Bank Fraud · Trial Preparation

What Jury Instructions Are Needed in a Bank Fraud Trial?

The jury needs instructions that fit the bank-fraud charge it is deciding. Counsel must check the elements for each count and preserve objections to the court’s final language.

By Heath Hyde · East Texas and statewide

Mr. Heath Enix ‘Heath’ Hyde
Eligible to Practice in Texas
Attorney at Law
Bar Card Number: 00796807
TX License Date: 11/01/1996

Primary Practice Location: Sulphur Springs, TX and Dallas, TX
214 Connally St Ste A
Sulphur Spgs, TX 75482-2612

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Start with the clause of § 1344 charged in each count. The proposed instructions need to explain what the government must prove under that clause and fit the evidence presented at trial. Counsel should check current Fifth Circuit authority and submit requests under Rule 30 and the court’s scheduling order. A general instruction on fraud may leave a disputed element unresolved.

Keep the two statutory clauses distinct

Section 1344 contains two clauses with different requirements. In Loughrin, the Supreme Court held that under clause (2), an intent to defraud the bank itself is not an additional element. The government still has to connect the false means to obtaining bank property. The fact that a bank handled money somewhere in a transaction does not answer that question.

Shaw concerns clause (1). A customer’s interest in deposited funds does not eliminate the bank’s property rights in those funds. The decision also explains why the absence of an ultimate financial loss to the bank is not enough to defeat the charge.

Read the proposed language against the indictment.

Identify the act charged in each count

Suppose the evidence includes a certificate sent in March, a loan draw in April and a transfer later that year. Before drafting the charge, counsel needs to identify which alleged execution supports each count. The events may belong to one history without being interchangeable. A working chart can help expose a mismatch between the indictment, the evidence and the proposed instructions.

There can be a further question if the government offers several acts or misrepresentations to support a single count. Research whether the jury needs a specific unanimity instruction for that theory. Asking for a special verdict form is a different request, which must be assessed under the governing law. The aim is a legally correct charge, not a form that makes jurors explain all of their reasoning. A separate laundering allegation or an unrelated default cannot take the place of proof of the bank-fraud count.

Check the final wording and make the objection

“We disagree with the charge” does not explain the problem. Counsel needs to identify the disputed instruction or missing language and state the legal ground for the objection. Rule 30 requires that objection before the jury retires to deliberate. Keep the defense’s written request and the court’s ruling in the trial record, and check what the judge will actually tell the jury. An earlier submission may not cover a problem in the final version.

Hypothetical: Count 2 charges the April loan draw, a $250,000 advance on April 12. At closing, counsel can take that count alone and work through the court’s instructions with the jury. Which property is involved? What deception does the government allege, and what did the accused know on April 12? The exhibits and testimony should supply the answers, or reveal a missing element.

Address those facts within the charge, rather than treating either as a complete answer.