Reaffirming Loughrin: No Bank Fraud Under 18 U.S.C. § 1344(2) Absent a Misrepresentation to a Bank

Introduction

This commentary analyzes the Seventh Circuit’s decision in United States v. Tonya Robinson & Albert Smith, Nos. 24‑1910 & 24‑2310 (7th Cir. Dec. 15, 2025). The case arises from a kickback scheme run by senior officials of the Housing Authority of South Bend (“Housing Authority”), which receives federal funds from the Department of Housing and Urban Development (HUD) to provide affordable housing.

Tonya Robinson (Executive Director) and Albert Smith (Asset Director) orchestrated sham maintenance and renovation projects. They had contractors submit invoices for work that was never performed. The Housing Authority paid those invoices, and the contractors then kicked back portions of the proceeds to Robinson and Smith. Federal prosecutors charged them with:

• Conspiracy to commit bank and wire fraud (18 U.S.C. § 1349);
• Substantive bank fraud (18 U.S.C. § 1344(2));
• Wire fraud (18 U.S.C. § 1343); and
• Federal program theft (18 U.S.C. § 666(a)(1)(A)).

After a jury trial, both defendants were convicted on almost all counts; Robinson had a partial acquittal on one wire fraud count. On appeal they challenged:

• the sufficiency of the evidence for the bank fraud counts (raised for the first time on appeal);
• the sufficiency of the evidence for one wire fraud count (Count 8); and
• (as to Smith) a two-level sentencing enhancement for abuse of a position of trust under U.S.S.G. § 3B1.3.

The Seventh Circuit:

• Reversed all bank fraud convictions under § 1344(2), holding that the government failed to prove any false statement that went to a bank or naturally induced a bank to part with money; but
• Affirmed the wire fraud convictions and Smith’s sentence, including the “position of trust” enhancement; and
• Remanded for a limited correction of a clerical error in the restitution judgment.

The opinion, authored by Judge Scudder with a concurrence by Judge Easterbrook, is significant for at least three doctrinal reasons:

1. It robustly applies the Supreme Court’s decision in Loughrin v. United States, 573 U.S. 351 (2014), to reject bank fraud liability where fraud is directed at a non-bank victim and the bank simply honors valid checks.
2. It applies the plain error doctrine to sufficiency-of-the-evidence challenges not preserved under Rule 29—while openly acknowledging potential tension with the post‑2002 text of Federal Rule of Criminal Procedure 29 and the Supreme Court’s civil analogue in Unitherm.
3. It clarifies how a HUD “drawdown” wire transfer can satisfy the wire fraud statute, and how managerial discretion by a public housing official can amount to a “position of trust” under U.S.S.G. § 3B1.3.

Summary of the Opinion

The Seventh Circuit’s core holdings can be summarized as follows:

1. Bank Fraud Convictions Reversed

• The government proceeded under 18 U.S.C. § 1344(2), which criminalizes obtaining bank property “by means of” false or fraudulent pretenses, representations, or promises.
• At trial, the government proved that:
  • Robinson and Smith caused false invoices to be submitted to the Housing Authority;
  • the Housing Authority paid those invoices by check; and
  • contractors then cashed the checks and split proceeds in kickbacks.
• But the government did not prove that any false statement was made to a bank, or that any misrepresentation was the mechanism by which a bank parted with funds.
• Under Loughrin, this is insufficient: the “by means of” language in § 1344(2) requires that the misrepresentation be directed to, or naturally reach, a financial institution.
• The Court held that, much as in the “fake handbag” hypothetical in Loughrin, the fraud was on the Housing Authority/HUD, not on the bank. The bank’s role in honoring bona fide checks was “wholly fortuitous.”
• Accordingly, the bank fraud convictions were reversed under plain error review.

2. Wire Fraud Convictions Affirmed

• The government relied on an $80,000 HUD “drawdown” wire transfer in September 2017 to satisfy the interstate wire element of 18 U.S.C. § 1343 (Count 8).
• Evidence showed:
  • a fraudulent D Fresh Contractors invoice (August 31, 2017);
  • a HUD wire drawdown to the Housing Authority (September 22, 2017); and
  • a $12,300 check to D Fresh’s owner and corresponding withdrawal (November 2017).
• The jury was entitled to infer that at least part of the September 2017 drawdown funded payment of fraudulent invoices, thus furthering the scheme.
• The existence of other drawdowns between September and November did not render this inference too speculative, particularly in light of evidence about large payments to conspirator contractors during that period.
• The Court distinguished United States v. Durham, 766 F.3d 672 (7th Cir. 2014), explaining that here the government did offer purpose-related evidence for the wire; it was not a case of total documentary silence.

3. Sentencing: Position-of-Trust Enhancement Upheld

• The district court applied a two-level enhancement under U.S.S.G. § 3B1.3 on the ground that Smith abused a position of trust.
• As Asset Director, Smith:
  • oversaw building maintenance and renovation;
  • interacted with contractors and could submit invoices for payment; and
  • supervised property managers who could approve invoices.
• These duties entailed “professional or managerial discretion,” satisfying the guideline’s definition of a position of trust.
• Smith also used this role to facilitate the scheme—by instructing contractors on how to prepare false invoices and apparently fabricating some invoices himself.
• The Seventh Circuit held there was no clear error in applying § 3B1.3. Alternatively, any error would be harmless because the district court explicitly stated it would impose the same sentence in any event, as a variance under 18 U.S.C. § 3553(a).

4. Limited Restitution Remand

The Court identified a clerical error in Robinson’s written judgment: it omitted Smith from the joint-and-several restitution obligation for a $1,316,882.97 portion tied to contractor Archie Robinson. The panel remanded solely to clarify that this amount is jointly and severally owed by Robinson, Smith, and Archie Robinson.

Detailed Analysis

I. Factual and Procedural Background

HUD funds local housing authorities to provide affordable housing. The Housing Authority of South Bend acted as landlord for over 800 homes. It used in-house staff for minor maintenance and outside contractors for larger projects, often funded by HUD.

The process for contractor payment was conventional:

1. Contractor selected through a bidding process.
2. Contractor performs work and submits invoice.
3. Authority employees inspect work, approve invoice, and submit it internally.
4. Bookkeeper drafts check, Executive Director approves, check is mailed to contractor.

Around 2015, Robinson (Executive Director) and Smith (Asset Director) subverted this process:

• They arranged for contractors to submit invoices for work never performed.
• They helped those invoices gain internal approval.
• Contractors cashed the checks and shared cash with Robinson and Smith.

They were eventually exposed after casino staff noticed their gambling with large sums and alerted law enforcement. A long-running investigation culminated in federal indictments, trial convictions, and substantial sentences and restitution.

II. Reversal of the Bank Fraud Convictions under 18 U.S.C. § 1344(2)

A. Statutory Framework and the Role of Loughrin

18 U.S.C. § 1344 has two prongs. The government proceeded under § 1344(2), which criminalizes executing or attempting to execute:

“a scheme or artifice … 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.”

The Supreme Court’s decision in Loughrin v. United States, 573 U.S. 351 (2014), is central. There, the Court clarified what “by means of” requires under § 1344(2):

• The false statement must be “the mechanism naturally inducing a bank (or custodian of bank property) to part with money.”
• § 1344(2) is limited “to deceptions that have some real connection to a federally insured bank.”
• Where “no false statement will ever go to a financial institution, the fraud is not the means of obtaining bank property.”

Loughrin also famously used a hypothetical: a fraudster sells a fake Louis Vuitton handbag to a victim, misrepresenting its authenticity. The victim pays with a valid check. The Court explained that:

• The fraudster’s lie is to the victim, not the bank.
• The bank simply processes a valid check and is not deceived.
• The check does not assert anything about the authenticity of the handbag.
• Thus, there is no bank fraud, even though bank funds are ultimately used to pay the fraudster.

Two additional precedents frame the discussion:

• Williams v. United States, 458 U.S. 279 (1982) – The Court held “a check is not a factual assertion at all” and therefore is not itself a “statement” that can be deemed true or false for fraud purposes.
• Loughrin relied on Williams to reinforce that the mere use of a genuine check does not transform an upstream fraud into bank fraud.

B. Application to Robinson and Smith’s Scheme

The Seventh Circuit applied Loughrin and Williams straightforwardly.

The government’s evidence showed that Robinson and Smith:

• engineered false invoices to the Housing Authority for nonexistent work;
• caused the Housing Authority to issue checks to contractors in payment for those invoices; and
• received kickbacks after contractors cashed those checks.

But crucially:

• There was no evidence that any contractor lied to the bank when cashing the checks.
• There was no forged instrument; the checks were genuine, drawn on real Housing Authority accounts.
• The misrepresentations were confined to the Housing Authority (and, derivatively, HUD)—not to any financial institution.

Under Loughrin, this failed to satisfy § 1344(2):

• The scheme was “a scheme to defraud the Housing Authority and HUD,” not a bank.
• That the victim chose to pay by check did not make the scheme a bank fraud rather than a non-bank fraud.
• The bank’s involvement was “wholly fortuitous,” as in the counterfeit handbag hypothetical.

C. The Government’s Theories Rejected

The government advanced two main arguments to try to distinguish this case from Loughrin. Both failed.

1. The “Timing/Completion” Theory

The government suggested that, unlike the handbag fraudster—who has completed his con once he receives the victim’s check—Robinson and Smith did not complete their scheme until the contractors cashed the checks and paid kickbacks. This purportedly turned the cashing event into the operative part of the scheme.

The Court rejected this as immaterial. The “patience” or temporal structure of the scheme does not convert a non-bank-directed scheme into bank fraud. What matters is who is being lied to for purposes of inducing the release of funds—not how many steps the conspirators go through before sharing the proceeds.

2. The “Implied Representation by Check” Theory

The government also contended that the checks themselves “implicitly represented” that Robinson and Smith were authorized to complete the transactions to fund the kickback scheme, and that this implied representation was false.

This ran squarely into Williams and Loughrin:

• As Williams held, “a check is not a factual assertion at all.” It is an instruction to a bank to pay; it does not, by itself, assert facts about the underlying transaction.
• Consequently, the checks here did not “communicate an institutional blessing of the kickback scheme” to the bank.
• Just as the check paying the handbag swindler did not represent that the victim was knowingly buying a counterfeit, the Housing Authority’s checks did not represent to the bank that the underlying maintenance work was actually performed.

Absent a misrepresentation embodied in or accompanying the check, there was simply no false statement directed at the financial institution.

D. Precedents and Their Influence

The opinion heavily relies on and extends several precedents:

• Loughrin v. United States – The Seventh Circuit treats Loughrin as dispositive. The panel’s analysis underscores that after Loughrin, § 1344(2) cannot be used as an all-purpose enhancement whenever fraudsters receive payment by check. There must be a real misrepresentation to, or naturally reaching, a bank.
• Williams v. United States – Reaffirmed for the proposition that a check is not itself a factual statement capable of being true or false; thus, theories of “implied” misrepresentation by mere issuance of a check will often fail as bank fraud foundations.

Within the Seventh Circuit, this decision cements a clear boundary: a scheme that deceives a non-bank payor and results in routine check processing by a bank is not bank fraud unless there is some specific misrepresentation directed to the bank (such as forging a check, falsifying endorsements, submitting phony bank forms, or similar).

E. Plain Error Review and the Role of Meadows and Parker

Robinson and Smith did not challenge their bank fraud convictions in the district court:

• They did not move to dismiss the bank fraud counts;
• They did not move for acquittal under Rule 29 on those counts; and
• They did not object to jury instructions on bank fraud.

Under Seventh Circuit practice, sufficiency-of-the-evidence challenges raised for the first time on appeal are reviewed only for plain error. The Court applied the now-standard four-prong framework from United States v. Jones, 22 F.4th 667 (7th Cir. 2022), and United States v. Page, 123 F.4th 851 (7th Cir. 2024) (en banc), which itself rests on United States v. Olano, 507 U.S. 725 (1993):

1. Was there an error?
2. Was the error “plain” (clear or obvious)?
3. Did the error affect the defendant’s substantial rights (i.e., a reasonable probability of a different result absent the error)?
4. Does the error seriously affect the fairness, integrity, or public reputation of judicial proceedings?

Two features are particularly notable:

1. “Error” and the Changed Text of Rule 29

Earlier cases such as United States v. Meadows, 91 F.3d 851 (7th Cir. 1996), had characterized it as “error” for a district court to fail sua sponte to grant a judgment of acquittal where the evidence is insufficient. That was based on the then‑mandatory language of Rule 29(a), which stated the court “shall” enter judgment of acquittal if the evidence is insufficient.

In 2002, however, Rule 29(a) was amended to use permissive language: the court “may on its own consider” the sufficiency of the evidence. A trial court’s failure to act sua sponte is now arguably not “error” at all, since there is no affirmative duty to do so.

Judge Scudder notes this tension but sidesteps deciding it because the government’s appellate brief:

• affirmatively invoked Meadows and expressly treated the failure to grant an acquittal as error; and
• did not ask the court to revisit Meadows or to hold otherwise in light of amended Rule 29.

The majority therefore “treat[s] this as a concession” and proceeds on the assumption that the first plain-error prong (error) is met.

2. Prongs Three and Four: Substantial Rights and Fairness

On prong three, the panel notes that where the evidence is legally insufficient, the defendant “would have been acquitted absent the error,” satisfying the “substantial rights” requirement. See United States v. Boswell, 772 F.3d 469, 477 (7th Cir. 2014).

On prong four, the Court invokes United States v. Parker, 508 F.3d 434 (7th Cir. 2007), which overruled earlier cases like United States v. McCarter, 406 F.3d 460 (7th Cir. 2005), and United States v. Baldwin, 414 F.3d 791 (7th Cir. 2005). Those earlier decisions had suggested that an error yielding only a concurrent sentence is not a “miscarriage of justice.” Parker held instead that convictions themselves carry collateral consequences, and that wrongful convictions—irrespective of sentence length—can satisfy prong four.

Here, even though vacating the bank fraud counts does not reduce the term of imprisonment and affects only relatively small special assessments, the court declines to draw a line of triviality and adheres to Parker’s broader understanding of collateral consequences. The panel acknowledges Judge Easterbrook’s suggestion that Parker might someday warrant revisiting, but it leaves that debate for another case where the issue is properly briefed.

III. Affirmance of the Wire Fraud Convictions under 18 U.S.C. § 1343

A. Elements and Governing Precedents

Wire fraud under 18 U.S.C. § 1343 requires proof that the defendant:

1. participated in a scheme to defraud;
2. had intent to defraud; and
3. caused an interstate wire communication to be used in furtherance of the scheme.

The Seventh Circuit cites United States v. Gustafson, 130 F.4th 608, 614 (7th Cir. 2025), for this tri-part test.

Robinson and Smith challenged only the third element as to Count 8: whether the September 22, 2017 HUD drawdown wire “furthered” the fraud scheme.

B. The September 2017 Drawdown and the Inference of Furtherance

The government’s theory was:

• The Housing Authority submitted a drawdown request to HUD.
• HUD wired $80,000 to the Housing Authority’s bank account on September 22, 2017.
• The account into which this money went was the same account from which fraudulent contractor checks were drawn.
• A fraudulent invoice from D Fresh Contractors, for $12,300, was:
  • received August 31, 2017 (fraud indicated by tenant testimony);
  • followed by the September 22 HUD drawdown; and
  • then paid via a $12,300 check, cashed on November 14, 2017.

The defense argued that because there were multiple drawdowns between September 22 and November 14, the September 22 drawdown was only one of several equally likely funding sources, creating reasonable doubt as to any particular link.

The Court rejected this “equally plausible inferences” argument (which relied on United States v. Vizcarra‑Millan, 15 F.4th 473, 507 (7th Cir. 2021)) because the government introduced additional evidence tipping the balance:

• Between the September 2017 drawdown and the next drawdown, the Housing Authority issued over $150,000 in checks to conspirator contractors.
• Those contractors cashed more than $90,000 of those amounts immediately.

From this, “a rational jury could have inferred” that funds from the September drawdown were used to pay fraudulent invoices, including D Fresh’s. The inference that the wire furthered the scheme was more plausible than the alternative inference that it did not.

The panel relies on United States v. Grandinetti, 891 F.2d 1302, 1306 (7th Cir. 1989), for the general principle that a jury may infer the existence of an element from circumstantial evidence “if reason and experience support the inference.”

C. Documentary Gaps and Durham

The defense also invoked United States v. Durham, 766 F.3d 672 (7th Cir. 2014), where the court faulted the government for not introducing any evidence showing the purpose of particular wire transfers, even though documentation of their purpose apparently existed. The defense analogized that here, a witness testified that HUD placed the Housing Authority on “zero tolerance,” requiring documentation of the scope of work for each drawdown—a form of purpose description that the government did not introduce.

The Seventh Circuit distinguished Durham on two grounds:

• First, there was conflicting testimony on whether the Housing Authority was on “zero tolerance” for the relevant period; a fact-finder was not compelled to believe that such documentation existed.
• Second, unlike in Durham, the government did introduce evidence (timing, amounts, contractor payment patterns) from which the purpose and role of the September 2017 drawdown in the scheme could reasonably be inferred.

In short, Durham warns against convicting in a documentary vacuum where purpose could be proven but is not; it does not require the government to produce every conceivable document in its possession whenever there is some evidence of a wire’s purpose.

IV. Sentencing: Abuse of a Position of Trust under U.S.S.G. § 3B1.3

A. Position of Trust: Legal Standard

U.S.S.G. § 3B1.3 provides a two-level increase if:

1. “the defendant abused a position of public or private trust”; and
2. such abuse “significantly facilitated the commission or concealment of the offense.”

A “position of trust” is defined by the guidelines commentary (and in Seventh Circuit case law) as one characterized by:

“professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).”

The Seventh Circuit has repeatedly emphasized that:

• Positions in which the defendant can authorize, process, or influence payments or contracts typically qualify.
• The person need not have sole or final authority; what matters is the entrusted discretion and the opportunity to exploit it.

Key cases relied upon:

• United States v. Bradshaw, 670 F.3d 768 (7th Cir. 2012) – Articulates the two-part test (occupation of a position of trust plus abuse that facilitates or conceals the offense).
• United States v. Tiojanco, 286 F.3d 1019 (7th Cir. 2002) – Re-states the guideline’s commentary regarding “professional or managerial discretion.”
• United States v. Emerson, 128 F.3d 557 (7th Cir. 1997) – Holds a contracting officer had a position of trust because he could inspect work sites and certify completion, even without final payment authority.
• United States v. Deal, 147 F.3d 562 (7th Cir. 1998) – Confirms that a comptroller who could approve invoices for payment held a position of trust despite needing a superior’s final approval.

B. Application to Smith’s Role as Asset Director

The Court concluded that:

• Smith exercised substantial discretion in his role at the Housing Authority;
• He oversaw maintenance and renovations, a core operational function involving selection and oversight of contractors;
• He supervised property managers who themselves approved invoices, and he sometimes directly submitted invoices for payment.

These responsibilities go beyond routine clerical tasks and place him squarely within the “professional or managerial discretion” rubric. The panel analogizes him to the contracting officer in Emerson and the comptroller in Deal.

As for abuse, there was compelling trial evidence:

• Smith instructed contractors on how to prepare fraudulent invoices.
• He likely created false invoices himself.
• He used his supervisory role and credibility within the organization to facilitate the processing of sham payments.

Under clear error review, the question is not whether another view of the evidence is possible but whether the district court’s finding is a “permissible view of the evidence.” The panel emphatically found it was.

C. Harmless Error via Alternative Variant Sentence

Even if there had been error, the panel held it harmless, relying on the doctrine articulated in United States v. Caraway, 74 F.4th 466 (7th Cir. 2023):

• If the district court “unambiguously states” that it would impose the same sentence regardless of a potential guidelines error, an appellate court can deem the error harmless.
• Here, the sentencing judge expressly said that, even without the § 3B1.3 enhancement, he would vary to the same sentence under 18 U.S.C. § 3553(a).

This approach “inoculates” the sentence against reversal on that particular guidelines point, provided the alternative sentence is substantively reasonable.

V. The Concurrence: Future of Rule 29 and Plain Error in Sufficiency Challenges

Judge Easterbrook’s concurrence, while agreeing that Loughrin requires reversal of the bank fraud convictions, raises important structural questions about appellate review and the plain error doctrine. Although not binding, his analysis signals issues likely to recur.

A. Parallels with Civil Rule 50 and Unitherm

Federal Rule of Criminal Procedure 29 is the criminal analogue of Federal Rule of Civil Procedure 50 (judgment as a matter of law in civil cases). In Unitherm Food Systems, Inc. v. Swift‑Eckrich, Inc., 546 U.S. 394 (2006), the Supreme Court held that failure to make a proper Rule 50 motion in civil cases bars appellate review of the sufficiency of the evidence.

Judge Easterbrook asks: shouldn’t the same principle apply in criminal cases—i.e., no Rule 29 motion, no sufficiency review on appeal?

He notes:

• The institutional interests are similar: district judges are closest to the record and should have the first opportunity to consider insufficiency arguments.
• Absent such motions, appeals come without the benefit of the trial judge’s analysis; the government, had it known of the defect earlier, might have cured it with additional evidence.

Many circuits—including the Seventh—have historically allowed plain-error review of sufficiency even without a Rule 29 motion. Some have applied more restrictive standards (e.g., the Fifth Circuit’s “record is devoid of evidence” test in United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc)). The Fourth Circuit in United States v. Chong Lam, 677 F.3d 190 (4th Cir. 2012), has required a Rule 29 motion, absent a manifest miscarriage of justice.

Judge Easterbrook suggests that, after Unitherm, circuits like the Seventh have not fully grappled with whether their permissive approach to Rule 29 remains consistent with Supreme Court precedent.

B. What Counts as “Error” Under Rule 52(b) After the 2002 Amendment?

Judge Easterbrook emphasizes that under Olano and Page, the first question is whether the district court committed an “error.” He doubts that a court commits any “error” by simply allowing a jury verdict to stand in the absence of a defense Rule 29 motion—especially given that:

• Rule 29 is now permissive (“may”) rather than mandatory (“shall”); and
• the court never had its attention directed to the specific legal insufficiency now claimed.

In his view, Meadows’s assumption that a judge errs by not granting sua sponte acquittals is incompatible with the amended Rule 29 and may no longer be good law.

He also criticizes the government’s brief for conflating “error” with “plain error” and effectively ignoring the third and fourth prongs of the Olano/Page framework, as well as the burden-shifting rules recognized in Greer v. United States, 593 U.S. 503 (2021).

C. Substantial Rights and Collateral Consequences for Minor Monetary Penalties

Judge Easterbrook would also find the third and fourth prongs unmet in this case:

• The only direct effect of vacating the bank fraud counts is to eliminate $600 in special assessments ($100 per bank fraud count). The prison terms are fully concurrent, and no guidelines enhancements depend on the bank fraud convictions.
• He doubts that a $600 change can “affect substantial rights,” especially where the defendants’ non-bank-fraud felonies already entail all the major collateral consequences (loss of civil rights, reputational harm, etc.).
• He argues that vacating convictions on arguments never made in the district court may itself undermine the perceived fairness and integrity of judicial proceedings, rather than preserve them.

Nonetheless, invoking the “party presentation” principle (see United States v. Sineneng‑Smith, 590 U.S. 371 (2020); Clark v. Sweeney, No. 25‑52 (U.S. Nov. 24, 2025)), he accepts the government’s concession that plain error review applies and joins the majority opinion.

The concurrence thus flags several unresolved issues:

• Whether Rule 29 should be treated like Civil Rule 50 for preservation purposes;
• Whether the failure to grant a sua sponte acquittal can be “error” after the 2002 amendment;
• How “substantial rights” and “miscarriage of justice” should be evaluated when the only stakes are small monetary assessments and duplicative convictions.

VI. Clarification of Joint and Several Restitution

The panel also addressed a narrow but practically important point:

• The district court clearly intended to hold Robinson, Smith, and contractor Archie Robinson jointly and severally liable for $1,316,882.97 in restitution tied to Archie’s conduct.
• Robinson’s written judgment, however, stated that she and Archie were jointly and severally liable for that amount but omitted Smith.
• Both sides agreed this omission was inadvertent.

Recognizing it as a clerical error, the court remanded for the limited purpose of correcting the judgment to include Smith in the joint-and-several obligation. This underscores appellate courts’ willingness to correct record-keeping mistakes to reflect the sentencing court’s actual intent.

VII. Complex Concepts Simplified

This section restates the opinion’s key legal concepts in non-technical terms.

1. Bank Fraud vs. Wire Fraud

• Bank Fraud (§ 1344(2)): Focuses on lying to a bank (or using a lie that is meant to reach a bank) to get the bank’s money. The misrepresentation has to be what makes the bank release the money.
• Wire Fraud (§ 1343): Focuses on using electronic communications—phone, internet, wire transfers—in a scheme to cheat someone out of money or property. The lie can be to anyone, not necessarily a bank; what matters is that an interstate wire is used to help carry out the scheme.

2. “By Means Of” a Misrepresentation

For bank fraud under § 1344(2), the statute requires that the bank’s money be obtained “by means of” a false statement. This means:

• The lie must be the tool or mechanism that causes the bank to hand over its money.
• If you lie only to a non-bank victim, and the victim decides to pay you by check, the bank is just processing a valid instruction. The bank wasn’t fooled; it’s not bank fraud.

3. Checks as Non-Statements

A check tells a bank “pay this person this amount of money from my account.” It does not, by itself, assert:

• that the underlying deal was fair;
• that services were actually rendered; or
• that goods were genuine.

So simply using a check does not automatically turn a fraud on a third party into bank fraud.

4. Plain Error Review

When a defendant does not object at trial, an appellate court uses “plain error” review. To win under plain error, a defendant must show:

1. There was a legal mistake in the trial court.
2. The mistake is “plain”—clear under current law.
3. The mistake likely affected the outcome (for example, the jury would probably have acquitted on that count).
4. Leaving the mistake uncorrected would seriously damage the fairness or reputation of the justice system.

This is a much higher bar than ordinary review. In this case, the bank fraud convictions failed on the merits so dramatically that the court considered all four requirements met (given the government’s concessions), even though the sentences themselves barely changed.

5. Position of Trust (U.S.S.G. § 3B1.3)

A “position of trust” is a job where:

• the employer or the public relies heavily on your honesty;
• you have significant freedom to make decisions or handle money without close supervision; and
• you can more easily commit or hide wrongdoing because of that discretion.

If you exploit such a role to commit a crime, you usually face a guideline increase. Here, Smith’s role at the Housing Authority—managing maintenance, supervising managers, interacting with contractors, and influencing invoice processing—gave him exactly that kind of trusted discretion.

6. HUD “Drawdown” Wires and the Wire Fraud Element

HUD did not send a single, lump-sum grant in advance. Instead, the Housing Authority periodically requested “drawdowns” of funds for ongoing projects. HUD then wired money into the Housing Authority’s bank account.

For wire fraud, the law asks:

• Was an interstate wire used?
• Did that wire help carry out the scheme?

The government does not have to show a particular dollar from a wire paid a particular fraudulent invoice. It is enough to show that the wire replenished the same account later used to pay fraudulent checks, and the timing and amounts support a reasonable inference that the wire helped fund the fraud.

7. Collateral Consequences and Concurrent Sentences

Even when multiple convictions lead to sentences served at the same time (concurrent), additional convictions can still matter because:

• Each felony conviction is a separate stain on a person’s record.
• Some civil disabilities (e.g., professional licensing consequences) may depend on the number or nature of felonies.
• Each count carries a mandatory “special assessment” monetary penalty.

The Seventh Circuit’s Parker decision (which this opinion applies) recognizes that wrongful extra convictions themselves—not just extra prison time—can be serious enough to justify appellate correction under plain error review.

Conclusion: Significance and Future Impact

United States v. Robinson & Smith stands at the intersection of federal fraud doctrine, procedural rigor, and public corruption enforcement. Its most consequential holding is the reinforcement of Loughrin’s limitation on the scope of bank fraud under § 1344(2). Prosecutors cannot simply “federalize” all check-based frauds by invoking bank fraud when:

• the lies are told to a non-bank victim (here, a housing authority funded by HUD); and
• the bank’s role is limited to honoring valid checks on a genuine account.

On the charging side, this decision pressures the government to:

• use bank fraud counts only when there is a clear misrepresentation directed to or foreseeably reaching a bank; and
• rely more heavily on wire fraud and federal program theft where the fraud targets federally funded entities but does not deceive banks directly.

On the procedural front, the case:

• continues the Seventh Circuit’s application of plain error review to unpreserved sufficiency challenges,
• reaffirms that wrongful convictions matter even where sentences are concurrent (Parker), and
• highlights, through Judge Easterbrook’s concurrence, significant unresolved questions regarding the interplay of Rule 29, Unitherm, and the first two prongs of the plain error test.

Substantively, the affirmance of the wire fraud convictions demonstrates that HUD grant “drawdowns” will often satisfy the interstate wire element in frauds involving public housing authorities. And the sentencing analysis under § 3B1.3 sends a clear message: public officials with managerial discretion over contracting and payments—especially in federally funded programs—should expect an abuse-of-trust enhancement when they exploit those roles for personal gain.

Taken together, the decision refines the boundaries of federal fraud liability while underscoring both the seriousness of corruption in public housing programs and the importance of accurate charging and sentencing under federal law.