United States of America v. Scott A. Reaume

*The Honorable Glen M. Williams, Senior United States District
Judge for the Western District of Virginia, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0254P (6th Cir.)
File Name: 03a0254p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SCOTT A. REAUME,
Defendant-Appellant.
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No. 02-1112
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-81475—Gerald E. Rosen, District Judge.
Argued: June 20, 2003
Decided and Filed: July 28, 2003
Before: KENNEDY and COLE, Circuit Judges;
WILLIAMS, Senior District Judge.*
_________________
COUNSEL
ARGUED: Richard B. Ginsberg, Ann Arbor, Michigan, for
Appellant. Stephen L. Hiyama, ASSISTANT UNITED
2 United States v. Reaume No. 02-1112
STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Richard B. Ginsberg, Ann Arbor, Michigan, for
Appellant. Stephen L. Hiyama, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Defendant-Appellant
Scott A. Reaume was convicted by a jury of committing bank
fraud, in violation of 18 U.S.C. § 1344. Reaume admits to
opening several checking accounts at a federally insured
financial institution, making an initial deposit of a small sum,
writing checks from these accounts for goods and services
throughout the country with the knowledge that the accounts
did not contain sufficient funds to cover the value of the
checks, and returning the majority of the items purchased by
check to branches of stores in different locations in exchange
for cash.
After proceeding to trial on the theory that his scheme was
not intended to defraud a federally insured financial
institution, Reaume was found guilty by a jury. The final
judgment of conviction and sentence was entered on
January 3, 2002, and this timely appeal followed.
For the reasons that follow, we AFFIRM the judgment of
the district court.
I.
On August 19, 1999, a federal grand jury returned a
one-count indictment charging Reaume with bank fraud. The
indictment alleged that Reaume knowingly executed a scheme
to defraud Monroe Bank and Trust (“the Bank”).
Reaume’s jury trial began on August 14, 2001. At trial,
testimony was presented that Reaume opened two checking

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No. 02-1112 United States v. Reaume 3
accounts at the Bank using the aliases Steven D. McIlveen
and Robert Sandor. Accounts also were opened at the Bank
by Adam Rodriguez and Danny K. Drummond in their own
names. Drummond opened an additional account under the
alias of John S. Woods.
Reaume, Rodriguez, and Drummond used checks drawn
from their accounts to purchase merchandise at various
branches of national-chain retailers, and subsequently
returned most of the merchandise for cash refunds at other
branches of the stores. The Bank flagged the five accounts
early on and refused to honor the checks for which there were
insufficient funds (“NSF checks”). The losses resulting from
the passing of these NSF checks, therefore, fell on either the
retailers themselves or the check-guarantee companies that
insured the retailers.
On August 16, 2001, the jury returned a guilty verdict. On
January 3, 2002, the district court determined that Reaume’s
guideline range was twenty-seven to thirty-three months,
sentenced Reaume to thirty months of imprisonment and four
years of supervised release, and ordered him to pay restitution
in the amount of $95,649.26.
On appeal, Reaume raises four points of error. First, he
argues that the evidence presented at trial was insufficient to
maintain a conviction under the federal bank fraud statute
because there was no evidence that he intended to defraud the
bank itself, as opposed to the individual merchants or their
respective insurance companies. Second, Reaume contends
that the district court erred in refusing to award him a
two-point reduction in offense level for acceptance of
responsibility. Third, he asserts that the district court erred in
overruling his objections at sentencing to the amount of
money at issue in the fraud. Fourth, Reaume argues that the
district court erred in ordering him to pay restitution in excess
of $95,000 without considering his ability to pay.
4 United States v. Reaume No. 02-1112
II.
A. Sufficiency of the Evidence and Intent to Defraud
Reaume argues that there was insufficient evidence to find
that he specifically intended to defraud the Bank, as opposed
to the merchants or their insurers. He contends that an intent
to defraud the payee of an NSF check does not provide a basis
for a finding that there was an intent to subject the issuing
bank to a loss. Accordingly, Reaume argues that the district
court erred in denying his motion for a judgment of acquittal.
The denial of a motion for a judgment of acquittal is reviewed
de novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir.
2002).
Three elements are required for a conviction of bank fraud
pursuant to § 1344: (1) the defendant must have knowingly
executed or attempted to execute a scheme to defraud a
financial institution; (2) the defendant must have done so with
the intent to defraud; and (3) the financial institution must
have been insured by the Federal Deposit Insurance
Corporation. United States v. Everett, 270 F.3d 986, 989 (6th
Cir. 2001).
This Court previously addressed the intent element of the
bank fraud statute in United States v. Hoglund, 178 F.3d 410
(6th Cir. 1999), and Everett. While neither of these cases are
directly controlling, their explication here is critical because
it is from these cases that we distill the principle which we
apply to the present case.
In Hoglund, an attorney was convicted under § 1344 after
settling his clients’ cases without their permission, forging
their signatures on the settlement checks he received, and
depositing the money into his own account. 178 F.3d at 411.
In Hoglund, we addressed the issue of whether the
Government must prove that the defendant exposed a bank to
a risk of loss as part of the “scheme to defraud” element. Id.
at 413. Hoglund resolved this question by holding that “risk

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No. 02-1112 United States v. Reaume 5
of loss” is simply “one way of establishing intent to defraud
in bank cases.” Id. Thus, this Court found that a defendant
need not have exposed a bank to a risk of loss as an element
of bank fraud. Id. Instead, proof that the defendant “intended
to put a bank at a risk of loss” was sufficient to maintain a
bank fraud conviction. Id. Thus, Hoglund held that the bank
fraud statute is violated, even when there is no actual risk of
loss on the part of the bank, if the defendant’s intent is to
expose the bank to such a risk. While informative, Hoglund
is not controlling in the present case. Here, in contrast to
Hoglund, the defendant claims that, regardless of whether
there was an actual risk of loss, there was no intent to expose
the Bank to a risk of loss.
In Everett, the defendant, a certified public accountant, was
found guilty of bank fraud by a jury. 270 F.3d at 989. On
appeal, the defendant argued that the Government failed to
prove the specific intent required by § 1344, namely, the
intent to defraud a federally insured bank, or at least to put the
bank at a risk of loss. Id. at 990. The defendant
acknowledged that there was evidence that she intended to
defraud her client, but argued that the manner in which she
defrauded her client did not impose a risk of loss on the bank
in question. Id. In affirming the conviction, we held that the
specific intent required for bank fraud does not require putting
the bank at a risk of a loss or intending to do so “in the usual
sense.” Id. at 991. “It is sufficient if the defendant in the
course of committing fraud on someone causes a federally
insured bank to transfer funds under its possession and
control.” Id. Everett, therefore, can be said to stand for the
proposition that the bank fraud statute is violated, even if the
intended victim of the fraudulent activity is an entity other
than a federally insured financial institution, when the
fraudulent activity causes the bank to transfer funds. Thus,
the holding of Everett is also instructive but not squarely on
point, as there was no evidence in the present case indicating
that the Bank actually did transfer funds in connection with
Reaume’s fraudulent activities.
6 United States v. Reaume No. 02-1112
Unlike the defendant in Hoglund, Reaume contends that he
harbored no intent to expose the financial institution to a risk
of loss. Moreover, unlike the situation in Everett, Reaume
contends, and the evidence substantiates, that the Bank never
transferred any funds in connection with the fraudulent
activity. Thus, it appears that Reaume’s particular fact pattern
does not fall neatly under the Hoglund or Everett rubric,
which consider both the intended victim and actual loss.
We nevertheless affirm Reaume’s conviction. The specific
issue that Reaume appeals is the evidence of his intent to
defraud the Bank itself. In Everett, this Court held that an
intent to put the financial institution at a risk of loss is not
required, and that the fact that the defendant defrauded
someone was sufficient, given that the fraud caused the bank
to transfer funds. 270 F.3d at 991. In the present case, the
Bank was clearly at a risk of loss. Evidence was presented at
trial to demonstrate that, when the Bank receives an NSF
check, it makes a decision to either honor the check anyway
or to dishonor the check. If the check is dishonored, the Bank
does not lose any money, but if the check is honored, and the
account holder fails to pay back that debt to the Bank, the
Bank suffers a loss. Therefore, it is clear that Reaume’s
fraudulent activity, regardless of the intended victim, could
have caused the Bank to transfer funds. If in fact the Bank
had transferred funds, then this case would clearly be
governed by Everett, because an intent to defraud someone
would have caused the Bank to transfer funds. The issue of
Reaume’s intent simply cannot logically turn on the course of
action chosen by the Bank after receiving the NSF checks.
Accordingly, it is a necessary extension of Everett to find the
intent element of § 1344 satisfied in this case.
Everett contains language to support this outcome. In
Everett, this Court stated that the Government is probably
better advised to proceed under the wire or mail fraud statutes
where the bank has “minimal involvement, such as where a
swindler deceives someone into voluntarily writing checks to
the swindler on a good account.” Id. Nevertheless, the Court

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No. 02-1112 United States v. Reaume 7
1It should be no ted that Everett was decided on October 12, 2001,
and Reaume’s trial concluded on August 16, 2 001 .
indicated that even such a minimal involvement of the bank
is sufficient to find liability under § 1344 when the specific
intent to defraud someone is present. Id. Therefore, we need
not address the question of whether the evidence presented at
trial was sufficient for a reasonable jury to find that Reaume
intended to defraud the Bank specifically. Applying the
reasoning of Hoglund and Everett, we find that intent to
defraud the federally insured institution itself is satisfied
where: (1) the intent to defraud some entity was present; and
(2) that intended fraud placed a federally insured financial
institution at a risk of loss.
In providing the jury with instructions at the close of trial,
the district court stated that the Government not only needed
to prove that Reaume knowingly executed or participated in
a scheme to defraud a federally insured financial institution,
but also that Reaume “did so with the intent to defraud
Monroe Bank & Trust.” The district court later stated that
“the Government must prove beyond a reasonable doubt that
the scheme to defraud was employed by the defendant to
defraud Monroe Bank & Trust.” Given our holding in Everett
that the intent to have a bank be the victim of the fraudulent
conduct is not a prerequisite to maintaining a conviction
under the bank fraud statute, the jury instructions given by the
district court benefitted Reaume.1 In light of Everett,
therefore, Reaume’s argument that the evidence presented at
trial was insufficient to demonstrate the intent required by the
bank fraud statute fails.
B. Sentence Reduction for Acceptance of Responsibility
Reaume appeals the decision of the district court refusing
to grant him a two-point reduction in his offense level for
acceptance of responsibility. Because such a finding
generally presents a question of fact, this Court reviews a
8 United States v. Reaume No. 02-1112
district court’s finding that a defendant is not entitled to a
sentencing reduction for acceptance of responsibility for clear
error. United States v. Childers, 86 F.3d 562, 563 (6th Cir.
1996). However, if the only issue presented is the propriety
of applying the reduction to the uncontested facts, the
decision is reviewed de novo. United States v. Tilford, 224
F.3d 865, 867 (6th Cir. 2000).
The United States Sentencing Guidelines (the “Guidelines”)
provide that a two-point reduction in offense level is
applicable where the defendant clearly demonstrates
acceptance of responsibility for his offense. U.S.
SENTENCING GUIDELINES MANUAL § 3E1.1. While a guilty
plea is ordinarily a prerequisite for this reduction, Application
Note 2 of this provision states that conviction by trial does not
automatically exclude a defendant from consideration for this
reduction. U.S. SENTENCING GUIDELINES MANUAL § 3E1.1,
comment. 2. The Guidelines provide that, under rare
circumstances, a defendant may clearly demonstrate an
acceptance of responsibility despite exercising his
constitutional right to trial. Id. For instance, where a
defendant goes to trial to assert issues that do not relate to
factual guilt, such as a challenge to the applicability of a
statute to his conduct, a reduction may be warranted. Id.
Even in such an instance, however, “a determination that a
defendant has accepted responsibility will be based primarily
upon pre-trial statements and conduct.” Id.
Reaume’s position is that he did not contest the
Government’s factual allegations at trial, but rather, merely
contested the applicability of the bank fraud statute to the
conduct in which he participated. In contrast, the
Government maintains that Reaume did in fact contest the
issue of whether he participated in the scheme with an intent
to defraud the Bank. According to the Government,
Reaume’s specific intent to defraud the Bank is a factual
matter.

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No. 02-1112 United States v. Reaume 9
2Guideline § 2F1.1 has been repea led and replaced by the
consolidated property-crime provisions in § 2B1.1. Section 2F1.1 was
repealed prior to Reaume’s sentencing. N evertheless, due to ex po st facto
concerns that arise as a result of the harsher penalties contained in
§ 2B1 .1, the probation officer was correct to use the version of the fraud
guideline, § 2F1.1 , in effect when Reaum e’s offense occu rred. See U.S.
SENTENCING GUIDELINES MANUAL § 1B 1.11 (b)(1 ).
We agree with the Government. At the time of Reaume’s
trial, the district court and the parties accepted that the
Government’s burden included demonstrating that Reaume
intended to place the Bank at a risk of loss. Whether this
intent is required under § 1344 is a question of law, but
whether Reaume actually harbored such an intent is a
question of fact for the jury to decide. Reaume elected to put
the Government to its burden of proof at trial by denying
what was understood to be an essential factual element of
guilt. Accordingly, the refusal of the district court to award
Reaume a reduction for acceptance of responsibility was not
clear error.
C. Amount of Loss
Reaume argues that the district court erred by scoring his
Guidelines range based on a finding that the relevant conduct
contributed to between $200,000 and $350,000 in losses.
This Court will only set aside a district court’s factual finding
with regard to the amount of loss attributed to a defendant
under Guidelines § 2F1.1(b) if it concludes that the district
court’s finding of fact was clearly erroneous.2 United States
v. Ware, 282 F.3d 902, 907 (6th Cir. 2002).
In its first sentencing memorandum, the Government
attributed $211,193.99 in losses to Reaume, comprising the
following sums: (1) $108,328.37 for the losses caused by
Reaume, Rodriguez, and Drummond through the use of NSF
checks from the Bank; (2) $92,000.00 for the losses caused by
the use of NSF checks by Jamie Reaume, the defendant’s
10 United States v. Reaume No. 02-1112
younger brother; and (3) $10,865.62 for the losses caused by
Pamela Reaume, the defendant’s sister.
At the sentencing hearing, the district court expressed
concern about attributing to Reaume the losses caused by his
siblings. Accordingly, the district court decided not to
impose a sentence until it had the opportunity to hear
testimony from the two siblings and make a determination as
to whether their conduct was connected to Reaume’s conduct
in a manner that was sufficient to satisfy the relevant conduct
criteria for sentencing purposes.
In its second sentencing memorandum, the Government
abandoned its position that the activity of Reaume’s siblings
should be attributed to Reaume and instead argued that the
additional relevant conduct for which Reaume should be held
responsible involved Reaume’s own fraudulent conduct
beyond that charged in the indictment. According to the
Government, Reaume opened numerous fraudulent checking
accounts at other financial institutions throughout the country.
The evidence of this activity consisted of: (1) Reaume’s 1991
arrest in Illinois for attempting to purchase clothing with a
bad check; (2) Reaume’s admission, subsequent to the 1991
arrest, that he had made as much as $70,000 per year through
his NSF-checking scheme; (3) Adam Rodriguez’s testimony
that he and Reaume had been traveling the country writing
bad checks for about three years, obtaining thousands of
dollars a month by doing so; (4) numerous canceled checks
obtained by the FBI; (5) a number of fake identification cards
possessed by Reaume; (6) Reaume’s 1993 arrest in Florida for
passing bad checks; and (7) the absence of any record of
legitimate employment. The district court accepted the
Government’s rationale and found Reaume to be responsible
for between $200,000 and $350,000 in losses.
Reaume contends that this finding was in error for two
reasons. First, Reaume argues that the district court erred by
allowing the Government to change its theory on which the
amount of loss was based without providing him with

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No. 02-1112 United States v. Reaume 11
adequate notice. Second, Reaume maintains that even if the
district court had ruled properly in permitting the Government
to advance its new theory, the basis for holding Reaume
responsible for more than $200,000 in losses was too
speculative in nature to satisfy the Government’s burden of
proving Reaume’s responsibility for that sum by a
preponderance of the evidence.
Reaume’s contention that the district court erred in
permitting the Government to change theories between
sentencing hearings is without merit. The rationale on which
the amount of losses was calculated was perfectly reasonable,
and Reaume received notice of this change in position when
a copy of the Government’s second sentencing memorandum
was sent to him. There was no error in the district court’s
decision to permit the Government to proceed on its new
theory regarding relevant conduct.
Similarly, Reaume’s argument that the district court erred
in finding him responsible for over $200,000 in losses is also
without merit. The district court’s findings with respect to
relevant conduct are only disturbed if clearly erroneous,
United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996),
and need only be based on the preponderance of the evidence,
United States v. Meacham, 27 F.3d 214, 216 (6th Cir. 1994).
The evidence brought forth by the Government to substantiate
the relevant conduct is sufficient to support the district court’s
findings.
D. Order of Restitution
The district court ordered Reaume to pay restitution in the
amount of $95,649.26. Reaume was ordered to “pay any
restitution obligations still outstanding according to a monthly
schedule recommended by the probation department and
approved by [the district] court.” Reaume argues that the
district court erred in imposing this amount of restitution
without considering his ability to pay.
12 United States v. Reaume No. 02-1112
This Court reviews de novo whether a restitution order is
permitted under the law. United States v. Dunigan, 163 F.3d
979, 981 (6th Cir. 1999). Generally, if the restitution order is
legally permissible, the amount ordered is then reviewed for
an abuse of discretion. Id. However, here, because Reaume
did not object to the restitution order at his sentencing, the
sentencing decision is reviewed for plain error. See United
States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). To
establish plain error, a defendant must show: (1) that an error
occurred in the district court; (2) that the error was plain, i.e.,
obvious or clear; (3) that the error affected substantial rights
of the defendant; and (4) that this adverse impact seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings. Id.
The parties agree that a restitution order here is legally
permissible pursuant to the Victim and Witness Protection
Act (“VWPA”). 18 U.S.C. § 3663. Accordingly, the only
issue before this Court with regard to the restitution order is
whether the district court committed plain error in ordering
restitution in the amount of $95,649.26.
At Reaume’s sentencing, the district court made no
reference to Reaume’s ability to pay the restitution order in
full. In determining the amount of restitution that should be
ordered, a sentencing court is required to consider the factors
listed in 18 U.S.C. § 3664(a). Dunigan, 163 F.3d at 981. The
§ 3664(a) factors include the economic circumstances of the
defendant. The Government argues that all of the information
relevant to the restitution order was contained in the
Presentence Investigation Report.
While it is true that “a district court must have, at a
minimum, some indication that a defendant will be able to
pay the amount of restitution ordered in order to comply with
18 U.S.C. § 3664(a),” Dunigan, 163 F.3d at 982, this Court
has also held that “[s]pecific findings in the imposition of
restitution are not required.” United States v.
Jackson-Randolph, 282 F.3d 369, 386 (6th Cir. 2002). Given

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No. 02-1112 United States v. Reaume 13
the findings in the Presentence Investigation Report that
Reaume has an Associate Degree in Applied Science, lives
with his parents when in the United States, and has only a
very small amount of debt, the amount of restitution ordered
by the district court is not clear error. Moreover, the district
court did not order that the restitution be paid during any
particular period of time.
A restitution order is permissible even if the defendant
lacks the present ability to pay. United States v. Faasse, 265
F.3d 475, 494 (6th Cir. 2001) (en banc). The burden is on the
defendant to demonstrate that a restitution order far exceeds
his resources and earning potential, United States v. Adams,
214 F.3d 724, 730 (6th Cir. 2000), and Reaume has not met
this burden here. While it may have been preferable for the
district court to have engaged in a more explicit analysis of
Reaume’s ability to pay this restitution amount, it cannot be
said that the failure to do so in this instance meets the
requirements of the plain error standard.
III.
For the foregoing reasons, we AFFIRM the judgment of
the district court.

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