Loughrin v. United States

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LOUGHRIN v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 13–316. Argued April 1, 2014—Decided June 23, 2014

A part of the federal bank fraud statute, 18 U. S. C. §1344(2), makes it

a crime to “knowingly execut[e] a scheme . . . to obtain” property

owned by, or under the custody of, a bank “by means of false or

fraudulent pretenses.” Petitioner Kevin Loughrin was charged with

bank fraud after he was caught forging stolen checks, using them to

buy goods at a Target store, and then returning the goods for cash.

The District Court declined to give Loughrin’s proposed jury instruc-

tion that a conviction under §1344(2) required proof of “intent to de-

fraud a financial institution.” The jury convicted Loughrin, and the

Tenth Circuit affirmed.

Held: Section 1344(2) does not require the Government to prove that a

defendant intended to defraud a financial institution. Pp. 4–15.

(a) Section 1344(2) requires only that the defendant intend to ob-

tain bank property and that this end is accomplished “by means of” a

false statement. No additional requirement of intent to defraud a

bank appears in the statute’s text. And imposing that requirement

would prevent §1344(2) from applying to cases falling within the

statute’s clear terms, such as frauds directed against a third-party

custodian of bank-owned property. Loughrin’s construction would al-

so make §1344(2) a mere subset of §1344(1), which prohibits any

scheme “to defraud a financial institution.” That view is untenable

because those clauses are separated by the disjunctive “or,” signaling

that each is intended to have separate meaning. And to read clause

(1) as fully encompassing clause (2) contravenes two related interpre-

tive canons: that different language signals different meaning, and

that no part of a statute should be superfluous. Pp. 4–6.

(b) Loughrin claims that his view is supported by similar language

in the federal mail fraud statute and by federalism principles, but his

2 LOUGHRIN v. UNITED STATES

Syllabus

arguments are unpersuasive. Pp. 7–15.

(1) In McNally v. United States, 483 U. S. 350, this Court inter-

preted similar language in the mail fraud statute, §1341—which

served as a model for §1344—to set forth just one offense, despite the

use of the word “or.” But the two statutes have notable textual dif-

ferences. The mail fraud law contains two phrases strung together in

a single, unbroken sentence, whereas §1344’s two clauses have sepa-

rate numbering, line breaks, and equivalent indentation—all indica-

tions of separate meaning. Moreover, Congress likely did not intend

to adopt McNally’s interpretation when it enacted §1344, because at

that time (three years before McNally) every Court of Appeals had in-

terpreted the word “or” in the mail fraud statute in its usual, disjunc-

tive sense. And while McNally found that unique features of the mail

fraud statute’s history supported its view, the legislative history sur-

rounding the adoption of §1344 points the other way. Pp. 7–9.

(2) Loughrin also contends that without an element of intent to

defraud a bank, §1344(2) would apply to every minor fraud in which

the victim happens to pay by check. This, he says, would unduly ex-

pand the reach of federal criminal law into an area traditionally left

to the States. But this argument ignores a significant textual limit

on §1344(2)’s reach: The criminal must acquire (or attempt to ac-

quire) the bank property “by means of” the misrepresentation. That

language limits §1344(2)’s application to cases (like this one) in which

the misrepresentation has some real connection to a federally insured

bank, and thus to the pertinent federal interest. Pp. 9–15.

710 F. 3d 1111, affirmed.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined,

and in which SCALIA and THOMAS, JJ., joined as to Parts I and II, Part

III–A except the last paragraph, and the last footnote of Part III–B.

SCALIA, J., filed an opinion concurring in part and concurring in the

judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion con-

curring in part and concurring in the judgment.

Cite as: 573 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–316

_________________

KEVIN LOUGHRIN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 23, 2014]

JUSTICE KAGAN delivered the opinion of the Court.

A provision of the federal bank fraud statute, 18 U. S. C.

§1344(2), makes criminal a knowing scheme to obtain

property owned by, or in the custody of, a bank “by means

of false or fraudulent pretenses, representations, or prom-

ises.” The question presented is whether the Government

must prove that a defendant charged with violating that

provision intended to defraud a bank. We hold that the

Government need not make that showing.

I

Petitioner Kevin Loughrin executed a scheme to convert

altered or forged checks into cash. Pretending to be a

Mormon missionary going door-to-door in a neighborhood

in Salt Lake City, he rifled through residential mailboxes

and stole any checks he found. Sometimes, he washed,

bleached, ironed, and dried the checks to remove the

existing writing, and then filled them out as he wanted;

other times, he did nothing more than cross out the name

of the original payee and add another. And when he was

lucky enough to stumble upon a blank check, he completed

it and forged the accountholder’s signature. Over several

months, Loughrin made out six of these checks to the

2 LOUGHRIN v. UNITED STATES

Opinion of the Court

retailer Target, for amounts of up to $250. His modus

operandi was to go to a local store and, posing as the

accountholder, present an altered check to a cashier to

purchase merchandise. After the cashier accepted the

check (which, remarkably enough, happened time after

time), Loughrin would leave the store, then turn around

and walk back inside to return the goods for cash.

Each of the six checks that Loughrin presented to Tar-

get was drawn on an account at a federally insured bank,

including Bank of America and Wells Fargo. Employees

in Target’s back office identified three of the checks as

fraudulent, and so declined to submit them for payment.

Target deposited the other three checks. The bank refused

payment on one, after the accountholder notified the bank

that she had seen a man steal her mail. Target appears to

have received payment for the other two checks, though

the record does not conclusively establish that fact. See

Brief for United States 6, 7, n. 3.

The Federal Government eventually caught up with

Loughrin and charged him with six counts of committing

bank fraud—one for each of the altered checks presented

to Target. The federal bank fraud statute, 18 U. S. C.

§1344, provides as follows:

“Whoever knowingly executes, or attempts to execute,

a scheme or artifice—

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits, as-

sets, securities, or other property owned by, or un-

der the custody or control of, a financial institution,

by means of false or fraudulent pretenses, represen-

tations, or promises;

shall be fined not more than $1,000,000 or imprisoned

not more than 30 years, or both.”1

——————

1A “financial institution,” as defined in 18 U. S. C. §20, includes a

Cite as: 573 U. S. ____ (2014) 3

Opinion of the Court

Ruling (for a reason not material here) that Circuit prece-

dent precluded convicting Loughrin under the statute’s

first clause, §1344(1), the District Court allowed the case

to go to the jury on the statute’s second, §1344(2).

The court instructed the jury that it could convict

Loughrin under that clause if, in offering the fraudulent

checks to Target, he had “knowingly executed or at-

tempted to execute a scheme or artifice to obtain money or

property from the [banks on which the checks were drawn]

by means of false or fraudulent pretenses, representations,

or promises.” App. 7. Loughrin asked as well for another

instruction: The jury, he argued, must also find that he

acted with “intent to defraud a financial institution.” App.

to Pet. for Cert. 43a. The court, however, declined to give

that charge, and the jury convicted Loughrin on all six

counts.

The United States Court of Appeals for the Tenth Cir-

cuit affirmed. See 710 F. 3d 1111 (2013). As relevant

here, it rejected Loughrin’s argument that “a conviction

under §1344(2) requires proof that he intended to defraud

the banks on which the [altered] checks had been drawn.”

Id., at 1115. That intent, the court reasoned, is necessary

only under the bank fraud law’s first clause. The court

acknowledged that under its interpretation, §1344(2)

“cast[s] a wide net for bank fraud liability,” but concluded

that such a result is “dictated by the plain language of the

statute.” Id., at 1117.

We granted certiorari, 571 U. S. ___ (2013), to resolve a

Circuit split on whether §1344(2) requires the Government

to show that a defendant intended to defraud a federally

insured bank or other financial institution.2 We now

——————

federally insured bank of the kind involved here.

2 Compare 710 F. 3d 1111, 1116 (CA10 2013) (case below) (§1344(2)

does not require intent to defraud a bank); United States v. Everett, 270

F. 3d 986, 991 (CA6 2001) (same), with United States v. Thomas, 315

F. 3d 190, 197 (CA3 2002) (§1344(2) requires such intent); United

4 LOUGHRIN v. UNITED STATES

Opinion of the Court

affirm the Tenth Circuit’s decision.

II

We begin with common ground. All parties agree, as do

we and the Courts of Appeals, that §1344(2) requires that

a defendant “knowingly execute[ ], or attempt[ ] to exe-

cute, a scheme or artifice” with at least two elements.

First, the clause requires that the defendant intend “to

obtain any of the moneys . . . or other property owned by,

or under the custody or control of, a financial institution.”

(We refer to that element, more briefly, as intent “to ob-

tain bank property.”) Brief for United States 11, 17, 20,

22, 32; Brief for Petitioner 30–31. And second, the clause

requires that the envisioned result—i.e., the obtaining of

bank property—occur “by means of false or fraudulent

pretenses, representations, or promises.” See Brief for

United States 21–22; Reply Brief 18–19. Loughrin does

not contest the jury instructions on either of those two

elements. Nor does he properly challenge the sufficiency

of the evidence supporting them here.3

The single question presented is whether the Govern-

ment must prove yet another element: that the defendant

——————

States v. Kenrick, 221 F. 3d 19, 29 (CA1 2000) (same); United States v.

Jacobs, 117 F. 3d 82, 92–93 (CA2 1997) (same).

3 Loughrin argued to the jury that the evidence failed to show that he

intended to obtain bank property: He claimed that once he “obtained

cash from Target, . . . he was indifferent to whether Target ever sub-

mitted the check to a bank or whether a bank ever made payment on

it.” Brief for Petitioner 32; see Tr. 233–235; App. to Pet. for Cert. 46a.

The jury rejected that contention, as did the District Court on a motion

for judgment of acquittal. See Record 168. In his appeal, Loughrin

waived the argument by conceding that if the District Court correctly

instructed the jury on §1344(2)’s elements, “then there was sufficient

evidence to convict.” Appellant’s Opening Brief in No. 11–4158 (CA10),

p. 34. And although Loughrin’s briefs to this Court attempt to cast

doubt on the jury’s finding that he intended to obtain bank property,

see Brief for Petitioner 30–32, that issue is not “fairly included” in the

question his certiorari petition presented, Sup. Ct. R. 14.1(a).

Cite as: 573 U. S. ____ (2014) 5

Opinion of the Court

intended to defraud a bank. As Loughrin describes it, that

element would compel the Government to show not just

that a defendant intended to obtain bank property (as the

jury here found), but also that he specifically intended to

deceive a bank. See Reply Brief 17. And that difference,

Loughrin claims, would have mattered in this case, be-

cause his intent to deceive ran only to Target, and not to

any of the banks on which his altered checks were drawn.

But the text of §1344(2) precludes Loughrin’s argument.

That clause focuses, first, on the scheme’s goal (obtaining

bank property) and, second, on the scheme’s means (a

false representation). We will later address how the

“means” component of §1344(2) imposes certain inherent

limits on its reach. See infra, at 11–14. But nothing in

the clause additionally demands that a defendant have a

specific intent to deceive a bank. And indeed, imposing

that requirement would prevent §1344(2) from applying to

a host of cases falling within its clear terms. In particular,

the clause covers property “owned by” the bank but in

someone else’s custody and control (say, a home that the

bank entrusted to a real estate company after foreclosure);

thus, a person violates §1344(2)’s plain text by deceiving a

non-bank custodian into giving up bank property that it

holds. Yet under Loughrin’s view, the clause would not

apply to such a case except in the (presumably rare) cir-

cumstance in which the fraudster’s intent to deceive ex-

tended beyond the custodian to the bank itself. His pro-

posed inquiry would thus function as an extra-textual

limit on the clause’s compass.

And Loughrin’s construction of §1344(2) becomes yet

more untenable in light of the rest of the bank fraud stat-

ute. That is because the first clause of §1344, as all agree,

includes the requirement that a defendant intend to “de-

fraud a financial institution”; indeed, that is §1344(1)’s

whole sum and substance. See Brief for United States 18;

Brief for Petitioner 8. To read the next clause, following

6 LOUGHRIN v. UNITED STATES

Opinion of the Court

the word “or,” as somehow repeating that requirement,

even while using different words, is to disregard what “or”

customarily means. As we have recognized, that term’s

“ordinary use is almost always disjunctive, that is, the

words it connects are to be given separate meanings.”

United States v. Woods, 571 U. S. ___, ___ (2013) (slip op.,

at 14). Yet Loughrin would have us construe the two

entirely distinct statutory phrases that the word “or” joins

as containing an identical element. And in doing so, his

interpretation would make §1344’s second clause a mere

subset of its first: If, that is, §1344(2) implicitly required

intent to defraud a bank, it would apply only to conduct

already falling within §1344(1). Loughrin’s construction

thus effectively reads “or” to mean “including”—a defini-

tion foreign to any dictionary we know of.

As that account suggests, Loughrin’s view collides as

well with more general canons of statutory interpretation.

We have often noted that when “Congress includes partic-

ular language in one section of a statute but omits it in

another”—let alone in the very next provision—this Court

“presume[s]” that Congress intended a difference in mean-

ing. Russello v. United States, 464 U. S. 16, 23 (1983)

(citation omitted). And here, as just stated, overriding

that presumption would render §1344’s second clause

superfluous. Loughrin’s view thus runs afoul of the “car-

dinal principle” of interpretation that courts “must give

effect, if possible, to every clause and word of a statute.”

Williams v. Taylor, 529 U. S. 362, 404 (2000) (citation

omitted).4

——————

4 Loughrin responds that our interpretation of the statute creates a

converse problem of superfluity: Clause (2), he says, would emerge so

broad as to wholly swallow Clause (1). See Reply Brief 7. But that is

not right. The Courts of Appeals, for example, have unanimously

agreed that the Government can prosecute check kiting (i.e., writing

checks against an account with insufficient funds in a way designed to

keep them from bouncing) only under Clause (1), because such schemes

Cite as: 573 U. S. ____ (2014)

7

Opinion of the Court

III

Loughrin makes two principal arguments to avoid the

import of the statute’s plain text. First, he relies on this

Court’s construction of comparable language in the federal

mail fraud statute to assert that Congress intended

§1344(2) merely to explicate the scope of §1344(1)’s prohi-

bition on scheming to defraud a bank, rather than to cover

any additional conduct. And second, he contends that

unless we read the second clause in that duplicative way,

its coverage would extend to a vast range of fraudulent

schemes, thus intruding on the historic criminal jurisdic-

tion of the States. Neither argument is without force, but

in the end, neither carries the day.

A

“[D]espite appearances,” Loughrin avers, §1344(2) has

no independent meaning: It merely specifies part of what

§1344(1) already encompasses. Brief for Petitioner 8. To

support that concededly counterintuitive argument,

Loughrin invokes our decision in McNally v. United

States, 483 U. S. 350 (1987), interpreting similar language

in the mail fraud statute, 18 U. S. C. §1341. That law,

which served as a model for §1344, see Neder v. United

States, 527 U. S. 1, 20–21 (1999), prohibits using the mail

to further “any scheme or artifice to defraud, or for obtain-

ing money or property by means of false or fraudulent

pretenses, representations, or promises.” Loughrin rightly

explains that, despite the word “or,” McNally understood

that provision as setting forth just one offense—using the

mails to advance a scheme to defraud. The provision’s

——————

do not involve any false representations. See Tr. of Oral Arg. 46–47;

see, e.g., United States v. Doherty, 969 F. 2d 425, 427–428 (CA7 1992)

(citing Williams v. United States, 458 U. S. 279, 284–285 (1982)). No

doubt, the overlap between the two clauses is substantial on our read-

ing, but that is not uncommon in criminal statutes. See, e.g., Hubbard

v. United States, 514 U. S. 695, 714, n. 14 (1995).

8 LOUGHRIN v. UNITED STATES

Opinion of the Court

back half, we held, merely codified a prior judicial decision

applying the front half: In other words, the back clarified

that the front included certain conduct, rather than doing

independent work. 483 U. S., at 358–359. According to

Loughrin, we should read the bank fraud statute in the

same way.

But the two statutes, as an initial matter, have notable

textual differences. The mail fraud law contains two

phrases strung together in a single, unbroken sentence.

By contrast, §1344’s two clauses have separate numbers,

line breaks before, between, and after them, and equiva-

lent indentation—thus placing the clauses visually on an

equal footing and indicating that they have separate

meanings. The legislative structure thus reinforces the

usual (even if not McNally’s) understanding of the word

“or” as meaning . . . well, “or”—rather than, as Loughrin

would have it, “including.”

Moreover, Loughrin’s reliance on McNally encounters a

serious chronological problem. Congress passed the bank

fraud statute in 1984, three years before we decided that

case. And at that time, every Court of Appeals to have

addressed the issue had concluded that the two relevant

phrases of the mail fraud law must be read “in the dis-

junctive” and “construed independently.” 483 U. S., at 358

(citing, e.g., United States v. Clapps, 732 F. 2d 1148, 1152

(CA3 1984); United States v. States, 488 F. 2d 761, 764

(CA8 1973)). McNally disagreed, eschewing the most

natural reading of the text in favor of evidence it found in

the drafting history of the statute’s money-or-property

clause. But the Congress that passed the bank fraud

statute could hardly have predicted that McNally would

overturn the lower courts’ uniform reading. We thus see

no reason to doubt that in enacting §1344, Congress said

what it meant and meant what it said, see Connecticut

Nat. Bank v. Germain, 503 U. S. 249, 254 (1992)—i.e., that

it both said “or” and meant “or” in the usual sense.

Cite as: 573 U. S. ____ (2014) 9

Opinion of the Court

And a peek at history, of the kind McNally found deci-

sive, only cuts against Loughrin’s reading of the bank

fraud statute. According to McNally, Congress added the

mail fraud statute’s second, money-or-property clause

merely to affirm a decision of ours interpreting the ban on

schemes “to defraud”: The second clause, McNally rea-

soned, thus worked no substantive change in the law. See

483 U. S., at 356–359 (discussing Congress’s codification of

Durland v. United States, 161 U. S. 306 (1896)). By con-

trast, Congress passed the bank fraud statute to disap-

prove prior judicial rulings and thereby expand federal

criminal law’s scope—and indeed, partly to cover cases

like Loughrin’s. One of the decisions prompting enact-

ment of the bank fraud law, United States v. Maze, 414

U. S. 395 (1974), involved a defendant who used a stolen

credit card to obtain food and lodging. (Substitute a check

for a credit card and Maze becomes Loughrin.) The Gov-

ernment brought charges of mail fraud, relying on post-

purchase mailings between the merchants and issuing

bank to satisfy the statute’s mailing element. But the

Court held those mailings insufficiently integral to the

fraudulent scheme to support the conviction. See id., at

402. Hence, Maze created a “serious gap[ ] . . . in Federal

jurisdiction over frauds against banks.” S. Rep. No. 98–

225, p. 377 (1983). Congress passed §1344 to fill that gap,

enabling the Federal Government to prosecute fraudsters

like Maze and Loughrin. We will not deprive that enact-

ment of its full effect because McNally relied on different

history to adopt a counter-textual reading of a similar

provision.

B

Loughrin also appeals to principles of federalism to

support his proffered construction. Unless we read

§1344(2) as requiring intent to defraud a bank, Loughrin

contends, the provision will extend to every fraud, no

10 LOUGHRIN v. UNITED STATES

Opinion of the Court

matter how prosaic, happening to involve payment with a

check—even when that check is perfectly valid. Consider,

for example, a garden-variety con: A fraudster sells some-

thing to a customer, misrepresenting its value. There are

countless variations, but let’s say the fraudster passes off

a cheap knock-off as a Louis Vuitton handbag. The victim

pays for the bag with a good check, which the criminal

cashes. Voila!, Loughrin says, bank fraud has just hap-

pened—unless we adopt his narrowing construction. After

all, the criminal has intended to “obtain . . . property . . .

under the custody or control of ” the bank (the money in

the victim’s checking account), and has made “false or

fraudulent . . . representations” (the lies to the victim

about the handbag).5 But if the bank fraud statute were

to encompass all such schemes, Loughrin continues, it

would interfere with matters “squarely within the tradi-

tional criminal jurisdiction of the state courts.” Brief for

Petitioner 29. We should avoid such a “sweeping expan-

sion of federal criminal” law, he concludes, by reading

§1344(2), just like §1344(1), as requiring intent to defraud

a bank. Reply Brief 3 (quoting Cleveland v. United States,

531 U. S. 12, 24 (2000)).

We agree with this much of what Loughrin argues:

Unless the text requires us to do so, we should not con-

strue §1344(2) as a plenary ban on fraud, contingent only

on use of a check (rather than cash). As we have often

(and recently) repeated, “we will not be quick to assume

——————

5 One might think the Federal Government would never use the bank

fraud statute to prosecute such ordinary frauds just because they

happen to involve payment by check rather than cash. But in fact, the

Government has brought a number of cases alleging violations of

§1344(2) on that theory (so far, it appears, unsuccessfully). See, e.g.,

Thomas, 315 F. 3d 190 (a home health care worker got a valid check

from a patient to buy groceries, but then cashed the check and pocketed

the money); United States v. Rodriguez, 140 F. 3d 163 (CA2 1998) (an

employee filed fake invoices with her employer, causing the company to

issue valid checks to her friend for services never rendered).

Cite as: 573 U. S. ____ (2014) 11

Opinion of the Court

that Congress has meant to effect a significant change in

the sensitive relation between federal and state criminal

jurisdiction.” Bond v. United States, 572 U. S. ___, ___

(2014) (slip op., at 13) (quoting United States v. Bass, 404

U. S. 336, 349 (1971)); see Cleveland, 531 U. S., at 24 (“We

resist the Government’s reading . . . because it invites us

to approve a sweeping expansion of federal criminal juris-

diction in the absence of a clear statement by Congress”);

Jones v. United States, 529 U. S. 848, 858 (2000) (similar).

Just such a rebalancing of criminal jurisdiction would

follow from interpreting §1344(2) to cover every pedestrian

swindle happening to involve payment by check, but in no

other way affecting financial institutions. Indeed, even

the Government expresses some mild discomfort with

“federalizing frauds that are only tangentially related to

the banking system.” Brief for United States 41.

But in claiming that we must therefore recognize an

invisible element, Loughrin fails to take account of a

significant textual limitation on §1344(2)’s reach. Under

that clause, it is not enough that a fraudster scheme to

obtain money from a bank and that he make a false

statement. The provision as well includes a relational

component: The criminal must acquire (or attempt to

acquire) bank property “by means of ” the misrepresenta-

tion. That phrase typically indicates that the given result

(the “end”) is achieved, at least in part, through the speci-

fied action, instrument, or method (the “means”), such

that the connection between the two is something more

than oblique, indirect, and incidental. See, e.g., Webster’s

Third New International Dictionary 1399 (2002) (defining

“by means of ” as “through the instrumentality of: by the

use of as a means”); 9 Oxford English Dictionary 516 (2d

ed. 1989) (defining “means” as “[a]n instrument, agency,

method, or course of action, by the employment of which

some object is or may be attained, or which is concerned in

bringing about some result”). In other words, not every

12 LOUGHRIN v. UNITED STATES

Opinion of the Court

but-for cause will do. If, to pick an example out of a hat,

Jane traded in her car for money to take a bike trip cross-

country, no one would say she “crossed the Rockies by

means of a car,” even though her sale of the car somehow

figured in the trip she took. The relation between those

things would be (as the Government puts it) too “tangen-

tial[ ]” to make use of the phrase at all appropriate. Brief

for United States 41.

Section 1344(2)’s “by means of ” language is satisfied

when, as here, the defendant’s false statement is the

mechanism naturally inducing a bank (or custodian of

bank property) to part with money in its control. That

occurs, most clearly, when a defendant makes a misrepre-

sentation to the bank itself—say, when he attempts to

cash, at the teller’s window, a forged or altered check. In

that event, the defendant seeks to obtain bank property by

means of presenting the forgery directly to a bank em-

ployee. But no less is the counterfeit check the “means” of

obtaining bank funds when a defendant like Loughrin

offers it as payment to a third party like Target.6 After

all, a merchant accepts a check only to pass it along to a

bank for payment; and upon receipt from the merchant,

that check triggers the disbursement of bank funds just as

if presented by the fraudster himself. So in either case,

the forged or altered check—i.e., the false statement—

serves in the ordinary course as the means (or to use other

words, the mechanism or instrumentality) of obtaining

bank property. To be sure, a merchant might detect the

——————

6 The Government in such a case may, of course, face the separate

claim that the defendant did not intend to obtain bank property at all:

As noted earlier, Loughrin argued this point to the jury, contending

(unsuccessfully) that he merely wanted to get cash from Target. See

n. 3, supra. All we say here, for the reasons next stated, is that when

the defendant has the requisite intent to acquire bank property, his

presentation of a forged or altered check to a third party satisfies

§1344(2)’s “means” requirement.

Cite as: 573 U. S. ____ (2014) 13

Opinion of the Court

fraud (as Target sometimes did) and decline to submit the

forged or altered check to the bank. But that is to say only

that the defendant’s scheme to obtain bank property by

means of a false statement may not succeed. And we have

long made clear that such failure is irrelevant in a bank

fraud case, because §1344 punishes not “completed

frauds,” but instead fraudulent “scheme[s].” Neder, 527

U. S., at 25.

By contrast, the cases Loughrin hopes will unnerve us—

exemplified by the handbag swindle—do not satisfy

§1344(2)’s “means” requirement.7 Recall that in such a

case the check is perfectly valid; so the check itself is not

(as it was here) a false or fraudulent means of obtaining

bank money. And the false pretense that has led, say, the

handbag buyer to give a check to the fraudster has noth-

ing to do with the bank that will cash it: No one would

dream of passing on to the bank (as Target would forward

a forged check) the lie that a knock-off is a Louis Vuitton.

The bank’s involvement in the scheme is, indeed, wholly

fortuitous—a function of the victim’s paying the fraudster

by (valid) check rather than cash. Of course, the bank

would not have disbursed funds had the misrepresentation

never occurred, and in that sense, the lie counts as a but-

for cause of the bank’s payment. But as we have said,

§1344(2)’s “by means of ” language requires more, see

supra, at 11–12: It demands that the defendant’s false

statement is the mechanism naturally inducing a bank (or

custodian) to part with its money. And in cases like the

handbag swindle, where no false statement will ever go to

a financial institution, the fraud is not the means of ob-

taining bank property.8

——————

7 Even the Government, we note, acknowledges that §1344(2) is rea-

sonably read to exclude such cases from its coverage. See Brief for

United States 40–44; Tr. of Oral Arg. 43–47.

8 JUSTICE SCALIA takes issue with our limitation of §1344(2), contend-

ing first that the fraudster’s “indifferen[ce] to the victim’s method of

14 LOUGHRIN v. UNITED STATES

Opinion of the Court

The premise of Loughrin’s federalism argument thus

collapses. He claims that we must import an unstated

element into §1344(2) to avoid covering run-of-the-mill

frauds, properly of concern only to States. But in fact, the

text of §1344(2) already limits its scope to deceptions that

have some real connection to a federally insured bank, and

thus implicate the pertinent federal interest. See S. Rep.

No. 98–225, at 378 (noting that federal “jurisdiction is

based on the fact that the victim of the offense is a federally

——————

payment” does not “cause what is a means not to be a means.” Post, at

2–3 (opinion concurring in part and concurring in judgment) (emphasis

deleted). To illustrate the point, he offers an example: Someone “ob-

tain[s] 7-Eleven coffee by means of [his] two dollars” even if he went to

7-Eleven rather than Sheetz only because it happened to be the closest.

Post, at 3. But that objection is based on a misunderstanding of our

opinion. The “by means of” phrase calls for an inquiry into the direct-

ness of the relationship between means and ends, not the fraudster’s

subjective intent. (We take it JUSTICE SCALIA agrees; he recognizes that

“not every but-for cause of an act is a cause ‘by means of’ which the act

has occurred.” Post, at 2.) And we concur with the bottom line of

JUSTICE SCALIA’s example: There, the means (the two dollars) is the

thing that achieves the specified end (getting the cup of 7-Eleven

coffee). By contrast, for the reasons elaborated above, the misstate-

ment in our handbag hypothetical is not the mechanism by which the

fraudster obtains bank property, given that the lie will never reach the

bank.

And so JUSTICE SCALIA tries another example, this one (involving

Little Bobby) contesting our view of directness. Post, at 3–4. But such

hypotheticals mostly show that what relationships count as close

enough to satisfy the phrase “by means of” will depend almost entirely

on context. (We might counter with some examples of our own, but we

fear that would take us down an endless rabbit hole.) Language like

“by means of” is inherently elastic: It does not mean one thing as to all

fact patterns—and certainly not in all statutes, given differences in

context and purpose. All we say here is that the phrase, as used in

§1344(2), is best read, for the federalism-related reasons we have given,

see supra, at 9–11, as drawing a line at frauds that have some real

connection to a federally insured bank—namely, frauds in which a false

statement will naturally reach such a bank (or a custodian of the bank’s

property).

Cite as: 573 U. S. ____ (2014) 15

Opinion of the Court

controlled or insured institution”). And Loughrin’s own

crime, as we have explained, is one such scheme, because

he made false statements, in the form of forged and al-

tered checks, that a merchant would, in the ordinary

course of business, forward to a bank for payment. See

supra, at 12–13. We therefore reject Loughrin’s reading of

§1344(2) and his challenge to his conviction.9

For the reasons stated, we affirm the judgment of the

Tenth Circuit.

It is so ordered.

——————

9 As a last-gasp argument, Loughrin briefly asserts that §1344(2) at

least requires the Government to prove that the defendant’s scheme

created a risk of financial loss to the bank. See Brief for Petitioner 36–

40. But once again, nothing like that element appears in the clause's

text. Indeed, the broad language in §1344(2) describing the property at

issue—“property owned by or under the custody or control of” a bank—

appears calculated to avoid entangling courts in technical issues of

banking law about whether the financial institution or, alternatively, a

depositor would suffer the loss from a successful fraud. See United

States v. Nkansah, 699 F. 3d 743, 754 (CA2 2012) (Lynch, J., concurring

in part and concurring in judgment in part). And Loughrin’s argument

fits poorly with our prior holding that the gravamen of §1344 is the

“scheme,” rather than “the completed fraud,” and that the offense

therefore does not require “damage” or “reliance.” Neder v. United

States, 527 U. S. 1, 25 (1999); see supra, at 13.

Cite as: 573 U. S. ____ (2014) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–316

_________________

KEVIN LOUGHRIN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 23, 2014]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

concurring in part and concurring in the judgment.

I join Parts I and II of the Court’s opinion, Part III–A

except the last paragraph, and the last footnote in Part

III–B. I do not join the remainder of Part III–B.

I agree with the Court that neither intent to defraud a

bank nor exposure of a bank to a risk of loss is an element

of the crime codified in 18 U. S. C. §1344(2). But I am

dubitante on the point that one obtains bank property “by

means of ” a fraudulent statement only if that statement is

“the mechanism naturally inducing a bank (or custodian of

bank property) to part with money in its control,” ante, at

12. The Government suggested that test, but only briefly

claimed it was to be found in the “by means of ” language,

Brief for United States 40–41—so briefly that Loughrin

responded that “[t]he Government does not claim any

textual basis for this [naturally inducing] rule,” Reply

Brief 13. We have heard scant argument (nothing but the

Government’s bare-bones assertion) in favor of the “by

means of ” textual limitation, and no adversary presenta-

tion whatever opposing it. The Court’s opinion raises the

subject in order to reply to Loughrin’s argument that,

unless we adopt his proposed nontextual limitations, all

frauds effected by receipt of a check will become federal

crimes. It seems to me enough to say that Loughrin’s

solutions to the problem of the statute’s sweep are, for the

2 LOUGHRIN v. UNITED STATES

Opinion of SCALIA, J.

reasons well explained by the Court’s opinion, not correct.

What the proper solution may be should in my view be left

for another day. I discuss below my difficulties with the

“by means of ” solution.

Recall the Court’s hypothetical garden-variety con. “A

fraudster [makes a statement] pass[ing] off a cheap knock-

off as a Louis Vuitton handbag. The victim pays for the

bag with a good check, which the criminal cashes.” Ante,

at 10. The fraudster unquestionably has obtained bank

property. But how? By presenting the check to a bank

teller, yes. But also by duping the buyer. Yet according to

the Court, the fraudster’s deceit was not a “means” of

obtaining the cash, because tricking a buyer into swapping

a check for a counterfeit carryall is not a “mechanism

naturally inducing a bank . . . to part with money in its

control.” Ante, at 12. The bank’s involvement, it says, is

mere happenstance.

I do not know where the Court’s crabbed definition of

“means” comes from. Certainly not the dictionary entries

that it quotes. Quite the contrary, those suggest that the

handbag fraudster’s deceitful statement was a “means”:

Undoubtedly, the trickery was a “ ‘method, or course of

action, by the employment of which [bank property was]

attained.’ ” Ante, at 11. Though the dictionaries do not

appear to add that the connection between “means” and

end must be “something more than oblique, indirect, and

incidental,” ibid., I agree that, in common usage, not every

but-for cause of an act is a cause “by means of ” which the

act has occurred. No one would say, for example, that the

handbag fraudster obtained bank property by means of his

ancestors’ emigration to the United States. But all would

say, I think, that he obtained the property by means of the

lie. His deceit is far from merely incidental to, or an

oblique or indirect way of, obtaining the money. That was

the lie’s very purpose.

That the fraudster likely was indifferent to the victim’s

Cite as: 573 U. S. ____ (2014) 3

Opinion of SCALIA, J.

method of payment—making his receipt of bank money

instead of straight cash merely “fortuitous,” ante, at 13—

does not suggest, in ordinary parlance, that the fraud was

not a means of acquiring bank property. Indeed, saying

that indifference is disqualifying comes close to requiring

the intent to defraud a bank that the Court properly re-

jects. In any case, indifference certainly does not cause

what is a means not to be a means. Suppose I resolve to

purchase (with the two dollars in my billfold) a coffee at

the first convenience store I pass on my way to work. I am

indifferent to what store that might be. I catch sight of a

7-Eleven, pull in, and, with my cash, buy the drink. That

it is a 7-Eleven coffee rather than a Sheetz coffee is “wholly

fortuitous,” ibid. Still, no one would say that I had not

obtained 7-Eleven coffee by means of my two dollars. So

too with the handbag swindler: Regardless of whether the

cash is the victim’s or, technically, the bank’s, and regard-

less of whether the swindler cared which it was, would we

not say that the fraudster has obtained it by means of the

trick?

The majority responds that the measure of “means” is

not indifference or the absence of fortuity but rather di-

rectness. And not just proximate-cause-like directness—

the fraudulent statement literally must “reach the bank,”

ante, at 14, n. 8. Once again, it seems to me the Court’s

definition does not accord with common usage. Suppose

little Bobby falsely tells his mother that he got an A on his

weekly spelling test and so deserves an extra cookie after

dinner. Mother will not be home for dinner, but she leaves

a note for Father: “Bobby gets an extra cookie after dinner

tonight.” (Much like the handbag buyer’s note to the

bank: “Pay $2,000 to the order of Mr. Handbag Fraud-

ster.”) Dinner wraps up, and Bobby gets his second cookie.

Has he obtained it by means of the fib to his mother?

Plainly yes, an ordinary English speaker would say. But

plainly no under the Court’s definition, since the lie did

4 LOUGHRIN v. UNITED STATES

Opinion of SCALIA, J.

not make its way to the father.

The Court’s chief illustration of its “by means of ” gloss

seems to me contrived. If “Jane traded in her car for

money to take a bike trip cross-country, no one would say

she ‘crossed the Rockies by means of a car.’ ” Ante, at 12.

Of course. By using two vehicles of conveyance, and de-

scribing the end in question as “crossing the Rockies,” the

statement that the car was the “means” of achieving that

end invites one to think that Jane traveled by automobile.

But the proper question—the one parallel to the question

whether the fraudster obtained bank funds by means of

fraudulently selling the counterfeit—is not whether Jane

crossed the Rockies by means of the car, but whether she

funded her trip by means of selling the car. Which she

assuredly did. Just as the handbag swindler, in the Louis

Vuitton example, obtained money by means of his false

representation.

I certainly agree that this statute must be interpreted, if

possible, in a manner that will not make every fraud

effected by receipt of a check a federal offense. But decid-

ing this case does not require us to identify that manner,

and I would leave that for another case.

Cite as: 573 U. S. ____ (2014) 1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 13–316

_________________

KEVIN LOUGHRIN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 23, 2014]

JUSTICE ALITO, concurring in part and concurring in the

judgment.

I agree with the Court’s holding that 18 U. S. C.

§1344(2) requires neither intent to defraud a bank nor the

creation of a risk of financial loss to a bank, but I must

write separately to express disagreement with some dicta

in the opinion of the Court.

In a few passages, the Court suggests that §1344(2)

requires a mens rea of purpose. See ante, at 4 (“[T]he

clause requires that the defendant intend ‘to obtain any of

the moneys . . . or other property owned by, or under the

custody or control of, a financial institution’ ” (ellipsis in

original)); ante, at 12, n. 6 (“[W]hen the defendant has the

requisite intent to acquire bank property, his presentation

of a forged or altered check to a third party satisfies

§1344(2)’s ‘means’ requirement”).* That is incorrect.

Congress expressly denoted the mens rea a defendant

must have to violate §1344(2), and it is not purpose.

Instead, §1344(2) imposes liability on “[w]hoever knowingly

executes, or attempts to execute, a scheme or artifice” to

obtain bank property. (Emphasis added.) It is hard to

imagine how Congress could have been clearer as to the

mental state required for liability.

——————

* Cf. ante, at 5 (§1344(1) “includes the requirement that a defendant

intend to ‘defraud a financial institution’ ”).

2 LOUGHRIN v. UNITED STATES

Opinion of ALITO, J.

The Court’s contrary statements apparently derive from

the fact that the criminal venture that a defendant must

knowingly execute or attempt to execute must be a scheme

or artifice “to obtain . . . property owned by . . . a financial

institution.” §1344(2). A defendant must have the pur-

pose to obtain bank property, so the argument goes, be-

cause he must execute a scheme the purpose of which is to

obtain bank property.

This argument confuses the design of the scheme with

the mens rea of the defendant. The statute requires only

that the objective of the scheme must be the obtaining of

bank property, not that the defendant must have such an

objective. Of course, in many cases a scheme’s objective

will be the same as an individual defendant’s. Where the

defendant acts alone, for instance, his objective will almost

certainly be the same as that of the scheme, and the in-

quiry into the defendant’s mens rea and the scheme’s

objective will accordingly merge. But in some cases, such

as those involving large, complex criminal ventures, a

given defendant’s purpose may diverge from the scheme’s

objective. For instance, a defendant who is paid by a large

ring of check forgers to present one of their forged checks

to a bank for payment has executed “a scheme or artifice

. . . to obtain” bank property, even if he only presents the

check because he is paid to do so and personally does not

care whether the forged check is honored. That is because

the objective of the scheme as a whole is to obtain bank

property, and the defendant knowingly executes that

scheme.

The majority reads the word “knowingly” out of the

statute. That term “ ‘requires proof of knowledge of the

facts that constitute the offense.’ ” Dixon v. United States,

548 U. S. 1, 5 (2006). If the majority is correct that the

language “a scheme or artifice . . . to obtain” bank property

demands that the defendant intend to obtain bank prop-

erty, then the word “knowingly” is superfluous, because a

Cite as: 573 U. S. ____ (2014) 3

Opinion of ALITO, J.

defendant whose purpose is to obtain bank property will

always know that his purpose is to obtain bank property.

Why would Congress expressly specify a lesser mens rea

element if elsewhere in the statute it commands a greater,

subsuming one?

Proof that a defendant acted knowingly very often gives

rise to a reasonable inference that the defendant also

acted purposely, and therefore the Court’s dicta may not

have much practical effect. But if the issue is presented in

a future case, the Court’s statements must be regarded as

dicta. The Court’s statements that a defendant must

intend to obtain bank property to be convicted under

§1344(2) are unnecessary to its conclusion that a defend-

ant may be convicted under this provision without proof

that he either intended to defraud a bank or created a risk

of loss to a bank. Furthermore, as the Court makes clear,

petitioner waived any challenge to his conviction arising

from an asserted statutory requirement that he must have

intended to obtain bank property. See ante, at 4, n. 3.