Bank fraud attorneys often deal with fact scenarios similar to the recent case of a former bank employee in Pennsylvania who was indicted on federal bank fraud and identity theft charges. According to PhillyBurbs.com, Jennell Digby worked for TD Bank in Philadelphia when she met Kashon Adade, one of her alleged co-conspirators. According to the indictment, Adade provided Digby with the Social Security Numbers of TD Bank customers. Digby would confirm that the Social Security Numbers were those of account holders then give Adade additional information about those account holders such as their names, account numbers, and account balances. Adade and others involved in the scheme allegedly used this information to withdraw over $70,000 from these account holders. If convicted, Digby could spend up to 41 years in prison and face a fine of $2 million.
Digby is charged with bank fraud under 18 U.S.C. § 1344. This provision provides that a person who "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." This provision provides a penalty of up to 30 years in prison, a $1 million fine, or both. Prosecutors allege Digby violated this statute because she, Adade, and their co-conspirators engaged in a scheme to defraud TD Bank by fraudulently using illegally obtained account information to withdraw bank funds.
In order for a defendant to be liable under § 1344, the government must also prove that the defendant made a material misrepresentation or concealed a material fact in committing the fraud. The materiality requirement is an element of fraud at common law. The Supreme Court has determined that it is also an element that the government must prove beyond a reasonable doubt under the bank fraud statute, even though the statute itself does not specifically require materiality. Typically, proving materiality requires showing one of two things. First, a matter is material if a reasonable person would consider the matter in determining how to act. Second, a matter is material if the person making the representation or omission knows that the other party considers it important in determining how to act, regardless of whether a reasonable person would consider the matter important or not. In other words, if the matter is sufficiently important that it could change the behavior of a reasonable party, then the matter is material.
In many cases, however, demonstrating that a material misrepresentation occurred is not very difficult. For example, in United States v. Miller, a federal appeals court upheld a bank fraud conviction under § 1344 where the defendant used his employer's ATM card to withdraw money from her account without her permission. The Court of Appeals held that each time the defendant put the card in an ATM, he was representing to the bank that he was authorized to withdraw funds. Additionally, the Ninth Circuit held that a borrower who misrepresents his or her ability to repay a loan from a bank or financial institution may be prosecuted under § 1344 because such statements could influence the lender. Thus, there are a number of activities that can give rise to liability under § 1344 provided that the government can show the defendant acted with an intent to defraud.