Fake-Identity Bank Accounts Constitute Bank Fraud Against the Bank; Deferred Restitution Survives a Pending Appeal

I. Introduction

In United States v. Omoruyi, the First Circuit affirmed the convictions and sentences of two brothers, Osakpamwan Henry Omoruyi (“Henry”) and Osaretin Godspower Omoruyi (“Osaretin”), convicted after jury trial of bank fraud (18 U.S.C. § 1344), conspiracy to commit bank fraud (18 U.S.C. § 1349), and conspiracy to commit money laundering (18 U.S.C. § 1956(h)). The brothers used fraudulent passports bearing their photos but different names to open TD Bank accounts (and other accounts) to receive proceeds from romance and unemployment-identity scams, and then withdrew funds using debit cards in those assumed names.

On appeal, they challenged (1) the sufficiency of the evidence for bank fraud and bank-fraud conspiracy; (2) the bank-fraud materiality instruction; (3) the court’s response to a jury question about conspiracy; (4) a sentencing enhancement for “authentication feature[s]” based on the passports; (5) the district court’s jurisdiction to impose restitution after a notice of appeal; and (6) the restitution proof and joint-and-several liability.

II. Summary of the Opinion

III. Analysis

A. Precedents Cited

1. Sufficiency and the bank’s property interest

• Shaw v. United States, 580 U.S. 63 (2016): Defendants leaned on Shaw for the proposition that a bank’s possessory right to deposited funds is “against all the world but for [the customer],” arguing they were the “customer[s] in fact” even though the accounts were opened in assumed names. The First Circuit rejected this framing: Shaw established that a bank has “something of value” at stake in deposit accounts, but did not resolve the “fake customer” scenario in defendants’ favor; here the accounts were opened using fraudulent identities, so the “customer” concept from Shaw did not map onto their argument.
• United States v. Díaz-Rosado, 857 F.3d 116 (1st Cir. 2017) (quoting United States v. Cruz-Díaz, 550 F.3d 169 (1st Cir. 2008)): The court applied the standard de novo sufficiency framework—viewing evidence and reasonable inferences in the government’s favor.
• United States v. Blasini-Lluberas, 169 F.3d 57 (1st Cir. 1999): Provided the conspiracy elements and the rule that agreement and participation may be proven circumstantially (express or tacit).
• United States v. Pérez-Greaux, 83 F.4th 1 (1st Cir. 2023) and United States v. Maldonado-Peña, 4 F.4th 1 (1st Cir. 2021): Cited for the Double Jeopardy consequence if convictions were reversed on insufficiency grounds (retrial barred), explaining why the court addressed sufficiency first.

2. Materiality and plain error

• United States v. Moran, 393 F.3d 1 (1st Cir. 2004): Treated as controlling circuit law for materiality in this context—“natural tendency to influence, or is capable of influencing” the decisionmaker. The district court’s instruction tracked this language and thus was not plainly erroneous.
• Maslenjak v. United States, 582 U.S. 335 (2017): Defendants argued for a stricter “different outcome” materiality requirement derived from Maslenjak (false statements in naturalization). The First Circuit held that Maslenjak had not been adopted by the circuit for bank fraud prosecutions and could not supply “clear or obvious” error.
• United States v. Langston, 110 F.4th 408 (1st Cir. 2024): Used to reject plain-error arguments lacking “binding on-point precedent.”
• United States v. Vega, 813 F.3d 386 (1st Cir. 2016) (quoting United States v. González-Vélez, 466 F.3d 27 (1st Cir. 2006)) and United States v. Paniagua-Ramos, 251 F.3d 242 (1st Cir. 2001): Reinforced the demanding plain error standard, especially for instructional claims.

3. Supplemental instructions and conspiracy scope

• United States v. Jadlowe, 628 F.3d 1 (1st Cir. 2010): Provided the preserved-instruction review framework—de novo for legal error; abuse of discretion for adequacy/clarity.
• United States v. Gonzalez, 570 F.3d 16 (1st Cir. 2009): Emphasized reviewing instructions “as a whole” and the district court’s discretion in wording/structure.
• United States v. Correia, 55 F.4th 12 (1st Cir. 2022): Invoked for the presumption that juries follow instructions.
• United States v. Zannino, 895 F.2d 1 (1st Cir. 1990): Used to deem waived a perfunctory, undeveloped “constructive amendment/variance” theory.

4. Sentencing enhancement (authentication feature)

• United States v. Leach, 89 F.4th 189 (1st Cir. 2023) and United States v. Ruiz-Huertas, 792 F.3d 223 (1st Cir. 2015): Provided the preserved sentencing-error review structure.

5. Deferred restitution jurisdiction

• United States v. Naphaeng, 906 F.3d 173 (1st Cir. 2018): Key circuit precedent confirming that, under the MVRA, a district court can retain jurisdiction to amend/enter restitution despite a pending appeal where restitution was deferred.
• Dolan v. United States, 560 U.S. 605 (2010): Cited for the principle that the court can retain authority past the 90-day period if it made clear before the deadline that restitution would be ordered (the panel noted defendants did not contest clarity).
• Manrique v. United States, 581 U.S. 116 (2017): Provided the conceptual structure: deferred restitution yields “two appealable judgments.”
• United States v. George, 841 F. 3d 55 (1st Cir. 2016) and United States v. Carpenter, 941 F.3d 1 (1st Cir. 2019): Used to distinguish forfeiture practice from deferred restitution; George involved a judgment that did not truly defer the relief in the same way.
• L. Offs. of David Efron v. Matthews & Fullmer L. Firm, 782 F.3d 46 (1st Cir. 2015): Cited for de novo jurisdiction review.

6. Restitution proof and joint-and-several liability

• United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012): Supplied the standard of review for restitution (abuse of discretion; factual findings for clear error; legal questions de novo).
• United States v. Simon, 12 F.4th 1 (1st Cir. 2021): Emphasized deference and that restitution requires only a “modicum of reliable evidence.”
• United States v. Carrasquillo-Vilches, 33 F.4th 36 (1st Cir. 2022) and United States v. Alphas, 785 F.3d 775 (1st Cir. 2015): Addressed MVRA “actual loss,” the definition of “victim,” and causation (direct and proximate harm; “adequate causal link”).
• United States v. Padilla-Galarza, 990 F.3d 60 (1st Cir. 2021): Once the government makes a prima facie showing, defendants must identify evidence for a specific reduction; speculation is insufficient.
• United States v. Salas-Fernández, 620 F.3d 45 (1st Cir. 2010) and United States v. Gallardo-Ortiz, 666 F.3d 808 (1st Cir. 2015): Confirmed relaxed evidentiary rules at restitution hearings and upheld reliance on sufficiently reliable information. Salas-Fernández also supported joint-and-several restitution without requiring apportionment by role.

B. Legal Reasoning

1. Bank fraud under 18 U.S.C. § 1344(1): “customer in fact” is not a safe harbor when the account is opened with fake identity

The panel concentrated on § 1344(1) (“scheme ... to defraud a financial institution”), holding the evidence sufficient where defendants used fraudulent passports to open FDIC-insured TD Bank accounts and then withdrew deposited scam proceeds with debit cards bearing the false names. The court rejected the core legal theory that they were “customers in fact” such that the bank could not be deprived of “something of value.” In the court’s view, Shaw v. United States supported the bank’s property interest in deposit funds, and did not re-characterize fake-identity account holders as “customers” whose “superior” interest defeats § 1344(1).

2. Conspiracy to commit bank fraud under 18 U.S.C. § 1349: circumstantial proof of agreement and acts

Applying Blasini-Lluberas, the court treated evidence of coordination—sharing account information with each other and third parties; movement of funds from “Nelson Bright” accounts into Henry’s personal account; and withdrawals—as sufficient for a rational jury to infer (i) an agreement, (ii) knowing and voluntary participation, and (iii) overt acts in furtherance.

3. Materiality instruction: circuit precedent controls absent on-point authority

Because the defendants did not object at trial, the panel evaluated the instruction for plain error and found none: the district court’s “natural tendency to influence or capable of influencing” definition matched United States v. Moran. The attempt to import Maslenjak v. United States failed at the “clear or obvious error” step because the First Circuit has not extended Maslenjak’s formulation to bank fraud, and United States v. Langston foreclosed plain-error relief absent binding on-point precedent.

4. Jury questions about conspiracy: permissible to convict one defendant even if the other is acquitted, so long as the conspiracy is “as charged”

The jury asked whether the government had to prove Henry conspired with Osaretin (and vice versa), or whether separate agreements with other conspirators could suffice. The district judge answered that jurors must find the conspiracy “as charged in the indictment,” that one defendant could be convicted even if the other was acquitted, and that jurors need not find the defendants conspired with each other so long as the government proved each defendant conspired with at least one other person as charged.

Reviewing the instructions “as a whole” (per United States v. Gonzalez), the panel found no misstatement of law and no abuse of discretion. The answer (twice) anchored the jury to “as charged in the indictment,” limiting the risk of conviction for an uncharged conspiracy. The court also relied on the presumption that juries follow instructions (United States v. Correia).

5. USSG § 2B1.1(b)(11)(A)(ii): fake passports contain “authentication feature[s]”

The district court applied a two-level enhancement for possession/use of an “authentication feature,” relying on passport identifying numbers as “means of identification” used to determine whether a document is counterfeit (USSG § 2B1.1 cmt. n.10(A) adopting 18 U.S.C. § 1028(d)(1)). Because the fake passports contained unique identifying numbers and were used to obtain the bank accounts central to the fraud, the panel found no error.

6. Restitution jurisdiction and timing: deferred restitution remains within district court authority despite a pending appeal

The panel treated the case as a paradigmatic MVRA deferral: restitution was deferred within the statutory window (18 U.S.C. § 3664(d)(5)), and a later amended judgment imposed restitution. Under Manrique v. United States, deferred restitution produces two appealable judgments. Under United States v. Naphaeng, the district court retained jurisdiction to enter restitution even while the initial appeal was pending. The defendants’ reliance on the forfeiture decision United States v. George failed because the restitution deferral here was explicit, and forfeiture doctrine differs (as explained via United States v. Carpenter).

7. Restitution proof and joint-and-several liability: relaxed evidentiary rules and statutory discretion

On proof, the panel reiterated the deferential “modicum of reliable evidence” standard (United States v. Simon) and held that victim impact statements and FBI Form 302s were permissible at restitution hearings (where normal evidence rules do not apply), citing United States v. Salas-Fernández and United States v. Gallardo-Ortiz. The government made a prima facie showing via trial testimony (six victims) and via victim impact statements/FBI 302s plus Probation Office findings and bank records (five victims). Defendants’ generalized suggestion that victims might be lying was treated as speculation, insufficient under United States v. Padilla-Galarza.

On joint and several liability, the court relied on 18 U.S.C. § 3664(h), which authorizes making each defendant liable for the full restitution amount or apportioning; it also cited Salas-Fernández for the proposition that a sentencing court is not required to apportion by role. Because the district court found both defendants contributed to victims’ losses, joint-and-several liability stood.

C. Impact

• Bank fraud theory in fake-identity account cases: The opinion underscores that defendants cannot avoid § 1344(1) by claiming to be the “real” customer when accounts are opened in assumed identities. It treats misrepresentation in account-opening and subsequent withdrawals as sufficient to establish a bank-directed fraud, with Shaw framed as supportive of the bank’s protectable property interest rather than a limitation favoring impostors.
• Materiality challenges under plain error: By reaffirming Moran and rejecting the attempted importation of Maslenjak absent circuit adoption, the decision signals that bank-fraud defendants face steep odds raising new materiality formulations for the first time on appeal—especially under Langston’s “binding on-point precedent” requirement.
• Conspiracy instructions and “as charged” anchoring: The decision provides a template for answering jury questions in multi-defendant conspiracies: stressing the indictment’s charged conspiracy while clarifying that one defendant’s guilt does not depend on another’s conviction.
• Sentencing enhancement for fake passports: The opinion strengthens the government’s ability to obtain USSG § 2B1.1(b)(11)(A)(ii) enhancements in document-based frauds where counterfeit passports/IDs are used to access financial systems; “authentication feature” is construed in a practical way tied to passport numbering.
• Deferred restitution practice in the First Circuit: The jurisdictional holding reinforces that MVRA deferrals are robust against the divestiture argument based on filing a notice of appeal, aligning district-court practice with Naphaeng and the two-judgment framework of Manrique.
• Restitution evidentiary flexibility: The endorsement of FBI 302s and victim impact statements—when sufficiently reliable and unrebutted—encourages streamlined restitution litigation, while leaving defendants the burden of producing concrete rebuttal evidence rather than conjecture.

IV. Complex Concepts Simplified

• 18 U.S.C. § 1344(1) vs. § 1344(2): § 1344(1) focuses on a “scheme to defraud” the bank itself; § 1344(2) focuses on obtaining bank property “by means of” false pretenses. The court upheld the conviction under § 1344(1) and did not need to rely on § 1344(2).
• “Materiality” (in jury instructions): A fact is “material” if it has a natural tendency to influence, or is capable of influencing, the decisionmaker—here, the bank’s decisions. The court rejected a stricter “would have changed the outcome” standard in this bank-fraud setting.
• Plain error review: If a defendant did not object at trial, reversal requires an error that is clear/obvious under existing law and that seriously affects fairness. Without controlling precedent, appellate courts rarely find “clear or obvious” error.
• Conspiracy and acquittal of a co-defendant: A defendant can conspire with “others known and unknown” and still be guilty even if another named defendant is acquitted, so long as the government proves the charged conspiracy and that the defendant joined it.
• “Authentication feature” (USSG § 2B1.1(b)(11)): Security/verification elements used to determine if a document is genuine—here, passport identifying numbers. Using or possessing counterfeit documents with such features can increase the guideline offense level.
• Deferred restitution under the MVRA: Courts may sentence first and determine restitution later (typically within 90 days, with some flexibility under Dolan). This produces an amended judgment that is separately appealable (Manrique).
• Joint and several liability: When multiple defendants contribute to a victim’s loss, the court may hold each responsible for the full amount (victims can collect from either), without needing to apportion.
• FBI Form 302: An agent’s report memorializing an interview. It is not sworn testimony, but can be used at restitution hearings if reliable; defendants must rebut it with evidence, not speculation.

V. Conclusion

United States v. Omoruyi reinforces several practical rules in federal fraud litigation: (1) opening accounts with fraudulent passports and withdrawing funds supports bank fraud against the bank under § 1344(1), and Shaw does not transform impostors into protected “customers”; (2) the First Circuit’s materiality standard remains the Moran “capable of influencing” test absent explicit adoption of Maslenjak for bank fraud; (3) carefully framed “as charged” supplemental instructions can answer jury confusion about whether co-defendants must have conspired with each other; (4) counterfeit passports readily trigger the USSG “authentication feature” enhancement; and (5) deferred restitution remains within district court jurisdiction despite a pending appeal, with restitution provable through reliable, non-trial materials and enforceable jointly and severally under the MVRA.