Weekly Case Digests — Dec. 12-16, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Gillian Berger, et al v. National Collegiate Athletic Association, et al

Case No.: 16-1558

Officials: KANNE, SYKES, and HAMILTON, Circuit Judges

Focus: FLSA – Student Athletes

Former student athletes at the University of Pennsylvania (“Penn”) sued Penn, the National Collegiate Athletic Association (“NCAA”), and more than 120 other NCAA Division I universities and colleges alleging that student athletes are employees who are entitled to a minimum wage under the Fair Labor Standards Act (“FLSA”). The district court disagreed. We agree with the district court and hold that student athletes are not employees and are not covered by the FLSA.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Kristopher Warren

Case No.: 16-1492

Officials: POSNER, FLAUM, and MANION, Circuit Judges.

Focus: Sentencing – Conditions of Release

Kristopher Warren pled guilty to transporting and possessing child pornography and was sentenced to five years’ imprisonment and fifteen years’ super‐ vised release. The district court entered an order modifying Warren’s conditions of release pursuant to 18 U.S.C. § 3583(e). Warren challenged three of the conditions, and the district court dismissed his objections. We affirm

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Derek Ortiz

Case No.: 16-2373

Officials: POSNER, KANNE, and ROVNER, Circuit Judges.

Focus: Sentencing – Supervised Release

The appellant, Derek Ortiz, had been sentenced to prison for 135 months for three bank robberies. His appeals did not challenge his prison sentence, but only the conditions of supervised release imposed by the district judge. We twice reversed the judge’s supervised-released rulings and remanded for full resentencing. On the second remand the judge reimposed the 135-month prison sentence but altered the conditions of supervised release. Ortiz has again appealed, challenging four of the altered conditions: the condition permitting a probation office to visit the defendant “at any reasonable time” at home or “any reasonable location” specified by the probation officer; the condition requiring Ortiz to report “any significant change” in his economic circumstances; the condition requiring him to report to the probation officer “in the manner and frequency” directed by the officer; and the condition requiring him to participate in a substance abuse, an alcohol treatment, and a mental health treatment program approved by the probation officer and to “abide by the rules and regulations of [each] program.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Benton County Wind Farm, LLC v. Duke Energy Indiana, Inc.,

Case No.: 15-2632

Officials: POSNER, FLAUM, and EASTERBROOK, Circuit Judges.

Focus: Contract Interpretation – Damages Clause

“In this litigation Duke takes the position that, when MISO tells Benton to stop delivering power, it does not owe Benton anything. Benton takes the position that Duke could put Benton’s power on the grid by making a lower bid (MISO accepts bids as low as negative $500 per MWh), thereby displacing other producers’ power, and that when Duke elects not to do this it owes liquidated damages under the contract. Sometimes for load-balancing or other technical reasons MISO tells Benton to stop delivering power even when the market price exceeds zero and Duke’s bid nominally has been accepted. Benton acknowledges that in this situation Duke need not pay damages.”

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Marcus Harris

Case No.: 16-1023

Officials: FLAUM and KANNE, Circuit Judges, and MAGNUS‐ STINSON, District Judge.*

Focus: Sentencing Guidelines – Procedural Error

Marcus Harris commit‐ ted three armed robberies in 2013, two in Indiana and one in Illinois. He was arrested and charged in state court for one of the Indiana robberies. While the Indiana case was pending, federal authorities sent Harris a target letter concerning the Illinois robbery. Harris requested and was appointed a federal public defender, but his federal public defender failed to ad‐ vise Harris or his state defense attorney of the progress of the federal proceedings before his guilty plea and sentencing in Indiana state court. He was later charged by federal indictment and pled guilty in federal court to the Illinois robbery, and stipulated to the uncharged Indiana robbery as relevant offense conduct. At his federal sentencing, the parties agreed that Harris’ federal public defender’s failure to update him about the federal proceedings prejudiced Harris because had he not been convicted in state court, and had all of the robberies been charged in one federal proceeding, his sentencing guideline range in his federal court case would have been lower. The parties agreed to a hypothetical guideline range to compensate for the federal public defender’s error. Harris claims that the district court committed procedural error when it failed to accept the hypothetical guideline range or to explain why it rejected it. We disagree and affirm his sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Walter Freeman

Case No.: 15-3664

Officials: RIPPLE, ROVNER, and SYKES, Circuit Judges.

Focus: Plea Agreement – Sentencing Guidelines

On September 6, 2012, the defendant Walter Freeman was charged in a five-count indictment: in Counts 1 and 2, with distribution of 28 grams or more of a mixture containing cocaine base in violation of 21 U.S.C. § 841(a)(1); in Count 3, with possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1); in Count 4, with distribution of marijuana in violation of 21 U.S.C. § 841(a)(1); and in Count 5 with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Freeman pled guilty to Counts 1 and 5. In an addendum to the plea agreement, Freeman also stipulated to the commission of a third offense, possession of a firearm after being convicted of a felony, which had been the basis of a different indictment. The facts underlying those charges are not relevant to the issues on appeal; in brief, the record indicated that Freeman distributed approximately 28 grams of crack cocaine and traded marijuana for four firearms. Freeman admitted that he had been selling crack cocaine to a small group of customers since at least 1999 and bought and sold 80 firearms – 40 between 1999 and 2001 to a high ranking member of the Gangster Disciples and 40 in a 2-month period from October 2010 to December 2010 to a different Gangster Disciples member, although only the latter 40 were included for purposes of relevant conduct. The district court calculated the guidelines range as 140 to 175 months on Count 1 and the stipulatedcount, and 60 months’ consecutive imprisonment on Count 5. After considering the factors under 18 U.S.C. § 3553(a), the court imposed a sentence below the guidelines range, sentencing Freeman to 132 months’ imprisonment on Count 1 and the stipulated offense, and a 60 months’ consecutive sentence on Count 5.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Sherry Katz-Crank v. Kimberly Haskett

Case No.: 15-1809

Officials: POSNER, RIPPLE, and SYKES, Circuit Judges.

Focus: 11^th Amendment – Failure to state a claim

Sherry Katz‐Crank is a Michigan lawyer with a practice in cemetery management. An un‐ scrupulous client used her services in the course of defrauding cemetery trust funds of $22 million. When Katz‐Crank discovered the fraud, she promptly contacted state regulatory authorities. The client was indicted on embezzlement charges. Katz‐Crank was charged as an aider and abettor, though a jury would ultimately acquit her. Her reputation disgraced and her law practice in shambles, Katz‐Crank sued the state and county officials who were in any way involved in the prosecution. She alleged that they conspired to violate her federal constitutional rights; she raised several state‐law claims as well. The district judge entered judgment on the pleadings in the defendants’ favor on some claims and dismissed others for failure to state a claim. We affirm. Most of Katz‐Crank’s claims are barred by the Eleventh Amendment or prosecutorial immunity. The balance of the complaint was properly dismissed for failure to state a plausible claim for relief.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Nalco Company v. Davit T. Chen et al

Case No.: 16-2902

Officials: EASTERBROOK and ROVNER, Circuit Judges, and SHADID, District Judge

Focus: Joint Venture – Loan Guaranty – Permissive v. Compulsory Counter Claims

Nalco and David Chen conducted a joint venture to sell environmental equipment in China. Nalco owned 55% of the venture, Chen 40%, and a third party 5%. When the joint venture (Nalco Mobotec Environmental Protection Technology (Shanghai) Co., or NMEPT) encountered business problems, Nalco guaranteed a loan, which NMEPT was unable to cover. Nalco paid the creditor and sued Chen (under the diversity jurisdiction) for his 40% share of the outlay. The district court entered judgment in Nalco’s favor for more than $2 million. 2014 U.S. Dist. LEXIS 76207 (N.D. Ill. June 4, 2014). Chen filed counterclaims against both Nalco and a subsidiary, Nalco Mobotec, Inc. (NMI), through which Nalco had made its investment in the joint venture. Chen contended that NMI had violated his rights under the agreement by causing the joint venture to borrow $300,000 without his approval, even though the agreement required all investors’ consent for borrowing money. When the joint venture did not repay this loan, the creditor petitioned it into bankruptcy under Chinese law—another violation of the agreement, Chen maintained. As Chen described things, the lender was doing Nalco’s bidding in an effort to get around a clause of the agreement requiring the three investors’ unanimous consent for bankruptcy proceedings. Nalco wanted to wind up the unprofitable venture, but Chen preferred to keep it alive (if dormant) in order to protect its intellectual property. Chen’s counterclaim included 12 counts under the laws of both China and Illinois. The district court granted summary judgment against Chen on 11 of the 12, see 2015 U.S. Dist. LEXIS 68095 (N.D. Ill. 2015), and he soon abandoned the twelfth. At this point the suit was over, but no one appealed. Chen is not reconciled to his loss, however, and filed a new suit, this time in China. He named as the defendant Mobotec LLC (Mobotec). Contending that Chen was attempting to relitigate claims already resolved in this nation, Nalco asked the district court to enjoin him from pursuing the Chinese litigation. The court issued an anti-suit injunction, 2016 U.S. Dist. LEXIS 75698 (N.D. Ill. June 10, 2016), and this time Chen appealed.

Affirmed

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7^th Circuit Court of Appeals

Case Name: David Cohan et al v. Medline Industries, Inc. et al

Case No.: 16-1850

Officials: FLAUM and KANNE, Circuit Judges, and MAGNUSSTINSON, District Judge.

Focus: Class Action – Wage Payment

Plaintiffs David Cohan and Susan Schardt filed this putative class action suit against their former employers, Medline Industries, Inc., and MedCal Sales LLC (collectively, “Medline”), alleging violations of the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. § 115/1 et seq. (“IWPCA”), and other state wage payment statutes, including the New York Labor Law and California Labor Code, on behalf of the class. Cohan and Schardt claimed that Medline’s practice of accounting for year-to-year sales declines in calculating and paying commissions was impermissible under the terms of their employment agreements and state wage laws. The district court granted Medline’s motion for summary judgment, finding that plaintiffs had not performed enough work in Illinois for the IWPCA to apply and that Medline and the plaintiffs had agreed to Medline’s method of calculating commissions, so there was no violation of state wage laws. Cohan and Schardt appealed the dismissal of their claims under New York and California law. We affirm

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. David Lewisbey

Case No.: 14-2236

Officials: POSNER, RIPPLE, and SYKES, Circuit Judges.

Focus: Daubert Test – Admission of Evidence

David Lewisbey was a Chicagobased gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows and bring them back to Illinois to sell. He came to the attention of law enforcement when he bragged about his gunrunning exploits on Facebook. Federal agents set up a sting, and Lewisbey was arrested and charged with multiple counts of unlawfully transporting and dealing firearms. A jury convicted him on all counts. Lewisbey now argues that his attorney was operating under a conflict of interest in violation of his Sixth Amendment right to conflict-free counsel. He also challenges the admission of incriminating text-message and Facebook evidence at trial. Finally, he claims that the testimony of the government’s cell-phone location expert did not satisfy the requirements of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We reject these arguments and affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Steven K. Howell v. Polk County Sheriff’s Department

Case No.: 2015AP616

Officials: Hruz, J.

Focus: Negligence – Small Claims

Steven Howell, pro se, appeals a summary judgment entered in favor of the Polk County Sheriff’s Department in a small claims negligence action. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Anton R. Dorsey

Case No.: 2015AP648-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Admission of Evidence – Other-Acts Evidence

Anton Dorsey appeals a judgment of conviction for one count of misdemeanor battery, one count of disorderly conduct, and one count of aggravated battery, with the latter two counts having been charged as acts of domestic abuse, pursuant to WIS. STAT. § 973.055(1). The jury acquitted Dorsey of a charge of strangulation and suffocation. Dorsey’s sole challenge on appeal is the circuit court’s admission of certain other-acts evidence. This issue requires us to address recent legislative changes in WIS. STAT. § 904.04(2)(b)1. Because we hold the circuit court properly admitted the other-acts evidence, we affirm the judgment of conviction.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Cedric Hayes, Sr.

Case No.: 2015AP1357-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Ineffective Assistance of Counsel – Court Error

Cedric Hayes, Sr., appeals a judgment convicting him of one count of repeated sexual assault of a child. He also appeals orders denying his motions for postconviction relief and for reconsideration. He claims his trial counsel was ineffective in multiple ways and that the circuit court erroneously denied him a hearing on his allegations. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. David C. Taylor

Case No.: 2015AP1931-CR; 2015AP1932-CR; 2015AP1933-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Plea Agreement – Ineffective Assistance of Counsel

David Taylor appeals judgments convicting him of eleven felonies and an order denying his postconviction motion for resentencing. Taylor argues that the prosecutor’s sentencing recommendation breached the parties’ plea agreement and that his trial counsel was ineffective for failing to object to the breach. We conclude the prosecutor’s recommendation did not breach the plea agreement and, therefore, we affirm.

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WI Court of Appeals – District III

Case Name: Jeremy Chell v. Laurie Ann Chell

Case No.: 2015AP2284

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Spousal Maintenance – Divorce

Jeremy Chell appeals the spousal maintenance portion of a judgment dissolving his marriage to Laurie Chell. Jeremy argues the circuit court erroneously exercised its discretion when determining the duration and amount of maintenance payments. We reject Jeremy’s arguments and affirm the judgment.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Travis J. Manteuffel

Case No.: 2016AP96-CR

Officials: Stark, P.J.

Focus: DNA Surcharge – Due Process

Travis Manteuffel appeals the imposition of a $200 deoxyribonucleic acid (DNA) surcharge on his conviction for misdemeanor disorderly conduct and an order denying his postconviction motion to vacate that surcharge. He argues the surcharge, as applied to him, violates his substantive due process rights. Because Manteuffel fails to prove beyond a reasonable doubt that the statute is unconstitutional as applied to him, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Terry S. Shannon

Case No.: 2015AP922

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Imperfect Self Defense – Jury Instructions

Terry S. Shannon was convicted by a jury in 2009 of first-degree intentional homicide and discharging a firearm from a vehicle, both as party to a crime, and sentenced to life in prison. We affirmed on Shannon’s direct appeal. Shannon seeks to have his conviction declared “unlawful” on grounds that the jury did not consider the affirmative defense of unnecessary defensive force (imperfect self-defense) under WIS. STAT. § 940.01(2)(b) (2013-14).  Shannon, with advice of counsel, made a reasonable strategic decision to go “allor-nothing” on first-degree intentional homicide with an assertion of perfect selfdefense, and the court correctly instructed the jury on WIS JI—CRIMINAL 805. Shannon’s trial and postconviction counsel were not deficient. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Joshua P. Braithwaite

Case No.: 2016AP80-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Court Error – Denial of Mistrial

A jury found Joshua P. Braithwaite guilty of the murder, sexual assault, and kidnapping of 20-year-old L.Z. Braithwaite appeals his conviction on the grounds that the trial court erroneously exercised its discretion when it denied his motion for a mistrial after Braithwaite’s probation agent revealed to the jury Braithwaite’s prior adjudication for a sexual offense. As we conclude that the trial court properly exercised its discretion in denying Braithwaite a mistrial, we affirm

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Demetrius L. Cooper

Case No.: 2014AP2970-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Focus: Plea Withdrawal

Demetrius Cooper appeals the circuit court’s judgment convicting him of two counts of delivering heroin as a party to the crime. Cooper also appeals the court’s order denying his motion for postconviction relief. Cooper argues that he is entitled to plea withdrawal because

the prosecution violated a legal obligation to disclose information. For the reasons below, we affirm.

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WI Court of Appeals – District I

Case Name: Metropolitan Associates v. City of Milwaukee

Case No.: 2016AP21

Officials: Kloppenburg, P.J, Sherman, and Blanchard, JJ.

Focus: Property Tax Assessments

Metropolitan Associates appeals a circuit court decision upholding the City of Milwaukee’s property tax assessments for the 2008-2011 tax years for property owned by Metropolitan. Metropolitan argues that the circuit court erred in concluding that Metropolitan failed to rebut the

statutory presumption of correctness to which the City’s assessments are entitled. Specifically, Metropolitan argues that it rebutted the presumption of correctness because: (1) the City’s initial assessments were invalid as a matter of law; (2) the City’s subsequent single-property assessments, which the City used to evaluate the initial assessments, relied on property valuation techniques that were contrary to Wisconsin property tax assessment law; and (3) the circuit court erred in finding that the valuation opinions of Metropolitan’s appraiser were not reliable and did not constitute “significant evidence” that the City’s initial assessments were incorrect.1 For the reasons discussed below, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.W.

Case No.: 2016AP121; 2016AP122; 2016AP123; 2016AP124; 2016AP125

Officials: Kloppenburg, P.J.

Focus: Termination of Parental Rights

A.W. appeals the circuit court orders terminating her parental rights to her children R.W., A.R.W. N.W-F., R.R.W., and S.W, and the circuit court order denying her motion for post-disposition relief. A.W. argues that: (1) her trial counsel was ineffective in allegedly advising her to withdraw the motion that her counsel had filed to vacate the court’s default finding at the grounds phase of the proceeding; and (2) the circuit court erroneously exercised its discretion in not vacating the default finding so that she could refute the “perjury” and false information provided throughout the proceeding. For the reasons stated below, I affirm.

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US Supreme Court Digests

US Supreme Court

Case Name: State Farm Fire & Casualty Co. v. United States Ex Rel. Rigsby et al.

Case No.: 15-513

Focus: False Claims Act

A seal violation does not mandate dismissal of a relator’s complaint.

Petitioner moved to dismiss the suit on the grounds that respondents had violated the seal requirement. Specifically, it alleged, respondents’ former attorney had disclosed the complaint’s existence to several news outlets, which issued stories about the fraud allegations, but did not mention the existence of the FCA complaint; and respondents had met with a Congressman who later spoke out against the purported fraud. The District Court applied the test for dismissal set out in United States ex rel. Lujan v. Hughes Aircraft Co., 67 F. 3d 242, 245–247. Balancing three factors—actual harm to the Government, severity of the violations, and evidence of bad faith—the court decided against dismissal. Petitioner did not request a lesser sanction. The Fifth Circuit affirmed. It first concluded that a seal violation does not require mandatory dismissal of a relator’s complaint. It then considered the same factors weighed by the District Court and reached a similar conclusion.

The FCA does not enact so harsh a rule. Section 3730(b)(2)’s requirement that a complaint “shall” be kept under seal is a mandatory rule for relators. But the statute says nothing about the remedy for violating that rule; and absent congressional guidance regarding a remedy, “the sanction for breach [of a mandatory duty] is not loss of all later powers to act.” United States v. Montalvo-Murillo, 495 U. S. 711, 718. The FCA’s structure supports this result. The FCA has a number of provisions requiring, in express terms, the dismissal of a relator’s action. E.g., §§3730(b)(5), (e)(1)–(2). It is thus proper to infer that Congress did not intend to require dismissal for a violation of the seal requirement. See Marx v. General Revenue Corp., 568 U. S. ___, ___. This result is also consistent with the general purpose of §3730(b)(2), which was enacted as part of a set of reforms meant to “encourage more private enforcement suits,” S. Rep. No. 99–345, pp. 23–24, and which was intended to protect the Government’s interests, allaying its concern that a relator filing a civil complaint would alert defendants to a pending federal criminal investigation. It would thus make little sense to adopt a rigid interpretation that prejudices the Government by depriving it of needed assistance from private parties.

Affirmed

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US Supreme Court

Case Name: Salman v. United States

Case No.: 15-628

Focus: Insider Trading – Securities Exchange Act of 1934

The Ninth Circuit properly applied Dirks to affirm Salman’s conviction. Under Dirks, the jury could infer that the tipper here personally benefited from making a gift of confidential information to a trading relative.

“Petitioner Salman was indicted for federal securities-fraud crimes for trading on inside information he received from a friend and relative-by-marriage, Michael Kara, who, in turn, received the information from his brother, Maher Kara, a former investment banker at Citigroup. Maher testified at Salman’s trial that he shared inside information with his brother Michael to benefit him and expected him to trade on it, and Michael testified to sharing that information with Salman, who knew that it was from Maher. Salman was convicted. While Salman’s appeal to the Ninth Circuit was pending, the Second Circuit decided that Dirks does not permit a factfinder to infer a personal benefit to the tipper from a gift of confidential information to a trading relative or friend, unless there is “proof of a meaningfully close personal relationship” between tipper and tippee “that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” United States v. Newman, 773 F. 3d 438, 452, cert. denied, 577 U. S. ___. The Ninth Circuit declined to follow Newman so far, holding that Dirks allowed Salman’s jury to infer that the tipper breached a duty because he made “ ‘a gift of confidential information to a trading relative.’ ” 792 F. 3d 1087, 1092 (quoting Dirks, 463 U. S., at 664).”

Affirmed

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US Supreme Court

Case Name: Samsung Electronics Co., Ltd., et al v. Apple Inc.

Case No.: 15-777

Focus: Patent Act – Articles of Manufacture

In the case of a multicomponent product, the relevant “article of manufacture” for arriving at a §289 damages award need not be the end product sold to the consumer but may be only a component of that product.

“The statutory text resolves the issue here. An “article of manufacture,” which is simply a thing made by hand or machine, encompasses both a product sold to a consumer and a component of that product. This reading is consistent with §171(a) of the Patent Act, which makes certain “design[s] for an article of manufacture” eligible for design patent protection, and which has been understood by the Patent Office and the courts to permit a design patent that extends to

only a component of a multicomponent product, see, e.g., Ex parte Adams, 84 Off. Gaz. Pat. Office 311; Application of Zahn, 617 F. 2d 261, 268 (CCPA). This reading is also consistent with the Court’s reading of the term “manufacture” in §101, which makes “any new and useful . . . manufacture” eligible for utility patent protection. See Diamond v. Chakrabarty, 447 U. S. 303, 308.”

Reversed and Remanded

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US Supreme Court

Case Name: Shaw v. United States

Case No.: 15-5991

Focus: Statutory Coverage – Bank Fraud

Subsection (1) of the bank fraud statute covers schemes to deprive a bank of money in a customer’s deposit account. Shaw’s arguments in favor of his claim that subsection (1) does not apply to him because he intended to cheat only a bank depositor, not a bank, are unpersuasive

“First, the bank did have property rights in Hsu’s bank deposits: When a customer deposits funds, the bank ordinarily becomes the owner of the funds, which the bank has a right to use as a source of loans that help the bank earn profits. Sometimes, the contract between the customer and the bank provides that the customer retains ownership of the funds and the bank only assumes possession; even then, the bank has a property interest in the funds because its role is akin to that of a bailee. Hence, for purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a “financial institution,” at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds.”

Vacated and Remanded

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