Material Omissions as “False Entries” Under 18 U.S.C. § 1005 When Context and Duty to Disclose Render Them Literally False: Fifth Circuit’s Post-Thompson Clarification in United States v. Ryan

Introduction

In United States v. Ryan, the Fifth Circuit affirmed in full a jury verdict convicting Ashton J. Ryan, Jr.—the former President, CEO, and Board Chair of First NBC Bank—of conspiracy to commit bank fraud, bank fraud, and making false entries in bank records, arising from a multi-year practice of issuing loans to insolvent borrowers who used the proceeds to cover overdrafts and overdue payments. The case emerges from the bank’s collapse in 2017 and the FDIC Deposit Insurance Fund’s nearly $1 billion loss.

Ryan raised four principal challenges on appeal: (1) insufficiency of the evidence as to conspiracy, substantive bank fraud, and false entries; (2) legally erroneous jury instructions (including arguments invoking the Supreme Court’s decision in Ciminelli v. United States and the Court’s 2025 decision in Thompson v. United States); (3) improper admission of lay opinion and summary testimony under the Federal Rules of Evidence; and (4) government misconduct warranting dismissal due to the handling of privileged emails seized via search warrant.

The Fifth Circuit rejected each argument and affirmed. The opinion is especially significant for two clarifications:

Post-Ciminelli, bank fraud under 18 U.S.C. § 1344 remains grounded in deprivation of traditional property (loan money). Evidence that misrepresentations deprived a bank’s board or auditors of accurate information may be context, but convictions stand where the scheme targets money—not merely a “right to control” theory.
Post-Thompson, “false entries” under 18 U.S.C. § 1005 can be proven not only by affirmative lies but also by material omissions that render entries literally false in context when the defendant had an affirmative duty to disclose the omitted facts. The court expressly harmonizes Thompson’s literal-falsity requirement with a “false-by-omission” pathway under § 1005 grounded in duty and context.

Summary of the Opinion

The Fifth Circuit held that:

The evidence was sufficient for conspiracy and bank fraud under §§ 1349 and 1344. Ryan knowingly orchestrated a scheme to defraud the bank by inflating credit risk ratings, abusing incremental lending authority, and concealing loan repayment realities from the Board, auditors, and examiners to induce the bank to issue new loans to uncreditworthy borrowers—placing the bank at risk of financial loss.
The evidence was sufficient for false entries under § 1005. Counts involving affirmative statements were literally false; counts involving omissions were also literally false once contextualized within the Criticized Asset Action Plans, the bank’s capitalized-interest policy, and Ryan’s duty to disclose the true repayment sources and borrower status.
The jury instructions (which tracked Fifth Circuit Pattern Jury Instructions) were correct. No special property-definition instruction was required post-Ciminelli, and the court properly instructed on § 1005, including false entries by material omission where there is an affirmative duty to include the omitted fact. Any conceivable error was harmless given the weight of the evidence.
The district court did not abuse its discretion in admitting lay opinion testimony (e.g., from FDIC and auditors) or summary charts under Rules 701 and 1006. The testimony was grounded in personal knowledge and helpful to the jury; the summaries aided the jury’s understanding of voluminous records.
The district court properly denied dismissal for claimed government intrusion into attorney-client privilege. The government’s taint procedures were imperfect but not outrageous, and there was no showing of actual and substantial prejudice.

Analysis

Precedents Cited and How They Shaped the Outcome

Ciminelli v. United States, 598 U.S. 306 (2023): The Supreme Court rejected a broad “right to control” theory of fraud, holding federal fraud statutes criminalize only schemes to deprive victims of traditional property interests. Ryan argued that his case was an information-deprivation case foreclosed by Ciminelli. The Fifth Circuit distinguished Ciminelli: the government’s core theory targeted deprivation of loan money—a traditional property interest—not merely deprivation of decision-useful information.
United States v. Greenlaw, 84 F.4th 325, 346–47 (5th Cir. 2023): The Fifth Circuit reaffirmed that if the government marshals sufficient evidence for a primary, valid property-deprivation theory, the presence of a subsidiary, invalid theory (like right-to-control) does not undermine the convictions. The Ryan panel relied on Greenlaw to dispose of Ryan’s Ciminelli-based challenge.
Thompson v. United States, 145 S. Ct. 821 (2025): Interpreting § 1014, the Supreme Court held that “misleading” is insufficient; the statute requires literal falsity. Ryan argued this logic undermined his § 1005 convictions. The Fifth Circuit harmonized Thompson with § 1005: statements can be literally false “in context,” and material omissions can render an entry false where a specific duty to disclose exists. The court emphasized Thompson’s recognition that context matters in assessing falsity and applied that principle to § 1005’s “false entry” language.
United States v. Chaney, 964 F.2d 437, 448–49 (5th Cir. 1992): Provided the elements of § 1005 and clarified that intent to defraud bank officers, auditors, or examiners suffices; no need to show intent to cause actual bank injury. The panel applied Chaney’s elements and intent standard.
United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011): Standard for sufficiency of the evidence—any rational trier of fact, evidence viewed in the light most favorable to the verdict, accepting credibility choices in favor of the government. Anchored the deferential review, especially on intent.
Jury-instruction authorities: United States v. Hamilton, 46 F.4th 389 (5th Cir. 2022); United States v. Uhlenbrock, 125 F.4th 217 (5th Cir. 2024); United States v. Arthur, 51 F.4th 560 (5th Cir. 2022); Westport Ins. Corp. v. Pa. Nat’l Mut. Cas. Ins. Co., 117 F.4th 653 (5th Cir. 2024). Collectively establish deference to pattern instructions, the requirement that instructions be correct statements of law and sufficiently clear, “substantial latitude” in phrasing, and harmless-error review.
Evidence rules: United States v. Yanez Sosa, 513 F.3d 194 (5th Cir. 2008) (Rule 701 lay vs expert distinction); United States v. Earnest, 132 F.4th 905 (5th Cir. 2025) (Rule 1006 summaries of voluminous records); United States v. Armstrong, 619 F.3d 380 (5th Cir. 2010) (summary witnesses may make reasonable inferences); United States v. Girod, 646 F.3d 304 (5th Cir. 2011) (harmless error standard).
Government-misconduct/privilege cases: United States v. Sandlin, 589 F.3d 749 (5th Cir. 2009); United States v. Mauskar, 557 F.3d 219 (5th Cir. 2009); United States v. Carr, 83 F.4th 267 (5th Cir. 2023); United States v. Johnson, 68 F.3d 899 (5th Cir. 1995); United States v. Fulmer, 722 F.2d 1192 (5th Cir. 1983). These decisions set the high bar for dismissal (outrageous conduct “shocking to the universal sense of justice”) and require proof of actual and substantial prejudice—standards Ryan could not meet.
United States v. Yates, 16 F.4th 256 (9th Cir. 2021): Ryan invoked Yates’s rejection of salary-deprivation and information-deprivation theories. The Fifth Circuit found Yates inapposite because the government’s central theory here targeted loan money, rendering any non-money theories immaterial.

Legal Reasoning

1) Conspiracy and substantive bank fraud (§§ 1349 and 1344)

The government proved a multi-year “month-end scramble” in which Ryan and others extended new loans to overdrawn and past-due borrowers so they could pay existing debts and avoid appearing on Board-facing reports. This violated the bank’s policy on interest capitalization for non-creditworthy borrowers.
Ryan manipulated credit risk ratings (inflating ratings to “5” or higher) to fit transactions within his “incremental authority” (up to $1 million “once per customer relationship”) and evade proper committee review. He also signed credit packages and change-in-terms documents that mischaracterized borrower status, repayment sources, and delinquency.
The court emphasized that the fraud was directed at obtaining loan money for uncreditworthy borrowers—traditional property—not at merely depriving the Board of accurate information. Evidence of misleading Board/auditor/examiner communications established materiality and intent but did not convert the case into a Ciminelli-type information-deprivation prosecution.
The court also rejected defenses that (a) the conduct at most violated civil banking policies; (b) Ryan’s general disclosures negated intent; (c) “working capital” language authorized paying past obligations. The record showed deliberate concealment of borrowers’ true repayment sources and statuses, and repeated end-runs around bank controls—the classic indicia of intent to defraud and to expose the bank to risk of loss.

2) False entries in bank records (§ 1005) after Thompson

Affirmative false statements (Counts 38–40): For borrower Kenneth Charity, Ryan authorized extensions citing a CPA’s “resignation due to work overload,” when in fact the CPA had fired Charity for failure to provide routine financial information. He also falsely checked “no” to questions about default, inability to obtain similar credit, and cash-flow issues despite contrary knowledge. These are straightforward literal falsehoods.
Material omissions (Counts 41, 43, 44, 47, 48): In Criticized Asset Action Plans for borrower Gary Gibbs, Ryan listed a “5” risk rating, stated loans were “performing as agreed,” and described status as “stable” while omitting that loan proceeds were being used to pay prior loans and clear overdrafts—precisely the prohibited capitalization of interest scenario flagged by bank policy and the FDIC’s concern. Given the purpose of these plans (to inform the Board about resolving risk) and Ryan’s duty to include material facts, the omissions rendered the entries literally false in context.
Harmonizing Thompson and § 1005: Thompson held that § 1014 requires literal falsity, not mere misleading statements. The panel applied that concept to § 1005 and held that omissions can be “false” where the context and a duty to disclose cause the entry to communicate a literal untruth. In other words, “misleading but true” is insufficient; “misleading and false in context due to omission of required facts” suffices under § 1005.

3) Jury instructions

The court approved instructions tracking Fifth Circuit Pattern Jury Instructions for §§ 1344/1349 and § 1005. No special “property” definition or Ciminelli-specific gloss was required given the money-focused theory and evidence.
On § 1005, the panel endorsed the pattern’s “false entry by material omission” formulation, which requires an affirmative duty to include the omitted statement. That requirement, coupled with Thompson’s context-sensitive falsity analysis, safeguarded the literal falsity requirement.
Even assuming any instructional imperfections, the court found any error harmless given the overwhelming evidence.

4) Lay and summary testimony

Testimony from FDIC examiners, auditors, and bank counsel was admitted under Rule 701 because it reflected personal observations and helped the jury understand the bank’s processes and what they were told; it did not require specialized expert methodologies.
Summary charts and demonstratives were proper under Rule 1006 in light of voluminous, complex financial records; any inaccuracies were non-prejudicial given the magnitude of properly admitted evidence.

5) Attorney-client privilege and dismissal

The government’s taint procedures—IT extraction, term-based screening for privilege by a filter attorney outside the prosecution team, and release only of non-hits—were “imperfect” but not outrageous. There was no evidence of misuse by the case agent or any prejudice. Dismissal is reserved for rare circumstances of shocking misconduct and proven actual and substantial prejudice; neither was present.

Impact

§ 1005 prosecutions after Thompson: The Fifth Circuit provides a clear path for “false entry by omission” cases. Prosecutors must tie omissions to (a) an affirmative duty to disclose in the specific record and (b) a context that makes the entry literally false. This aligns § 1005 with Thompson’s literal falsity rule while preserving enforcement where omissions distort the truth of a bank record.
Bank fraud post-Ciminelli: The opinion reaffirms that § 1344 remains focused on deprivation of a bank’s money. Evidence about misleading a board, auditors, or examiners is probative of materiality and intent, but viability turns on whether the scheme targets money, not merely information. Pattern instructions suffice; no special property instruction is required where the government’s theory is money-focused.
Governance, audit, and regulatory oversight: The case underscores that board oversight, external audits, and FDIC examinations are only as good as the inputs they receive. Misstatements in credit packages, change-in-terms forms, and criticized-asset plans expose banks to catastrophic loss and criminal liability for those who falsify them.
Evidence management in complex financial trials: The court’s acceptance of lay testimony from regulators and auditors and the use of Rule 1006 summaries will be relied upon in future large-record fraud cases, reducing friction over the presentation of complex loan and accounting data to juries.
Privilege protocols in digital searches: While the court did not prescribe a single protocol, it signaled that good-faith taint team procedures and search-term screening generally pass muster absent misuse or prejudice. Defendants seeking dismissal must show both outrageous intrusion and actual, substantial prejudice—a demanding showing.

Complex Concepts Simplified

Bank fraud (§ 1344): A scheme to defraud a financial institution of money or property, carried out knowingly and with intent to defraud, using materially false statements or concealment, and placing the institution at risk of loss.
Conspiracy (§ 1349): Agreement between two or more persons to commit bank fraud, with knowledge of the unlawful purpose and intent to further it. The agreement may be inferred from coordinated actions and circumstances.
False entries (§ 1005): Making or causing to be made a false entry in any book, report, or statement of a federally insured bank, knowing it is false, with intent to injure or defraud the bank or its officers/auditors/examiners. After Thompson, a statement must be literally false; an omission can qualify if there is a duty to disclose and the omission makes the entry false in context.
Right-to-control theory (Ciminelli): An invalid prosecutorial theory that treats deprivation of decision-useful information as “property.” Courts now require deprivation of traditional property (e.g., money).
Literal falsity vs. misleading: “Misleading but true” statements cannot sustain certain false-statement offenses. However, if context and duty to disclose cause a record to communicate an untruth, the entry may be literally false even if composed of otherwise true fragments.
Incremental authority: A bank officer’s limited authority to approve small or urgent loans without full committee review. Abuse of such authority, coupled with falsified ratings, can evidence fraudulent intent.
Criticized Asset Action Plan: A risk-management tool prepared for substandard or risky loans, typically for Board and examiner review, describing the borrower’s status, the reason for criticism, and the plan to resolve risk. Its purpose creates a duty to include core facts bearing on repayment and borrower viability.
Capitalization of interest: A policy-sensitive practice by which loan proceeds are used to pay interest or overdue debt. For distressed borrowers, such practices can mask delinquency and inflate asset quality; misrepresenting such uses is a red flag for fraud.
Rule 701 vs. Rule 702: Lay opinion must derive from everyday reasoning based on personal perception; expert testimony applies specialized knowledge. Examiners and auditors may testify as lay witnesses about what they observed and were told if they do not apply specialized methods or offer expert-style causation or norms opinions.
Rule 1006 summaries: Allows charts and summaries to prove the contents of voluminous records that cannot be conveniently examined in court. Summaries must fairly represent the underlying admissible data; minor inaccuracies are subject to harmless-error analysis absent substantial prejudice.
Outrageous government conduct and prejudice: Dismissal for privilege violations requires conduct shocking to universal justice and proof of actual, substantial prejudice. Imperfect but good-faith taint procedures rarely meet that standard.

Conclusion

United States v. Ryan is a comprehensive reaffirmation and refinement of federal bank fraud and false-entry doctrine in the Fifth Circuit. The court draws a clear post-Ciminelli line: what matters for § 1344 is money. Misstatements to boards, auditors, and examiners can and do prove materiality and intent where the scheme targets loan proceeds—a traditional property interest.

Most notably, the opinion provides important post-Thompson guidance for § 1005. It confirms that prosecutors may proceed on a “false-by-omission” theory where an affirmative duty to disclose exists and context renders the entry literally false. The Fifth Circuit’s endorsement of pattern instructions that incorporate a duty-to-disclose element for omissions will likely shape charging, instruction, and appellate strategies in financial-institution cases across the circuit.

The court also validates pragmatic trial management in complex financial prosecutions—authorizing lay testimony from regulators and auditors and the use of Rule 1006 summaries—while maintaining exacting standards for dismissal based on alleged privilege intrusions.

The key takeaway: After Ryan, defendants cannot use Ciminelli to recast money-focused frauds into mere information-deprivation cases, nor can they deploy Thompson to immunize omissions that, in context and under a duty to disclose, make bank records literally false. The decision materially strengthens the Fifth Circuit’s framework for policing bank misconduct that hides credit risk and repayment realities from corporate governance bodies and federal examiners.