Deferred MVRA Restitution Survives Notice of Appeal; Fake-Identity Account Opening and Withdrawals Constitute § 1344(1) Bank Fraud

Case: United States v. Omoruyi (1st Cir. July 15, 2026)
Panel: Gelpí, Thompson, Montecalvo, JJ. (opinion by Montecalvo, J.)
Posture: Consolidated appeals from convictions, sentences, and later-entered restitution orders.

I. Introduction

Background and parties. Brothers Osakpamwan Henry Omoruyi (“Henry”) and Osaretin Godspower Omoruyi (“Osaretin”) were convicted after an eight-day jury trial of (1) bank fraud (18 U.S.C. § 1344), (2) conspiracy to commit bank fraud (18 U.S.C. § 1349), and (3) conspiracy to commit money laundering (18 U.S.C. § 1956(h)). The evidence showed they used fake passports to open accounts (including at TD Bank) into which proceeds from romance scams, unemployment scams, and other impersonation schemes were deposited, followed by withdrawals and transfers.

Issues on appeal. The First Circuit addressed: (i) sufficiency of evidence for bank fraud and bank-fraud conspiracy; (ii) materiality instruction for bank fraud; (iii) the district court’s response to a jury question about whether the defendants needed to conspire with each other; (iv) application of the “authentication feature” enhancement under USSG § 2B1.1(b)(11)(A)(ii); (v) jurisdiction to enter restitution after the initial judgment was appealed; and (vi) the restitution proof and joint-and-several liability.

II. Summary of the Opinion

The First Circuit affirmed across the board: the convictions, sentences (including the two-level authentication-feature enhancement for fake passports), and the amended judgments ordering $615,805.65 in MVRA restitution jointly and severally. The court rejected the defendants’ attempt to reframe their fake-identity accounts as accounts held by them “in fact” and held that Shaw v. United States did not undermine bank-fraud liability on these facts. It further held that the Circuit’s established materiality instruction was not plainly erroneous and that the district court’s supplemental conspiracy instruction properly tethered the jury to the conspiracy “as charged in the indictment.” Finally, the court concluded the district court retained jurisdiction to set restitution after deferral, notwithstanding the pending appeal, and that victim impact statements and FBI Form 302s could constitute “reliable evidence” supporting restitution.

III. Analysis

A. Precedents Cited

1. Sufficiency review and conspiracy proof

• United States v. Díaz-Rosado and United States v. Cruz-Díaz supplied the de novo sufficiency framework: evidence is viewed “in the light most favorable to the prosecution,” drawing “all plausible inferences” in the verdict’s favor. This posture mattered because the defendants’ arguments largely depended on recharacterizing the inferences the jury was entitled to draw from fake documents, account openings, deposits, and cash withdrawals.
• United States v. Blasini-Lluberas provided the elements and proof principles for conspiracy (including that agreement and participation may be proven circumstantially and may be tacit). The court used this to treat exchanged account information, transfers between accounts, and withdrawals as evidence permitting inference of an agreement and overt acts in furtherance.
• United States v. Pérez-Greaux and United States v. Maldonado-Peña were cited for the Double Jeopardy consequence of a successful sufficiency challenge—explaining why sufficiency was addressed first.

2. Bank fraud and the attempted “customer” defense

• Shaw v. United States was the defendants’ principal authority. They attempted to convert Shaw’s description of a bank’s possessory rights in deposited funds (“against all the world but for [the customer]”) into a rule that withdrawals by the person physically controlling the account cannot deprive the bank of “something of value.” The First Circuit rejected that reading, reasoning that Shaw addressed a real customer’s deposit account and did not resolve (or help) defendants whose “customer” status was itself created by fraud and fictitious identity.

3. Materiality and plain-error constraints

• United States v. Moran supplied the controlling Circuit materiality definition (“natural tendency to influence, or is capable of influencing”). The court treated the district court’s instruction as effectively mirroring Moran.
• Maslenjak v. United States was invoked by the defense to argue for a more demanding causation-like materiality standard (“truth would have resulted in a different outcome”). The court held Maslenjak did not supply “binding on-point precedent” for bank fraud and thus could not establish “clear or obvious” error.
• United States v. Vega, United States v. González-Vélez, and United States v. Paniagua-Ramos framed the high bar for plain error, especially for alleged instructional errors.
• United States v. Langston supplied the key doctrinal gate: without “binding on-point precedent,” a defendant typically cannot show the “clear or obvious” error required for plain-error relief.

4. Supplemental conspiracy instruction

• United States v. Jadlowe supplied the preserved-instruction review framework (de novo for legal error; abuse of discretion for adequacy/clarity).
• United States v. Gonzalez emphasized reviewing instructions “as a whole” and recognizing district court discretion in wording.
• United States v. Correia was cited for the presumption that jurors follow instructions, important to rejecting the argument that the court’s answer necessarily led to “separate conspiracies.”
• United States v. Zannino was invoked to deem waived any undeveloped “constructive amendment” or “prejudicial variance” argument.

5. Sentencing enhancement (authentication feature)

• United States v. Leach and United States v. Ruiz-Huertas framed sentencing review and the mix of de novo guideline interpretation with clear-error review of factfinding.
• The court relied on the guideline commentary’s adoption of the statutory definition in 18 U.S.C. § 1028(d)(1), concluding that the unique identifying numbers on passports qualify as “authentication feature[s]” for USSG § 2B1.1(b)(11)(A)(ii).

6. Restitution timing, jurisdiction, proof, and allocation

• United States v. Naphaeng was the central First Circuit precedent: the district court retains MVRA restitution jurisdiction even while the initial appeal is pending when restitution was deferred. The court clarified that Naphaeng was not limited to cases with an earlier “provisional” restitution award.
• United States v. George was distinguished as a forfeiture case where the first judgment did not “actively defer” forfeiture; the court cited United States v. Carpenter to explain the distinction.
• Dolan v. United States and Manrique v. United States framed the MVRA timing and appellate-structure concepts: restitution can be determined after sentencing when properly deferred, and deferred restitution yields two appealable judgments.
• United States v. Chiaradio supplied the general restitution review framework.
• United States v. Simon emphasized the “modicum of reliable evidence” standard and the deferential posture to restitution determinations.
• United States v. Carrasquillo-Vilches and United States v. Alphas supplied MVRA “actual loss” and causation (“adequate causal link”) framing.
• United States v. Padilla-Galarza placed the burden-shifting point on defendants: once the government makes a prima facie showing, speculation is not enough to reduce restitution.
• United States v. Salas-Fernández and United States v. Gallardo-Ortiz supported considering evidence outside the Federal Rules of Evidence at restitution and approved joint-and-several liability principles; Salas-Fernández also underscored that apportionment is discretionary, not required.

B. Legal Reasoning

1. Why the fake-identity scheme satisfied § 1344(1)

The court’s sufficiency analysis turned on what § 1344(1) demands: a knowing scheme to defraud a federally insured financial institution. The defendants’ theory tried to remove the “bank” from the harm by claiming they were the “customer[s] in fact,” so the bank was not deprived of “something of value.” The First Circuit rejected this as a doctrinal mismatch with Shaw and a factual mismatch with a scheme premised on fictitious identities.

On the record evidence, the court emphasized:

• fake passports bearing the defendants’ photos but different names (“Clifford Bernard,” “Nelson Bright”);
• use of those documents to open TD Bank accounts (FDIC insured);
• deposits of scam proceeds into those accounts; and
• ATM withdrawals using debit cards bearing the fake names ($1,000 from the “Clifford Bernard” account; $3,600 from the “Nelson Bright” account).

The combination supported a rational inference that the bank was induced to provide banking services and release funds through a continuing identity-based deception—classic “scheme to defraud” evidence under § 1344(1).

2. Why the conspiracy convictions stood

Applying Blasini-Lluberas, the court held that agreement and participation could be inferred from circumstantial evidence such as exchanging account information, coordinating with overseas collaborators, transferring funds between accounts, and making withdrawals. Importantly, the court treated these acts as overt acts in furtherance, supporting bank-fraud conspiracy under § 1349.

3. Materiality: why the instruction survived plain-error review

The district court instructed that a material fact “has a natural tendency to influence or be capable of influencing” the decisionmaker. The First Circuit held this matched United States v. Moran. The defendants’ proposed “different outcome” instruction depended on extending Maslenjak v. United States to bank fraud—a move the court refused to make in the posture presented. Under United States v. Langston, absent binding on-point precedent, there was no “clear or obvious” error, ending the plain-error inquiry.

4. The jury’s conspiracy question: single charged conspiracy vs. “separate conspiracies”

The jury asked whether the government had to prove Henry conspired with Osaretin (and vice versa) or whether each could have separate agreements with other co-conspirators. The district court responded that the jury must find the conspiracy “as charged in the indictment,” but it “do[es] not need to find that they conspired with each other” so long as each defendant conspired with “at least one other person as charged.”

The First Circuit upheld this approach as consistent with conspiracy doctrine and with the indictment’s allegation that the defendants conspired “with each other and with others known and unknown.” Critically, the court treated the supplemental answer as tethering the jury to the charged conspiracy (repeatedly referencing “as charged”), while also correctly explaining a standard feature of conspiracy adjudication: one defendant may be convicted even if another is acquitted, depending on proof of agreement with at least one conspirator.

5. Authentication-feature enhancement: why fake passports counted

The court held that passports contain “authentication features” (e.g., unique identifying numbers used to determine whether the document is counterfeit or falsified) as defined via the guideline commentary incorporating 18 U.S.C. § 1028(d)(1). Because the defendants possessed and used passports with such features to open accounts used in the offense conduct, the USSG § 2B1.1(b)(11)(A)(ii) two-level enhancement was proper.

6. Restitution jurisdiction after appeal: why the district court retained power

The defendants argued that their appeal from the initial judgment divested the district court of jurisdiction to enter restitution later. The First Circuit rejected that argument by aligning the MVRA deferral mechanism with Supreme Court and Circuit precedent:

• 18 U.S.C. § 3664(d)(5) authorizes postponing loss determination (up to 90 days) when losses are not ascertainable before sentencing.
• Manrique v. United States confirms deferred restitution produces “two appealable judgments.”
• United States v. Naphaeng confirms the district court retains jurisdiction to enter amended restitution even while an initial appeal is pending in a deferred-restitution posture.
• United States v. George was distinguished (forfeiture; no active deferral), with United States v. Carpenter explaining why that matters.

7. Restitution proof and joint-and-several liability

On proof, the court emphasized restitution’s evidentiary flexibility: the Federal Rules of Evidence do not apply at restitution, and the order need only “reasonably respond[] to some reliable evidence” (a “modicum”). The district court narrowed restitution to 11 victims supported by trial testimony or by victim impact statements and FBI Form 302s (plus probation findings and bank records). The defendants’ generalized credibility attacks and speculation about victim complicity did not rebut the government’s prima facie showing under Padilla-Galarza.

On allocation, the court applied 18 U.S.C. § 3664(h): where multiple defendants contribute to a victim’s loss, the court may impose joint-and-several liability or apportionment. Relying on Salas-Fernández, the panel reiterated that apportionment is not required and the court need not calibrate restitution to each defendant’s relative role.

C. Impact

• Bank-fraud litigation involving identity manipulation. The decision reinforces that fake-identity account opening is not a “customer dispute” but an institutional deception supporting § 1344(1) liability. Defendants should expect Shaw to be read narrowly when the “customer” status is itself manufactured by fraud.
• Materiality challenges in the First Circuit. The opinion stabilizes the continued use of the Moran instruction in bank fraud cases, and signals that efforts to import Maslenjak-style “different outcome” language will face steep headwinds—especially on plain-error review.
• Conspiracy instructions where the indictment alleges “with each other and others.” Trial courts can respond to jury confusion by (i) tying deliberations to the indictment and (ii) clarifying that a defendant need not conspire with a particular named co-defendant if the charged conspiracy includes others, without necessarily creating a “multiple conspiracies” problem—so long as the response keeps the jury anchored to “as charged.”
• Restitution practice: timing and appeals. The jurisdiction holding reduces incentives for “appeal-first” strategies aimed at derailing deferred MVRA restitution. It also underscores that practitioners must treat deferred restitution as a second, separately appealable judgment under Manrique.
• Restitution proof. The opinion confirms that victim impact statements and FBI 302s can suffice when the court finds them reliable, and that defendants must do more than speculate to obtain reductions.
• Identity documents at sentencing. The decision supports routine application of USSG § 2B1.1(b)(11)(A)(ii) where counterfeit passports with identifying numbers are used to facilitate fraud, strengthening the link between “document sophistication” and guideline exposure.

IV. Complex Concepts Simplified

• 18 U.S.C. § 1344(1) (“scheme to defraud a financial institution”). This prong focuses on deception aimed at the bank (not merely the bank’s customer). Here, the deception was identity-based: the bank was induced to open and maintain accounts and release funds based on counterfeit passports.
• “Materiality.” A fact is “material” if it could influence the decisionmaker—not necessarily if it would have changed the outcome. The opinion treats the “capable of influencing” test as the First Circuit’s controlling baseline for bank fraud, at least for plain-error review.
• Plain error review. If a party did not object at trial, reversal requires a clear, obvious error that affected substantial rights and seriously impugned the proceeding’s fairness. Lack of “binding on-point precedent” often defeats the “clear or obvious” prong.
• Conspiracy (single vs. multiple). A single conspiracy can include different participants who do not all directly agree with each other, so long as the government proves the charged agreement and the defendant knowingly joined it. A jury can sometimes convict one defendant and acquit another without necessarily finding “separate conspiracies.”
• “Authentication feature” (USSG § 2B1.1(b)(11)(A)(ii)). These are features used to verify whether an ID document is genuine (e.g., unique numbers on passports). Possessing or using counterfeit documents with such features in the offense triggers the enhancement.
• MVRA restitution and deferred determination. Courts can sentence first and compute restitution later when losses need more time to verify. That later restitution order is still valid and separately appealable.
• Joint and several liability. Each defendant can be ordered to pay the full restitution amount when both contributed to the victim’s losses; apportionment is discretionary, not mandatory.

V. Conclusion

United States v. Omoruyi is a multi-issue affirmance with practical doctrinal clarifications in three recurring areas: (1) Shaw does not supply a safe harbor for defendants who use fictitious identities to open accounts and withdraw scam proceeds—such conduct readily supports bank fraud under § 1344(1); (2) the First Circuit’s established “capable of influencing” materiality instruction remains the operative standard for bank fraud, particularly under plain-error constraints; and (3) a notice of appeal from an initial judgment that expressly defers restitution does not divest the district court of MVRA jurisdiction to later enter a restitution order, which then becomes a separately appealable judgment. On restitution proof and allocation, the court reaffirmed deferential review, flexible evidentiary inputs, and the permissibility of joint-and-several liability where both defendants contributed to loss.