No Constructive Amendment Where §1344 Indictment Language Subsumes Both Prongs; Second Circuit Reaffirms Deference to “Intended Loss” Commentary and Jointly Undertaken Activity at Sentencing

Case: United States v. Rahmankulov, No. 23-6321-cr (2d Cir. Sept. 29, 2025) (summary order)

Court: United States Court of Appeals for the Second Circuit

Panel: Circuit Judges Eunice C. Lee, Sarah A. L. Merriam, and Maria Araújo Kahn

Disposition: Judgment affirmed

Note on Precedential Status: This decision is a summary order under Second Circuit Local Rule 32.1.1 and does not carry precedential effect, though it may be cited pursuant to Fed. R. App. P. 32.1.

Introduction

This appeal stems from a multi-faceted financial crimes prosecution centered on the use of shell companies and fraudulent bank accounts to launder proceeds from false Small Business Administration loans, computer hacking, and healthcare fraud. The government also proved an unlicensed cross-border money-transmission business operating between the United States, Uzbekistan, and Iran.

A jury in the Southern District of New York convicted Defendant-Appellant Djonibek Rahmankulov of: (1) conspiracy to operate an unlicensed money transmitting business (charged under 18 U.S.C. § 371), (2) conspiracy to commit money laundering (18 U.S.C. § 1956(h)), and (3) bank fraud (18 U.S.C. § 1344). On appeal, Rahmankulov advanced three principal claims:

• Constructive amendment of the indictment via the bank-fraud jury instruction (specifically, that the instruction permitted conviction under § 1344(1) even though the indictment allegedly charged only § 1344(2));
• Ineffective assistance of counsel, based on counsel’s summation and failure to object to the bank-fraud instruction; and
• Sentencing error in the loss calculation, including attribution of co-conspirators’ conduct and deference to “intended loss” in the Guidelines commentary under Kisor v. Wilkie.

The Second Circuit affirmed across the board, holding there was no constructive amendment, counsel’s performance did not fall below Strickland’s standard nor prejudice the defense, and the district court’s loss findings were proper (and, in any event, any potential error was harmless given the court’s alternative sentence).

Summary of the Opinion

• Bank fraud instruction and constructive amendment: No error. The indictment’s language—alleging a scheme carried out through false statements “to deceive” the bank—“subsumed” both prongs of § 1344 (defrauding a financial institution under subsection (1), and obtaining bank property by false pretenses under subsection (2)). The instructions and indictment tracked a single course of conduct with a single purpose. Even if there were instructional error, the evidence supported conviction under § 1344(2), so any error did not affect substantial rights.
• Ineffective assistance of counsel: The summation’s attacks on the government and its witnesses, while forceful, fit within a reasonable trial strategy to challenge credibility. Failure to object to the bank-fraud instruction was not deficient because the underlying objection lacked merit. No prejudice was shown given overwhelming evidence.
• Loss calculation: The district court properly attributed co-conspirators’ conduct under U.S.S.G. § 1B1.3 as reasonably foreseeable acts within the scope of the jointly undertaken activity, supported by particularized findings. The court reiterated that in the Second Circuit, the Guidelines commentary’s inclusion of “intended loss” is authoritative (United States v. Rainford; United States v. Zheng), notwithstanding Kisor-based arguments adopted by some sister circuits. Moreover, any error would have been harmless because the sentencing judge stated she would impose the same sentence even under a different loss calculation.

Detailed Analysis

Precedents Cited and Their Role

1) Constructive Amendment and Bank Fraud

• United States v. Khalupsky, 5 F.4th 279 (2d Cir. 2021): Defines constructive amendment as a significant divergence between the charge tried and that voted by the grand jury. The panel used Khalupsky’s formulation to anchor its conclusion that no such divergence occurred here.
• United States v. Danielson, 199 F.3d 666 (2d Cir. 1999): Jury instructions may constructively amend an indictment if they modify essential elements such that the jury could convict for an offense not charged; the opinion invokes Danielson’s “substantial likelihood” formulation and finds that threshold unmet.
• United States v. D’Amelio, 683 F.3d 412 (2d Cir. 2012): If the indictment and instructions relate to a single set of discrete facts forming a single course of conduct with the same purpose, there is no constructive amendment. The panel expressly relies on D’Amelio to conclude the indictment and instruction here were aligned.
• Loughrin v. United States, 573 U.S. 351 (2014): Clarifies that § 1344(1) and § 1344(2) define distinct crimes; § 1344(2) does not require intent to defraud a bank. The panel acknowledges the distinctness but still reads the indictment’s language as sufficiently encompassing both prongs.
• United States v. Atilla, 966 F.3d 118 (2d Cir. 2020): Instructional error can be harmless if the jury necessarily found guilt on a properly instructed theory. The panel uses Atilla’s logic to conclude that even if the instruction were overbroad, the evidence under § 1344(2) mooted prejudice.
• United States v. Moore, 975 F.3d 84 (2d Cir. 2020): Articulates the four-prong plain error test. The constructive amendment claim, unpreserved, is assessed under Moore.
• United States v. Bastian, 770 F.3d 212 (2d Cir. 2014): Notes constructive amendments are per se prejudicial in certain contexts; the panel effectively holds that threshold error is absent and, regardless, any potential instructional breadth did not affect substantial rights.
• United States v. Hild, 147 F.4th 103 (2d Cir. 2025): Restates the elements of § 1344, quoted by the panel. The order uses Hild to frame the bank fraud standard.¹

2) Ineffective Assistance of Counsel

• Strickland v. Washington, 466 U.S. 668 (1984): The two-pronged test (deficient performance and prejudice) governs. The panel applies Strickland to summation tactics and failure to object to the instruction.
• Harrington v. Richter, 562 U.S. 86 (2011): Prejudice must be a “substantial” likelihood of a different result. The court finds none given the evidentiary strength and curative instruction.
• Carew v. Morton, __ F.4th __, No. 23-7934, 2025 WL 2325907 (2d Cir. Aug. 13, 2025): Supports deference to strategic choices; the panel relies on it to frame counsel’s summation as potentially strategic, not categorically unreasonable.
• United States v. Regalado, 518 F.3d 143 (2d Cir. 2008): No deficiency in failing to make a meritless argument; applies directly to counsel’s non-objection to the bank-fraud instruction.
• United States v. Guang, 511 F.3d 110 (2d Cir. 2007): Overwhelming evidence defeats Strickland prejudice; applied here.

3) Sentencing, Loss, and Relevant Conduct

• U.S.S.G. § 1B1.3(a)(1)(A)-(B): Relevant conduct includes the defendant’s acts and, for jointly undertaken criminal activity, foreseeable acts of others in furtherance of the jointly undertaken activity.
• United States v. Studley, 47 F.3d 569 (2d Cir. 1995): Requires particularized findings on the scope of the defendant’s agreement and foreseeability. The panel identifies record-supported linkages among co-conspirators as sufficient.
• United States v. Rainford, 110 F.4th 455 (2d Cir. 2024): Holds that the § 2B1.1 commentary’s definition of “loss” including “intended loss” is authoritative. The panel confirms Rainford’s continued force.
• United States v. Zheng, 113 F.4th 280 (2d Cir. 2024), cert. denied, 145 S. Ct. 1899 (2025): Reaffirms Rainford; binds later panels.
• United States v. Peguero, 34 F.4th 143 (2d Cir. 2022): Panels are bound by prior panel decisions absent en banc or Supreme Court intervention; used to reject Kisor-based deviation.
• Kisor v. Wilkie, 588 U.S. 558 (2019): Limits deference to agency interpretations of ambiguous regulations. The panel acknowledges circuit splits applying Kisor to Guidelines commentary (e.g., Nasir, Campbell, Riccardi) but adheres to Rainford/Zheng in the Second Circuit.
• United States v. Jass, 569 F.3d 47 (2d Cir. 2009); United States v. Kent, 821 F.3d 362 (2d Cir. 2016): A procedural sentencing error is harmless if the district court plainly stated it would impose the same sentence regardless; applied here.

Legal Reasoning

A) No Constructive Amendment of the Bank Fraud Count

The defense contended that the indictment “tracked” only § 1344(2) (obtaining bank property by false pretenses), yet the instruction opened the door to conviction under § 1344(1) (defrauding the bank), thereby broadening the charge. Reviewing for plain error, the panel first found no error. Although Loughrin confirms that § 1344(1) and (2) are distinct, the indictment’s phrasing—alleging material misrepresentations “to deceive” the bank so the shell entities could open and transact—was read as subsuming a scheme to defraud the bank. Because the instruction and the indictment addressed a single course of conduct with the same purpose (facilitating deceptive bank account access to move illicit proceeds), D’Amelio’s “single set of discrete facts” test was met, foreclosing a constructive amendment.

Two further points strengthen the court’s conclusion:

• Requested instruction: Both parties asked the court to charge both prongs of § 1344 before trial, and the defense did not object when the instruction was given. While the panel did not expressly invoke “invited error,” the defense’s request undermined any plain-error claim.
• Alternative non-prejudice: Even assuming arguendo an instructional defect, the evidence would have rendered any error non-prejudicial under Atilla, because the jury necessarily would have convicted under § 1344(2)’s properly instructed theory on the facts presented (fraudulent statements used to obtain access to bank property).

B) Ineffective Assistance of Counsel

The ineffective assistance claim had two components. First, counsel’s summation accused prosecutors of misconduct and suborning perjury. The district court gave a curative instruction emphasizing the jury’s task to decide the case solely on the evidence. The panel concluded that, viewed in full context, counsel’s aggressive summation was a strategic credibility assault on cooperators and the prosecution’s case—within the broad range of reasonable professional assistance under Strickland and Carew. Second, counsel did not object to the bank-fraud instruction. Because the constructive amendment argument fails on the merits, non-objection cannot be deficient under Regalado. In any event, given the “overwhelming” proof of guilt, Harrington/Guang foreclose a showing of prejudice.

C) Loss Calculation and Relevant Conduct

The Probation Department calculated intended foreseeable losses exceeding $17.5 million across the schemes, leading to a 20-level increase under § 2B1.1(b)(1)(K) (loss between $9.5 million and $25 million) and a Guidelines range of 210–262 months (offense level 37, CHC I). The district court overruled the defense’s loss objections but imposed a below-Guidelines 121-month sentence.

On appeal, Rahmankulov challenged both the inclusion of co-conspirators’ conduct and the legitimacy of “intended loss” after Kisor. The panel rejected both challenges:

• Jointly undertaken activity, scope, and foreseeability: Citing Studley, the sentencing court made particularized findings that the defendant and co-conspirators implicitly coordinated laundering for the same pharmacies at the same time, using the same methods, routing proceeds to identical destinations (e.g., same Chinese company), and even sharing business accounts and memo-line entries. This supports an implicit agreement and foreseeability.
• “Intended loss” remains authoritative in the Second Circuit: While acknowledging sister-circuit decisions applying Kisor to limit commentary deference (Nasir, Campbell, Riccardi), the panel adhered to Rainford and Zheng, which hold that the commentary’s definition of “loss” encompassing “intended loss” is neither inconsistent with nor a plainly erroneous reading of § 2B1.1. Under Peguero, the panel is bound absent en banc or Supreme Court intervention.
• Harmlessness via alternative sentence: The district judge stated that she would impose the same sentence regardless of the Guidelines loss calculation. Under Jass and Kent, that statement renders any assumed error harmless.

Impact and Practical Implications

• Charging and instructing on § 1344: Even where an indictment’s language hews closer to § 1344(2), allegations emphasizing deception “of” the bank may be read to encompass § 1344(1) as well—at least where the charged scheme and the instructions share a single factual nucleus and ultimate purpose. Practically, prosecutors who intend to pursue both prongs should draft with deliberate clarity or expressly cite § 1344(1) and (2) to minimize appellate risk. Defense counsel should timely object to instructions that arguably exceed the indictment’s scope to avoid plain-error constraints.
• Plain error posture matters: The absence of a trial objection—and especially where the defense requested the instruction—can be fatal to constructive amendment claims. Appellate arguments invoking “per se prejudice” will falter if courts can identify a non-erroneous reading of the indictment or an alternative proper theory of guilt that the jury necessarily found.
• Strickland deference to summation strategy: Robust credibility challenges to cooperators and the government, even pointed ones, are typically viewed as within strategic discretion, especially when coupled with standard burden-of-proof arguments and when the court provides curative instructions. To show prejudice, defendants need more than speculation, particularly against strong evidence.
• Relevant conduct and implicit agreements: The panel’s acceptance of implicit coordination—shared accounts, synchronized timing, identical routing/memo practices—as evidence of a jointly undertaken activity underscores the importance of documentary and transactional linkages at sentencing. Defense teams should contest the scope of the agreement with granular, defendant-specific evidence to narrow loss attribution.
• “Intended loss” remains controlling in the Second Circuit: Despite a post-Kisor circuit split, Second Circuit panels remain bound by Rainford and Zheng. Practitioners should preserve the issue but recognize that current Second Circuit law treats the commentary’s “intended loss” definition as authoritative.
• Alternative sentences as an appellate safety valve: Clear statements by sentencing judges that the same sentence would be imposed independent of a disputed calculation can insulate sentences on appeal. Defense counsel should request explicit alternative findings when helpful; prosecutors should consider inviting such statements to support harmlessness.

Complex Concepts Simplified

• Bank fraud § 1344(1) vs. § 1344(2): Subsection (1) punishes schemes to defraud a bank; subsection (2) punishes obtaining bank property by false or fraudulent pretenses. They are separate crimes. Under (2), intent to defraud the bank itself is not required, but the defendant must obtain bank-controlled property by lies.
• Constructive amendment: Occurs when what the jury is allowed to convict on effectively broadens the indictment, creating a risk the defendant is convicted of an offense the grand jury did not charge. Courts look to whether the indictment and instructions describe the same core facts and purpose.
• Plain error review: A tough standard for unpreserved objections. The appellant must show a clear error that affected substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Ineffective assistance (Strickland): Defendants must prove both (1) that counsel’s performance was objectively unreasonable, and (2) that the deficiency likely changed the outcome. Strategic decisions, even if debatable, are usually given deference.
• Relevant conduct (U.S.S.G. § 1B1.3): For sentencing, a defendant can be accountable not only for his own acts but also for reasonably foreseeable acts of others in jointly undertaken criminal activity, limited by the scope of the defendant’s agreement.
• “Intended loss”: Under current Second Circuit law, “loss” under § 2B1.1 includes intended loss (the pecuniary harm the defendant purposely sought to inflict), even if actual loss is lower.
• Harmless sentencing error: If the record shows the district court would impose the same sentence regardless of a contested Guidelines issue, an appellate court may deem any error harmless.

Conclusion

In this non-precedential summary order, the Second Circuit affirms a conviction and sentence stemming from a complex money-laundering and fraud scheme. The court’s key holdings are: (1) a bank-fraud instruction did not constructively amend the indictment where the charging language—though closer to § 1344(2)—subsumed § 1344(1) and both instruction and indictment addressed the same core scheme; (2) ineffective-assistance claims premised on an aggressive summation and a non-objection to the instruction fail under Strickland given strategic latitude and lack of prejudice; and (3) the district court’s loss findings were supported by particularized evidence of a jointly undertaken activity, and, in any event, any error would be harmless due to an expressly stated alternative sentence. The panel also reiterates that, in the Second Circuit, the Guidelines commentary’s inclusion of “intended loss” remains authoritative under Rainford and Zheng, notwithstanding contrary developments in other circuits post-Kisor.

While not binding precedent, the order offers practical guidance. Indictments and instructions should align around a single, well-delineated factual scheme; defense counsel must preserve instructional objections; and sentencing litigants should marshal detailed, defendant-specific evidence on the scope of jointly undertaken activity. Finally, judges’ explicit alternative-sentence statements can be outcome-determinative on appellate review.

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Notes:
1) The order quotes United States v. Hild for the bank fraud standard and cites “8 U.S.C. § 1344”; the bank-fraud statute is in Title 18. This appears to be a typographical error in the order’s parenthetical.
2) The district court docket is referenced as United States v. Rasulov, No. 20-cr-653 (S.D.N.Y.), reflecting a multi-defendant proceeding in which Rahmankulov was tried.
3) This commentary is for informational purposes only and does not constitute legal advice.