United States v. Moratalla is the court's first full decision of the term. NMCCA decision here.
Appellant pled guilty to various offenses including a bank fraud (18 U.S.C. § 1344) charged as a UCMJ art. 134 offense. She was sentenced to 60 months (reduced to 48 IAW the PTA), RiR, (a likely meaningless) $1K x six, and a DD.
I note she was not charged with a conspiracy to violate the federal statute, which the facts suggest was a viable charge.
The specification read,
[K]nowingly execute or attempt to execute a scheme or artifice to defraud a financial institution, ABNB Federal Credit Union, or to obtain moneys, funds, credits, and assets owned by or under the custody and control of the ABNB Federal Credit Union, by means of false or fraudulent pretenses, representations, or promises . . . .
(Emphasis in the original). Appellant challenged the providence of the plea to the bank fraud.
Appellant sought funds to invest in her personal “house flipping business.” In order to secure those funds, Appellant enlisted the help of a coworker—BM2 Whiskey—who agreed to apply for a loan at ABNB Federal Credit Union. Their plan was for BM2 Whiskey to falsely represent to ABNB that he would use the loan proceeds to purchase Appellant’s vehicle. However, neither BM2 Whiskey nor Appellant believed that BM2 Whiskey was actually purchasing the vehicle. Rather, their intent was for the funds obtained from ABNB to be treated as an investment by BM2 Whiskey in Appellant’s business. Nevertheless, at the time of the loan transaction, Appellant transferred the vehicle’s title to BM2 Whiskey—a hallmark of a legal sale of a vehicle from one individual to another. The transfer of the title raised the specter that—despite her intentions—Appellant did not commit bank fraud because she actually did sell her vehicle to BM2 Whiskey consistent with the terms of the loan agreement.
The providence inquiry "arguably raised some question as to the providence of her plea, those responses—in the full context of the colloquy—did not give rise to a substantial question. We therefore hold that the military judge did not abuse his discretion in accepting Appellant’s guilty plea and we affirm[.] For acceptance of a guilty plea there needs be,
[D]espite the existence of an otherwise adequate basis for a plea, “[i]f an accused ‘sets up matter inconsistent with the plea’ at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) [.]
From the NMCCA and CAAF opinion.
Appellant admitted telling the petty officer to lie about the purpose for the loan.
Appellant admitted she "partnered" with the petty officer to lie to get the loan for the business.
They both "considered" the money to be for the business.
The transfer of the title and use of the car did not happen until after the money was given to Appellant. (Huuum, isn't that how buying a car works?)
CAAF emphasizes the attempt language of the specification and the statute, and notes, the language of the federal statute is broad and covers "Whoever knowingly executes, or attempts to[.]
We highlight the fact that the statute “punishes not [only] ‘completed frauds,’ but . . . [also] fraudulent ‘scheme[s],’ ” Loughrin v. United States, 573 U.S. 351, 364 United States v. Moratalla, No. 21-0052/NA Opinion of the Court 7 (2014) (alteration in original) (emphasis added) (quoting Neder v. United States, 527 U. S. 1, 25 (1999)), including attempted fraudulent schemes. In light of Appellant’s conduct and the breadth of this statute, we conclude that Appellant’s actions constituted—at a minimum—an attempt to execute a scheme to defraud ABNB.
While I appreciate this may all make sense in the big scheme of things, I wonder if it would have been appropriate to also (or instead) charge a conspiracy and perhaps avoided some litigation?
Cheers, Phil Cave
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