United States v. Robinson & Smith: No Bank Fraud Under § 1344(2) Without a False Statement Reaching the Bank

Introduction

This Seventh Circuit decision, United States v. Tonya Robinson & Albert Smith (Nos. 24‑1910 & 24‑2310, decided Dec. 15, 2025), arises from a kickback scheme inside the Housing Authority of South Bend (“Housing Authority”). Tonya Robinson (Executive Director) and Albert Smith (Asset Director) used their management roles to approve invoices for work that was never performed, allowing favored contractors to receive Housing Authority funds and then share the proceeds with them.

The federal government charged them with a combination of conspiracy, bank fraud, wire fraud, and federal program theft. A jury convicted both defendants on nearly all counts. On appeal, the Seventh Circuit:

Reversed all bank fraud convictions under 18 U.S.C. § 1344(2) for insufficiency of the evidence, holding that the government failed to prove any false statement that was communicated to a bank.
Affirmed the wire fraud conviction tied to a specific HUD “drawdown” of federal funds, finding sufficient circumstantial evidence that the interstate wire furthered the fraudulent scheme.
Upheld the application of the Guidelines “abuse of trust” enhancement to Smith’s sentence—and found any error harmless in light of the district judge’s alternative sentencing rationale.
Remanded for the limited purpose of correcting a clerical error in the restitution judgment regarding joint and several liability.

The core doctrinal significance of the opinion is twofold:

It reaffirms and sharpens the Supreme Court’s decision in Loughrin v. United States, 573 U.S. 351 (2014), by holding that § 1344(2) bank fraud requires a misrepresentation that actually reaches a financial institution; using genuine checks to draw on funds earlier obtained by fraud from a non‑bank victim does not itself constitute bank fraud.
It applies the plain error standard to a sufficiency-of-the-evidence challenge raised for the first time on appeal and, relying on prior circuit precedent, treats the continued existence of wrongful convictions—even with only concurrent sentences and modest special assessments—as sufficient to satisfy the “fairness, integrity, or public reputation” prong of Rule 52(b).

Judge Scudder authored the majority opinion, joined by Judges Rovner and Easterbrook. Judge Easterbrook also wrote a substantial concurrence, raising serious questions about how plain-error review should operate when defendants have not moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, and whether modest monetary consequences alone should justify reversing convictions under the plain-error doctrine.

Summary of the Opinion

Holdings

Bank Fraud (18 U.S.C. § 1344(2)):
- The government failed to prove that any false or fraudulent statement was made to a financial institution.
- Approving fake invoices and issuing genuine Housing Authority checks to contractors does not, without more, amount to bank fraud under § 1344(2), even though the checks are later cashed at banks.
- Relying heavily on Loughrin, the court held that the “by means of” language in § 1344(2) requires that the misrepresentation be the mechanism that naturally induces the bank to part with funds.
- On plain-error review (because defendants failed to challenge their bank fraud convictions below), the court found all four prongs satisfied and reversed the convictions.
Wire Fraud (18 U.S.C. § 1343):
- The court affirmed wire fraud convictions related to an $80,000 HUD drawdown transmitted on September 22, 2017.
- The government was not required to trace specific “HUD dollars” to a particular kickback check; circumstantial evidence about timing and account activity was sufficient to allow a rational jury to find that the drawdown furthered the fraudulent scheme.
- The court distinguished an earlier case, United States v. Durham, 766 F.3d 672 (7th Cir. 2014), concluding that the government produced enough evidence of the drawdown’s purpose here.
Sentencing – Abuse-of-Trust Enhancement (U.S.S.G. § 3B1.3):
- The district court did not clearly err in finding that Smith occupied and abused a “position of public or private trust” within the meaning of § 3B1.3.
- Smith’s managerial discretion over maintenance, renovations, contractors, and invoice approvals, combined with his role in orchestrating false invoices, comfortably fit the Guidelines definition.
- Any conceivable error in applying the enhancement was harmless because the district judge explicitly stated he would impose the same sentence as a variance based on 18 U.S.C. § 3553(a).
Restitution:
- The court identified a clerical error in Robinson’s written judgment: it omitted Smith from the list of persons jointly and severally liable for a $1,316,882.97 restitution component involving contractor Archie Robinson.
- The case was remanded solely to correct this clerical mistake.

Detailed Analysis

I. Factual and Procedural Background

A. The Housing Authority and HUD Funding Mechanism

The Housing Authority of South Bend operated more than 800 rental housing units, funded in large part by the U.S. Department of Housing and Urban Development (“HUD”). HUD did not simply hand over a lump sum each year. Instead:

The Housing Authority incurred costs—often by hiring outside contractors for larger renovation projects.
It then submitted “drawdown” requests to HUD as funds were needed.
If HUD approved a drawdown, it transmitted money electronically (an interstate wire) into the Housing Authority’s bank account.

Internally, the Housing Authority used formal procedures to contract for work:

Selection of a contractor through a bidding process;
Work performed and an invoice submitted;
Housing Authority staff inspected the work and approved the invoice;
The bookkeeper prepared a check and sent it to the Executive Director for approval;
Once approved, the check was mailed to the contractor.

B. The Kickback Scheme

By around 2015, Executive Director Tonya Robinson and Asset Director Albert Smith began corrupting this process. In broad strokes:

They arranged with certain contractors to submit invoices for work that was never performed.
Robinson and Smith used their authority and influence to ensure those invoices were approved internally.
The Housing Authority’s bookkeeper issued genuine checks drawn on the Housing Authority’s account—funded largely with HUD money—to pay these fraudulent invoices.
The participating contractors then kicked back a portion of the proceeds to Robinson and Smith, often in cash.

The scheme remained undetected until 2016, when a casino employee who observed Robinson and Smith gambling with large sums alerted law enforcement. Federal investigators quietly examined the Housing Authority’s operations, executed search warrants in July 2019, and interviewed participants, including contractors who admitted delivering kickback payments to Smith.

C. Charges, Trial, and Sentences

A federal grand jury returned a multi-count indictment charging Robinson and Smith with:

Count 1: Conspiracy to commit bank and wire fraud (18 U.S.C. § 1349);
Counts 2–7: Bank fraud (18 U.S.C. § 1344(2));
Counts 8–9: Wire fraud (18 U.S.C. § 1343);
Count 10: Federal program theft (18 U.S.C. § 666(a)(1)(A)).

At trial, the government introduced:

Invoices approved by the Housing Authority; tenants testified that the invoiced work was never done.
Checks issued by the Housing Authority to the contractors for these invoices.
Testimony from contractors about kickback payments to Smith (and by implication to Robinson).
Evidence of HUD drawdowns—electronic fund transfers from HUD to the Housing Authority’s bank account—used to fund these operations.

The jury returned a mixed verdict as to Robinson (acquitting on one wire fraud count but convicting on the rest) and convicted Smith on all counts. The district court imposed:

Robinson: 108 months’ imprisonment on Counts 1–8 and 10 (concurrent) and restitution of $3,236,949.97.
Smith: 135 months on Counts 1–9 and 120 months on Count 10 (all concurrent) and $3,030,940 in restitution. The court also applied a two-level “abuse of trust” enhancement under U.S.S.G. § 3B1.3 to Smith.

Notably, neither defendant moved at trial to dismiss the bank fraud counts or for a judgment of acquittal on those counts under Rule 29. They did, however, challenge the wire fraud count linked to a particular HUD drawdown (Count 8). On appeal, both defendants attacked the bank fraud convictions (for the first time) and the sufficiency of the evidence on the wire fraud count, and Smith challenged the sentencing enhancement.

II. Bank Fraud Under § 1344(2): Misrepresentation Must Reach the Bank

A. Statutory Text and the Loughrin Framework

18 U.S.C. § 1344(2) criminalizes:

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 in Loughrin v. United States, 573 U.S. 351 (2014), interpreted the “by means of” language to require a tight causal link between the false statement and the bank’s decision to part with its property:

The misrepresentation must be the mechanism that naturally induces the bank to release funds. (Loughrin, 573 U.S. at 365.)
Section 1344(2) is therefore limited to “deceptions that have some real connection to a federally insured bank.” (Id. at 366.)
If “no false statement will ever go to a financial institution, the fraud is not the means of obtaining bank property.” (Id. at 365.)

The Court illustrated this with a now-famous hypothetical: a swindler sells a counterfeit Louis Vuitton handbag to an unsuspecting buyer, who pays with an ordinary, valid check. There is fraud (on the buyer), but no bank fraud, because no one “would dream of passing on to the bank” the misrepresentation about the bag’s authenticity. (Id. at 364.) The bank’s involvement is “wholly fortuitous.”

B. Application to the Housing Authority Scheme

The Seventh Circuit concluded that Robinson and Smith’s case fit squarely within Loughrin’s handbag hypothetical.

The government offered ample evidence of fraud generally:

False invoices for non-existent maintenance or renovation work.
Approval processes corrupted by Robinson and Smith’s influence.
Genuine Housing Authority checks issued to participating contractors.
Contractors cashing the checks at banks and funneling kickback cash back to the defendants.

But crucially, the record did not show that:

Any false statement on the invoices was communicated to a financial institution; or
Any contractor presented a false, forged, or altered instrument to the bank; or
The bank relied on any misrepresentation in deciding to honor the checks.

Instead, as in Loughrin, the misrepresentations were made to the non-bank victim—here, the Housing Authority (and indirectly HUD)—to induce it to issue genuine checks. Once those checks existed, the banks treated them as ordinary instruments drawn on a legitimate account.

The Seventh Circuit emphasized that “patience does not convert a kickback scheme into bank fraud.” The fact that Robinson and Smith had to wait for contractors to cash checks and deliver kickbacks, rather than receiving checks directly, did nothing to connect their lies to the banks themselves.

C. Rejection of the “Implied Misrepresentation in the Check” Theory

The government advanced an alternative theory: each genuine check supposedly carried an implicit representation that the Housing Authority had properly authorized payment for legitimate work. Because the underlying work was fictitious, this “implied representation” was false, and—when the contractor deposited the check—it reached the bank.

The panel rejected this theory on the strength of Williams v. United States, 458 U.S. 279 (1982), where the Supreme Court held that “a check is not a factual assertion at all.” There, the Court refused to treat the mere presentation of a bad check as a “false statement” under 18 U.S.C. § 1014. Here, the Seventh Circuit extended that logic:

A check does not, by itself, assert that the underlying transaction is legitimate, nor that the payee has truly earned the money.
Just as the victim’s check in Loughrin did not communicate “I knowingly bought a counterfeit bag,” the Housing Authority’s checks did not communicate, “we affirm the legitimacy of these invoices.”

Without a false representation contained in or appended to the check that actually reached the bank, the core element of § 1344(2) was missing.

D. Plain-Error Review of Sufficiency: Meadows, Page, and Parker

Because Robinson and Smith “never challenged their bank fraud convictions below,” the court applied plain error review under Federal Rule of Criminal Procedure 52(b), citing United States v. Meadows, 91 F.3d 851 (7th Cir. 1996).

The modern four-prong plain-error standard, reiterated in United States v. Jones, 22 F.4th 667, 675 (7th Cir. 2022), and United States v. Page, 123 F.4th 851, 864 (7th Cir. 2024) (en banc), requires the defendant to show:

There was an error;
The error was plain (clear or obvious);
The error affected the defendant’s substantial rights (a reasonable probability of a different outcome); and
The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Applying this framework, the panel reasoned:

Error (Prong 1): Under Meadows, it is an “error” for a district court not to enter a judgment of acquittal on its own motion under Rule 29(a) where the evidence is insufficient. Although the 2002 amendments changed Rule 29(a) from mandatory (“shall”) to permissive (“may”), the government’s brief treated Meadows as still controlling. The panel accepted that concession and proceeded as if the district court erred.
Plainness (Prong 2): In light of Loughrin, it was plain that the government had not shown any misrepresentation to a bank, making the bank fraud convictions legally untenable.
Substantial Rights (Prong 3): An error affects substantial rights if there is a reasonable probability of a different outcome, including where “the defendant would have been acquitted absent the error.” (United States v. Boswell, 772 F.3d 469, 477 (7th Cir. 2014).) Here, the defendants would have been acquitted on the bank fraud counts.
Fairness / Integrity (Prong 4): The court invoked United States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005), and United States v. Maez, 960 F.3d 949, 962 (7th Cir. 2020), equating this prong with avoiding a “miscarriage of justice” or a substantial risk of convicting an innocent person. Although earlier cases (e.g., United States v. McCarter, 406 F.3d 460 (7th Cir. 2005); United States v. Baldwin, 414 F.3d 791 (7th Cir. 2005)) suggested that errors resulting only in “concurrent sentences” did not warrant relief, those decisions were overruled by United States v. Parker, 508 F.3d 434 (7th Cir. 2007). Parker held that wrongful convictions themselves carry collateral consequences, so relief may be warranted even if the prison term is unaffected.

Judge Scudder acknowledged Judge Easterbrook’s suggestion that Parker might merit reexamination—especially given that here, reversing the bank fraud counts affects only $600 in special assessments and not the custodial term. But because neither party asked the court to revisit Parker, the panel treated it as controlling and concluded that letting legally unsupported convictions stand would undermine the fairness and integrity of judicial proceedings.

E. Precedential Significance on § 1344(2)

Doctrinally, the decision:

Reinforces Loughrin’s bank fraud framework in the Seventh Circuit: prosecutors must tie a misrepresentation to something that is actually presented to the bank and influences the bank’s decision to release funds.
Closes the door on the theory that genuine checks, issued by a defrauded party, inherently contain implied factual assertions about the legitimacy of the underlying transaction sufficient to constitute bank fraud—consistent with Williams.
Clarifies charging boundaries for fraud involving federally funded entities: if banks are only pass-through payment mechanisms and receive no false statements, the correct charges will be wire fraud, mail fraud, federal program theft, or honest services offenses—but not § 1344(2) bank fraud.

III. Wire Fraud Under § 1343: Circumstantial Proof that a HUD Drawdown Furthered the Scheme

A. Elements and Government’s Theory

Wire fraud under 18 U.S.C. § 1343 requires the government to prove that the defendant:

Participated in a scheme to defraud;
Acted with intent to defraud; and
Caused an interstate wire to be used in furtherance of the scheme.

(United States v. Gustafson, 130 F.4th 608, 614 (7th Cir. 2025).)

For Count 8, the government alleged that a September 22, 2017, $80,000 drawdown from HUD to the Housing Authority’s bank account was an interstate wire used to further the scheme. The prosecution argued that:

The drawdown replenished the very account from which fraudulent contractor checks were later issued.
After the drawdown, the Housing Authority paid a $12,300 fraudulent invoice from “D Fresh Contractors,” and the contractor then withdrew that amount in cash.

The government did not trace specific HUD dollars to that particular check, but contended that the timing and volume of account activity supported a reasonable inference of a causal connection.

B. Standard of Review for Preserved Sufficiency Challenges

Because Robinson and Smith had moved for acquittal on this wire fraud count in the district court, the Seventh Circuit reviewed the sufficiency of the evidence de novo, but under a highly deferential substantive standard:

The evidence is viewed in the light most favorable to the government.
The question is solely whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (United States v. Jackson, 5 F.4th 676, 682 (7th Cir. 2021).)
This burden on defendants is “nearly insurmountable.” (Id.)

C. Circumstantial Evidence Supporting the Drawdown’s Role

The panel held that a reasonable jury could infer that the September 2017 HUD wire furthered the kickback scheme.

Key facts:

D Fresh Contractors submitted a $12,300 invoice on August 31, 2017, for work that tenant testimony strongly suggested was never done.
The Housing Authority obtained an $80,000 drawdown from HUD on or about September 22, 2017.
On November 9, 2017, the Housing Authority wrote a $12,300 check to the D Fresh owner, who deposited the check and withdrew the full amount in cash on November 14, 2017.
Between the September drawdown and the next drawdown, the Housing Authority issued over $150,000 in checks to co-conspirator contractors, who quickly cashed more than $90,000 of those checks.

From these circumstances, a rational jury could reasonably infer:

The September 22 drawdown was obtained to provide funds that would, in part, cover outstanding fraudulent invoices, including D Fresh’s.
The subsequent issuance and cashing of the D Fresh check were financially linked to the HUD transfer.

The court relied on United States v. Grandinetti, 891 F.2d 1302, 1306 (7th Cir. 1989), which allows juries to use common sense to draw inferences from one fact to another essential for guilt, as long as “reason and experience support the inference.”

D. Response to “Equally Plausible Inference” and Durham Arguments

Defendants argued that five additional drawdowns occurred between September 22 and November 14, 2017, each potentially funding the D Fresh check. Citing United States v. Vizcarra-Millan, 15 F.4th 473, 507 (7th Cir. 2021), they contended that, where two inferences (guilty vs. not guilty) are equally plausible, the jury must entertain reasonable doubt.

The panel disagreed, pointing out that:

The government offered more than a bare timeline; it produced evidence about the volume and immediacy of payments to co-conspirator contractors right after the September drawdown.
Those details made the “guilty” inference—that the September wire was used in furtherance of the fraudulent invoices—more plausible than alternative explanations.

Defendants also invoked United States v. Durham, 766 F.3d 672 (7th Cir. 2014), which criticized the government for failing to provide any evidence of the purpose behind particular wires allegedly used to execute a fraud scheme. In Durham, key documents explaining wire purpose were never introduced, and the record left the jury to speculate.

Here, Robinson and Smith argued that HUD’s “zero tolerance” policy required the Housing Authority to document the scope of work tied to each drawdown. A witness suggested such documentation existed for the September wire, but the government did not produce it. Defendants argued that, under Durham, the jury could not assume the wire furthered the fraud without this documentary proof.

The Seventh Circuit responded:

The jury was not required to accept that such records existed; another witness could not recall whether the Housing Authority was in fact under zero tolerance during the relevant period.
The defense itself challenged the credibility of the witness who claimed zero tolerance applied, noting issues with record-keeping for HUD audits.
Durham does not demand that the government introduce every piece of documentary evidence bearing on a wire’s purpose; it only condemned a complete failure to offer any evidence of purpose. In Robinson and Smith’s case, the totality of the evidence—invoice timing, drawdown timing, check timing, and account activity—adequately supported the jury’s inference.

Therefore, the court affirmed the wire fraud convictions on Count 8.

IV. Sentencing: Abuse of Position of Trust (U.S.S.G. § 3B1.3)

A. Legal Standard

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

The defendant occupied a “position of public or private trust”; and
The defendant abused that position “to significantly facilitate or conceal the commission” of the offense.

(United States v. Bradshaw, 670 F.3d 768, 770 (7th Cir. 2012).) The determination is factual and reviewed for clear error. (United States v. Peterson-Knox, 471 F.3d 816, 825 (7th Cir. 2006).)

Application Note 1 to § 3B1.3 explains that a position of trust is one characterized by “professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).” The Seventh Circuit has elaborated:

Such positions often involve less supervision and greater freedom to make decisions for the organization. (United States v. Tiojanco, 286 F.3d 1019, 1021 (7th Cir. 2002).)
Persons entrusted with contract oversight, invoice approval, or large sums of money can qualify, even if they are still subject to some higher-level approvals. (United States v. Emerson, 128 F.3d 557, 559–60 (7th Cir. 1997); United States v. Deal, 147 F.3d 562, 563–64 (7th Cir. 1998).)

B. Smith’s Role in the Housing Authority

The record showed that Smith, as Asset Director:

Oversaw building maintenance and renovations.
Worked directly with contractors.
Sometimes submitted contractor invoices for payment.
Supervised property managers who themselves approved invoices.

These functions gave Smith:

Discretion to determine which contractors performed work and which invoices advanced through the approval process.
Influence over subordinates who played roles in approving payments.

The court analogized Smith’s authority to that of:

The contracting officer in Emerson, who could inspect sites and certify completion of work even though he could not unilaterally approve payment.
The comptroller in Deal, who approved invoices for payment but still needed a general manager’s final approval.

In each case, the individual was in a position of trust because he exercised professional judgment and was entrusted with financial oversight responsibilities. Smith’s role was no different.

The record also supported the finding that he abused this trust:

He instructed contractors on how to prepare fraudulent invoices.
At least one contractor suggested Smith directly generated false invoices.
He used his authority and knowledge of internal procedures to facilitate and conceal the kickback scheme.

C. Harmless Error via Alternative Sentence

Even assuming arguendo that applying the § 3B1.3 enhancement was error, the Seventh Circuit held the error would be harmless based on United States v. Caraway, 74 F.4th 466 (7th Cir. 2023).

Under Caraway:

If a district court “unambiguously states that it would have imposed the same sentence regardless of any potential error,” the error in calculating the Guidelines range is harmless.
District courts can “inoculate” their sentences against reversal by explaining how they would reach the same sentence under 18 U.S.C. § 3553(a) even if their Guidelines determinations are wrong.

Here, the sentencing judge expressly stated that he would vary to the same sentence based on § 3553(a) factors even without the abuse-of-trust enhancement. On that basis, the panel deemed any conceivable misapplication of § 3B1.3 harmless and affirmed Smith’s sentence.

V. Restitution and Clerical Error

Both parties agreed that the district court intended to make Robinson, Smith, and contractor Archie Robinson jointly and severally liable for $1,316,882.97 in restitution tied to Archie’s conduct. However, Robinson’s written judgment listed joint and several liability only between her and Archie, omitting Smith.

Because this discrepancy was a straightforward clerical oversight, the court remanded solely to allow the district judge to correct the written judgment to reflect the intended joint and several obligation.

VI. Judge Easterbrook’s Concurrence: Rule 29, Plain Error, and Collateral Consequences

Judge Easterbrook concurred in the judgment and the panel opinion but penned a detailed concurrence raising broader procedural questions that the majority explicitly left for “another day.”

A. Must a Defendant File a Rule 29 Motion to Preserve Sufficiency Arguments?

Easterbrook began by noting that:

Defense counsel never moved to dismiss the bank fraud counts, nor for a judgment of acquittal under Rule 29, nor even cited Loughrin to the district court.
Under Federal Rule of Civil Procedure 50 and Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), failure to file a Rule 50(b) motion in a civil jury trial generally precludes appellate review of sufficiency-of-the-evidence claims.

He questioned why the criminal analogue—Federal Rule of Criminal Procedure 29—should be treated differently:

Requiring a Rule 29 motion serves the same purposes identified in Unitherm: giving the trial judge a chance to consider sufficiency arguments with full knowledge of the record and potentially allowing the government to correct evidentiary gaps at trial.
Many circuits, including the Seventh, have historically permitted plain-error review of sufficiency claims without a Rule 29 motion (e.g., Meadows). Others have adopted stricter approaches, such as the Fifth Circuit’s “record devoid of evidence” standard (United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc)) or the Fourth Circuit’s requirement of a Rule 29 motion absent a “manifest miscarriage of justice” (United States v. Chong Lam, 677 F.3d 190 (4th Cir. 2012)).
No circuit appears to have squarely reconciled these practices with Unitherm.

Easterbrook flagged this as an area where the Seventh Circuit might eventually reconsider its precedent but agreed to proceed under current law because the government itself conceded plain error review.

B. Is Failure to Grant a Sua Sponte Acquittal Really an “Error” After the 2002 Rule 29 Amendment?

Meadows and similar cases treat a district court’s failure to order a judgment of acquittal on its own motion as an “error” reviewable for plain error. That reading made sense under the pre‑2002 version of Rule 29(a), which stated that the court “shall … on motion of a defendant or of its own motion shall order the entry of judgment of acquittal” if the evidence is insufficient.

But Rule 29(a) was amended in 2002 and now states only that a court “may on its own consider whether the evidence is insufficient.” Easterbrook observed:

Once the rule became permissive, it is difficult to say a judge “errs” by not exercising the discretionary power to sua sponte acquit.
Absent any request from the defense, the judge did not “act”; he simply allowed the case to go to the jury and sentenced based on the verdict.
Under Johnson v. United States, 520 U.S. 461 (1997), plain-error review is conducted under the law at the time of the appeal—not the time of trial—making the permissive text of Rule 29(a) relevant today.

Again, because the government relied on Meadows and did not press this issue, Easterbrook refrained from dissenting on this ground, but he highlighted it as an unresolved doctrinal tension.

C. Substantial Rights and the Fourth Prong When Only $600 Is at Stake

Easterbrook also questioned whether the erroneous bank fraud convictions affected the defendants’ substantial rights and whether failing to correct them would seriously affect the fairness, integrity, or public reputation of judicial proceedings.

Key points:

The defendants’ prison terms are concurrent; vacating the bank fraud counts does not alter the length of incarceration.
The only immediate consequence of the bank fraud convictions is a $100 special assessment per count—$600 total.
Collateral consequences (e.g., loss of voting rights or jury service eligibility) arise from the fact of any felony conviction, and the defendants have numerous valid felony convictions that remain.
The defendants did not argue that the bank fraud counts themselves added any distinct collateral consequences.

From this, Easterbrook argued:

A $600 financial penalty is hard to classify as affecting “substantial rights.”
It is not obvious that leaving the bank fraud convictions in place would “seriously” tarnish the fairness or public reputation of judicial proceedings, especially given the defendants’ overall culpability and fair trial.
Conversely, reversing convictions on grounds never raised in the trial court might, in his view, risk calling the system into disrepute.

Nonetheless, because the government never argued that these prongs were unsatisfied—and indeed acted as if plain error followed automatically from legal error—Easterbrook treated the government as having forfeited reliance on Olano, Greer, and Page. In line with the Supreme Court’s party-presentation principle (United States v. Sineneng-Smith, 590 U.S. 371 (2020); Clark v. Sweeney, No. 25‑52 (U.S. Nov. 24, 2025)), he accepted the concession and joined the majority in vacating the bank fraud convictions.

Clarifying Key Legal Concepts

1. Bank Fraud vs. Wire Fraud

Bank Fraud (§ 1344(2)):
- Targets schemes to obtain property under the custody or control of a financial institution.
- Requires obtaining that property “by means of” a false or fraudulent pretence, representation, or promise.
- As interpreted in Loughrin and applied here, the misrepresentation must be the natural mechanism inducing the bank to part with its funds, and it must reach the bank in some way.
Wire Fraud (§ 1343):
- Prohibits using interstate wires (phone, internet, electronic transfers) “for the purpose of executing” a scheme to defraud.
- Does not require that the victim be a bank; any person or entity can be the victim.
- The wire need only further the scheme; it can come either before or after the fraud’s consummation if it helps move it along.

2. Plain Error Review (Fed. R. Crim. P. 52(b))

Plain error review allows appellate courts to correct certain unpreserved errors. To obtain relief, a defendant must show:

Error – a deviation from a legal rule;
Plainness – the error is clear or obvious at the time of appeal;
Substantial Rights – a reasonable probability that the error affected the outcome, typically meaning the defendant would have had a different result at trial or sentencing;
Fairness/Integrity – leaving the error uncorrected would seriously damage the fairness, integrity, or public reputation of judicial proceedings.

This framework stems from United States v. Olano, 507 U.S. 725 (1993), and later cases such as Greer v. United States, 593 U.S. 503 (2021); it is restated in the Seventh Circuit’s en banc Page decision.

3. Sufficiency-of-the-Evidence and Rule 29

A sufficiency-of-the-evidence challenge argues that, even viewing the evidence in the light most favorable to the government, no rational jury could have found guilt beyond a reasonable doubt.
Rule 29 allows a defendant to move for a judgment of acquittal on that basis during or after trial.
Filing a Rule 29 motion preserves the sufficiency issue for de novo appellate review; failing to do so generally triggers plain error review (at least under current Seventh Circuit law).

4. “Position of Public or Private Trust” (U.S.S.G. § 3B1.3)

A position of trust involves:

Substantial discretion and professional judgment;
Less direct supervision than ordinary employees receive;
Authority over significant financial or operational matters.

Typical examples include senior managers, fiduciaries, accountants, and contract administrators. What matters is not the job title but the degree of discretion and the trust placed in the defendant by the victim or employer.

5. Joint and Several Restitution

“Joint and several” restitution means:

Each defendant is independently liable for the full amount of the loss, not just a fraction;
Any payment by one defendant reduces the outstanding amount owed by all others jointly and severally liable;
The victim is not required to collect pro rata; it may collect the entire sum from any one of the jointly liable defendants, subject to equitable and enforcement considerations.

Impact and Broader Significance

1. Narrowing the Reach of Bank Fraud in Public-Corruption Cases

This decision provides clear guidance for prosecutors and defense counsel in cases involving fraud against public or quasi-public entities funded by federal money:

Where the fraudulent conduct is directed at an agency or public body (like a housing authority or municipality), and banks merely honor genuine checks issued by that victim, § 1344(2) should not be charged absent a misrepresentation reaching the bank.
The appropriate federal charges in such circumstances are likely to be wire fraud (§ 1343), mail fraud (§ 1341), federal program theft (§ 666), or other public-corruption statutes—not bank fraud.
Attempting to “bootstrap” ordinary fraud or kickback schemes into bank fraud via the mere use of checks is now even more clearly foreclosed in the Seventh Circuit.

2. Evidentiary Standards for Wire Fraud

The wire fraud analysis underscores that:

The government can rely on circumstantial evidence to show that a wire transfer furthered a fraudulent scheme; it need not match specific dollars from a wire to specific disbursements.
Temporal proximity, patterns of account activity, and the overall context can be sufficient to link an interstate transfer to fraudulent invoices.
Durham is confined to situations where the government presents no meaningful evidence of a wire’s purpose, not a rigid requirement to produce every possible document related to each wire.

3. Appellate Practice: Rule 29 and Plain Error

The case, especially Easterbrook’s concurrence, serves as a cautionary note for both sides:

Defense counsel should:
- Routinely file Rule 29 motions on legally weak counts to preserve sufficiency challenges.
- Explicitly invoke controlling Supreme Court precedent like Loughrin at trial when the government’s theory conflicts with it.
Prosecutors should:
- Fully engage with all four prongs of plain-error review on appeal; treating “plain error” as synonymous with “legal error” risks forfeiting strong procedural defenses.
- Be prepared to argue that unpreserved sufficiency challenges either do not constitute “error” (given permissive Rule 29) or do not meet the substantial-rights and fairness prongs when the practical consequences are minor.
Courts may, in future cases:
- Revisit the interplay between Rule 29 and Unitherm in the criminal context.
- Re-examine Parker’s rejection of the concurrent-sentence doctrine in light of cases where only modest monetary stakes remain.

4. Sentencing and the Abuse-of-Trust Enhancement

On the sentencing side, the decision:

Confirms that mid- to high-level managers in public agencies, who wield discretion over contracts, invoices, and budgets, are strong candidates for the § 3B1.3 enhancement when they exploit that discretion for fraud.
Encourages district courts to provide explicit alternative sentencing rationales under § 3553(a), as doing so can insulate sentences from reversal under the harmless-error doctrine (Caraway).
Signals to defense counsel that even a successful challenge to a single Guidelines enhancement may not alter the outcome if the sentencing judge makes clear an intent to impose the same sentence anyway.

Conclusion

United States v. Robinson & Smith is an important elaboration of federal fraud law and appellate practice in the Seventh Circuit.

On the merits, it draws a clear line: bank fraud under § 1344(2) requires a misrepresentation that reaches and influences a bank. Genuine checks issued by a defrauded public entity, without more, do not transform a kickback scheme into bank fraud, even if banks process those checks. At the same time, the decision affirms that wire fraud remains a robust tool for prosecuting schemes that rely on interstate electronic transfers of funds, and that circumstantial evidence can suffice to prove the nexus between a particular wire and the scheme.

Procedurally, the case highlights unresolved tensions in applying the plain error doctrine to unpreserved sufficiency challenges and raises questions about the continued vitality of earlier precedents in light of later Supreme Court decisions and rule amendments. Judge Easterbrook’s concurrence invites future litigants and perhaps the en banc court to revisit whether a Rule 29 motion should be essential to preserving sufficiency claims and how the “substantial rights” and “fairness/integrity” prongs should operate when only modest financial penalties are at stake.

Finally, the decision reinforces the seriousness with which federal courts view the abuse of managerial discretion in public agencies. Where government officials exploit positions of trust to siphon off funds from programs intended for vulnerable populations, substantial prison terms and enhancements like § 3B1.3 will remain the norm.

In sum, Robinson & Smith both tightens the doctrinal contours of bank fraud and refines the evidentiary and procedural frameworks that govern complex federal fraud prosecutions in the Seventh Circuit.