adhered to the view, supported by the
relevant application note, that the amount of loss for the purpose
of determining a base offense level in U.S.S.G. § 2F1.1(b)(1) is
the dollar amount placed at risk by a defendant’s fraudulent scheme
or artifice. United States v. Brown, 7 F.3d 1155, 1159 (5th Cir.
1993) (“Where a defendant attempts to pass altered or forged
checks, the face value of the checks reflects the intended loss,
even if the money is recovered or returned”); Sowels, 998 F.2d at
251 (using credit limit of stolen credit cards to determine loss
amount under U.S.S.G. § 2B1.1(b)(1)(theft)); United States v.
Wimbish, 980 F.2d 312, 315-16 (5th Cir. 1992) (rejecting check
forger’s contention that, under U.S.S.G. § 2F1.1(b)(1), “the face
value of the checks is neither the probable nor the intended loss,
but merely a possible loss” and stating that “Wimbish put the
victims at risk for the full loss, despite the subsequent recovery
of the amount Wimbish did not receive”), cert. denied, 113 S.Ct.
2365 (1993); United States v. Hooten, 933 F.2d 293, 298 (5th Cir.
1991) (affirming, in a section 1344 appeal prior to the
promulgation of U.S.S.G. § 2F1.1, the use of “the value of the
potential loss to the credit union”).
Of course, use of the dollar amount of funds or credit placed
at risk to determine the “loss” amount under section 2F1.1(b)(1) is
merely an application of Note 7, which states:
“Consistent with the provisions of § 2X1.1 (Attempt,
Solicitation or Conspiracy), if an intended loss that the
defendant was attempting to inflict can be determined,
this figure will be used if it is greater than the actual
loss. . . . For example, if the fraud consisted of
. . . representing that a forged check for $40,000 was
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genuine, the loss would be $40,000.” U.S.S.G. § 2F1.1
comment n.7.
We can see no discernible, qualitative distinction between a
fraudulently endorsed certificate of deposit and a forged check for
the purposes of measuring loss under section 2F1.1(b)(1).4 By
indorsing the instrument, Oates gained access to its face amount.
That Oates had yet to present the instrument for payment in full——or
because she arguably had the ability (and was not shown not to have
intended) to roll the amount over or otherwise change the form of
Ms. Mills’ investment——is not determinative of the amount of the
“loss” for the purposes of section 2F1.1(b)(1). Oates obtainment
of access to the funds represented by the time deposit agreement
placed the full amount at risk.5 The entire $50,000 face amount of
4
Oates does not challenge the characterization of the endorsed
time deposit agreement in her factual resume as a “negotiable
instrument.” Nor, for that matter, does the government challenge
Oates’ implicit contention that she could have presented the
endorsed instrument to the bank for incremental redemption.
5
Oates’ claim that, because she may have withdrawn funds in
smaller amounts over time (as she had when she fraudulently
withdrew $9500 in funds from Ms. Mills’ checking account over the
course of nine days, but had not completely depleted that account,
leaving about $500 in it), her “intent” could not have been to take
the entire $50,000, is without merit. Whether, after Oates
fraudulently gained access to funds that did not belong to her, she
had planned to milk her fraud over time through subsequent (and
equally fraudulent) “withdrawals” or had planned instead to
withdraw the money in full immediately does not alter the fact that
the entire amount of the deposit was placed at risk by her
intentional, fraudulent act. One who fraudulently endorses a
financial instrument by definition intends to gain access to the
funds it represents. In this context, such access to funds is
dispositive. Fraudulent access to funds achieved by a false and
fraudulent making or endorsement of a check or certificate of
deposit represents a very real loss to both the individual victim
and the financial institution that the federal bank fraud statute
was designed to protect. How Oates planned to utilize this
fraudulently obtained access is simply immaterial to the proper
8
the time deposit agreement was therefore properly considered by the
district court when it determined her base offense level under
U.S.S.G. § 2F1.1(b)(1).
Oates’ principal argument on appeal concerns the applicability
of U.S.S.G. § 2X1.1,6 the section addressing attempt, solicitation,
or conspiracy. Oates contends that, as she had not presented the
endorsed time deposit agreement to the bank’s teller at the time
she was arrested, her actions amount to attempted bank fraud and
she is therefore entitled to a three-level reduction for attempt.
The government argues that, upon her endorsement of the time
deposit agreement, Oates had completed all of the necessary steps
required for bank fraud (as it pertained to the $50,000 time
deposit agreement). That the police (posing as bank officers)
prevented her from presenting the fraudulently endorsed instrument
for payment, so the argument goes, should not entitle Oates to the
reduction.
We are persuaded that the district court did not err by
application of section 2F1.1(b)(1) here.
6
U.S.S.G. § 2X1.1(b)(1) provides, in pertinent part:
“If an attempt, decrease by 3 levels, unless the
defendant completed all the acts the defendant believed
necessary for successful completion of the substantive
offense or the circumstances demonstrate that the
defendant was about to complete such acts but for
apprehension or interruption by some similar event beyond
the defendant’s control.”
“Substantive offense” is defined in the Application Note to
mean “the offense that the defendant was convicted of soliciting,
attempting, or conspiring to commit.” U.S.S.G. § 2X1.1 comment
n.2.
9
refusing Oates the benefit of a three-level reduction in her base
offense level pursuant to U.S.S.G. § 2X1.1.
Oates relies on two Sixth Circuit cases that arguably support
her position. The first, United States v. Watkins, 994 F.2d 1192,
1194 (6th Cir. 1993), involved a check kiting scheme among five
separate banks. The scheme, in which the defendant deposited
worthless checks into accounts opened under aliases and then
proceeded to make cash withdrawals against the deposits, had been
interrupted at each bank at various stages of completion. Id. The
defendant pleaded guilty to bank fraud under section 1344 but
argued, like Oates, that the amount of loss should be determined
not by reference to the total amount of the worthless checks she
deposited (the instruments of her fraud), but rather by the amount
of cash withdrawn (or attempted to be withdrawn). Id. at 1195.
The district court disagreed, using the full amount of the
fraudulent deposits.
The Sixth Circuit held that, although the full face amount of
the deposits was the relevant loss amount under U.S.S.G. § 2F1.1,
it was nevertheless subject to the “limitation” provided by
U.S.S.G. § 2X1.1(b)(1)——namely, whether the defendant’s conduct
qualified as an “attempt” using withdrawal as a prerequisite of the
completed offense. The Sixth Circuit remanded for a determination
as to whether the check kiter “intended to, or could have,
completely drained her accounts of the funds purportedly contained
therein.” Id. at 1196.
Likewise in United States v. Aideyan, 11 F.3d 74 (6th Cir.
1993), the Sixth Circuit reversed a district court’s determination
10
that the defendant should be held accountable for the full amount
of 5 forged and stolen checks (over $40,000) when only 2 of the
forged checks (under $20,000) had ever been presented for payment,
the other three being found at his residence. The Sixth Circuit
held that, although the full amount applied for the purposes of
U.S.S.G. § 2F1.1, the defendant was nevertheless entitled to a
three-level decrease under 2X1.1 because the three unpresented
checks involved only an attempted offense. Id. at 77.
We do not find the Sixth Circuit cases persuasive here.
Although, arguably, section 2X1.1 would apply to reduce the amount
of loss where the requisite acts necessary to establish a completed
offense had yet to be undertaken, such a view is of little help to
Oates, who at the time of her arrest had performed all required
acts necessary to access the face amount of the fraudulently
endorsed time deposit agreement and was in a position to do so
immediately.
Furthermore, we consider the Seventh Circuit’s view of the
relationship between sections 2F1.1 and 2X1.1 to be the more
logical interpretation of the guidelines as they apply to the
determination of loss amounts in this context. In United States v.
Yusufu, 63 F.3d 505, 513-14 (7th Cir. 1995), the defendant was
convicted of altering money orders and checks deposited to a mutual
fund account in an amount totaling $90,000. The defendant appealed
the district court’s decision to include the entire $90,000 amount
as a loss when, in fact, he subsequently drew only one $5000 check
on the account. The defendant urged the Seventh Circuit to adopt
the Sixth Circuit’s Watkins position by recognizing a three-level
11
reduction in his base offense level due to the smaller amount he
attempted to realize from his fraud. Rejecting the defendant’s
argument, the Seventh Circuit held that the reference to section
2X1.1 was not as a limitation on the application of section 2F1.1’s
loss provision:
“Application Note 7 to § 2F1.1 states that using intended
loss where it is greater than actual loss is consistent
with § 2X1.1, but it does not draw upon § 2X1.1’s attempt
requirements for determining intended loss. Guideline §
2F1.1, along with § 2B1.1 . . . does employ these
provisions of § 2X1.1 to determine offense level in cases
of partially complete offenses (e.g., where a completed
fraud or theft was part of a larger fraud or theft that
was not complete). But this has nothing to do with the
amount of loss for a completed crime. It has only to do
with adding additional offense levels for attempted
crimes where the defendant was caught in the middle of a
larger scheme and is convicted only of the crimes he had
completed up to the point where he was caught.” Yusufu,
63 F.3d at 514.
We agree. Section 2F1.1 references section 2X1.1 for the limited
principle espoused in that section; namely, in the same manner that
an attempted offense triggers the same liability as if the offense
had been completed, the amount of the intended loss determines the
culpable loss (provided the offense is otherwise completed).
Under the plain language of section 1344, Oates was convicted
of a complete offense. No uncompleted offenses were added to
determine her base offense level. Upon her fraudulent endorsement
of the time deposit agreement, Oates gained access to funds through
a scheme or artifice, thereby defrauding a financial institution
and violating section 1344. See United States v. Saks, 964 F.2d
1514, 1517-19 (5th Cir. 1992) (“The fraudulent loan transaction
plainly exposed [the bank] and the other lenders to a risk of loss,
which is all that is required under § 1344.”); 18 U.S.C. § 1344
12
(“Whoever knowingly executes, or attempts to execute, a scheme or
artifice . . . to defraud a financial institution . . . .”).
Section 2X1.1 is inapplicable to reduce the base offense level of
Oates’ conduct, which indisputably constituted a “complete” offense
of bank fraud with regard to the fraudulently endorsed (but yet-to-
be presented) $50,000 instrument. See United States v. Studevant,
116 F.3d 1559, 1564 (D.C. Cir. 1997) (“The [2X1.1(b)(1)] adjustment
does not apply if ‘the defendant completed all the acts the
defendant believed necessary for successful completion of the
substantive offense.’ In this case, [the defendant] stole the
checks, filled them out and turned them over to the person he
believed was a fence. By so doing, he completed all of the acts he
thought he had to in order to complete the offense.”). The absence
of presentment——which was thwarted by the police——does not change
the completed nature of her offense. See Yusufu, 63 F.3d at 514
(distinguishing situation involving a trademark infringement scheme
where crime was complete with regard to sent boxes but not complete
with regard to others).
Conclusion
Because the district court properly included the full face
amount of the fraudulently endorsed time deposit agreement, and
because reduction of the concomitant base offense level was not
warranted by the completed nature of the bank fraud, we AFFIRM
Oates’ conviction and sentence.
AFFIRMED
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