US v. Ishmail Bah

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00153-JRS-1. Copies to all parties and the district court. [999463686]. [14-4066]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4066

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISHMAIL BAH, a/k/a Idrisss Gabiss Mansaray,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:13-cr-00153-JRS-1)

Submitted:

September 15, 2014

Before MOTZ and
Circuit Judge.

GREGORY,

Circuit

Decided:

Judges,

October 28, 2014

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Elizabeth W. Hanes, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant.
Dana J. Boente, United
States Attorney, Michael C. Moore, Assistant United States
Attorney, Ann M. Reardon, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ishmail Bah pleaded guilty to bank fraud, in violation
of 18 U.S.C. § 1344 (2012), as charged in Count One of a sixcount indictment.

The district court sentenced him to eighteen

months’ imprisonment.
his guilty plea.

Bah appeals, challenging the validity of

For the reasons that follow, we affirm the

criminal judgment.
Bah’s sole claim on appeal is that his guilty plea was
not knowing and voluntary because the district court failed to
explain the nature of the bank fraud offense to which he pled
guilty, as required by Rule 11(b)(1)(G) of the Federal Rules of
Criminal Procedure.

Because he did not move in the district

court to withdraw his guilty plea, we review Bah’s claim for
plain error.
Cir. 2002).

United States v. Martinez, 277 F.3d 517, 525 (4th
“To establish plain error, [Bah] must show that an

error occurred, that the error was plain, and that the error
affected his substantial rights.”
478 F.3d 247, 249 (4th Cir. 2007).

United States v. Muhammad,
“In the Rule 11 context,

this means that [Bah] must show a reasonable probability that,
but for the error, he would not have entered the plea.”
States

v.

Massenburg,

564

F.3d

337,

343

(4th

(internal quotation marks and citation omitted).

Cir.

United
2009)

Even if Bah

satisfies these requirements, “correction of the error remains
within our discretion, which we should not exercise . . . unless
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the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.”

Muhammad, 478 F.3d at 249

(internal quotation marks and citation omitted).
“In
defendant

.

explaining
.

.

the

the

trial

nature
court

of

is

the

given

charges
a

wide

to

degree

the
of

discretion in deciding the best method to inform and ensure the
defendant’s understanding.”
114,

117

(4th

Cir.

United States v. DeFusco, 949 F.2d

1991)

(citation

omitted).

Moreover,

“[a]lthough the defendant must receive notice of the true nature
of the charge, . . . [he] need not receive this information at
the

plea

hearing

itself

.

.

.

[and

may

base

the

plea

on]

information received on occasions before the plea hearing.”

Id.

(internal quotation marks and citations omitted).
Here, Bah pled guilty to bank fraud in violation of 18
U.S.C. § 1344, which prohibits the knowing execution or attempt
to execute a scheme or artifice:
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by, or
under
the
custody
or
control
of,
a
financial
institution,
by
means
of
false
or
fraudulent
pretenses, representations, or promises.
18 U.S.C. § 1344.

A defendant violates § 1344(1) if he “(1)

. . . knowingly execute[s] or attempt[s] a scheme or artifice to
defraud a financial institution, (2) he [does] so with intent to
defraud, and (3) the institution [is] a federally insured or
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chartered bank.”

United States v. Adepoju, 756 F.3d 250, 255

(4th Cir. 2014).

A defendant who knowingly executes or attempts

a scheme or artifice “‘to obtain any of the moneys . . . or
other property owned by, or under the custody or control of, a
[federally

insured

does

“‘by

so

or

means

chartered]
of

financial

false

or

institution,’”

fraudulent

representations or promises,’” violates § 1344(2).

and

pretenses,
Loughrin v.

United States, 134 S. Ct. 2384, 2389 (2014) (quoting § 1344).
“The major difference between the subsections is that § 1344(1)
focuses on how the defendant’s conduct affects a bank, while
§ 1344(2) focuses solely on the conduct.”
255.

Adepoju, 756 F.3d at

Unlike § 1344(1), intent to defraud a bank is not an

element of a § 1344(2) offense.

Loughrin, 134 S. Ct. at 2389-

90.
Count One of the indictment, in charging that Bah:
did knowingly, unlawfully, and with intent to defraud,
execute and attempt to execute a scheme and artifice
to defraud and obtain money, funds, and property owned
by and under the custody and control of financial
institutions (as that term is defined in Title 18,
United States Code, Section 20) by means of materially
false and fraudulent pretenses and promises[,]
set forth the elements of both § 1344(1) and § 1344(2).

Bah

acknowledged at the Rule 11 hearing that he received a copy of
the indictment, discussed the charges with his attorney, and
understood the charges against him.

Furthermore, although the

plea agreement does not include a description of the nature of
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the charges or the elements of the offense, the Statement of
Facts, referenced in the plea agreement, stipulated that the
allegations in Count One of the indictment were true.

During

the Rule 11 hearing, the court asked, “Do you mean by placing
your signature on the Statement of Facts not only that you have
read it and understood it, but also, that to the best of your
knowledge, the information contained in the Statement of Facts
is true and accurate; is that correct?”

Bah answered, “Yes.”

We conclude that, through the colloquy at the Rule 11 hearing,
the district court ensured that Bah was informed of the nature
of the charges prior to the plea hearing and, in doing so,
satisfied

the

requirements

of

Rule

11(b)(1)(G).

Cf.

United

States v. Wilson, 81 F.3d 1300, 1307-08 (4th Cir. 1996) (finding
no error where district court failed to inform defendant of the
elements of the offense, leaving decision to recite elements of
the offense to district court’s discretion).
In

any

event,

substantial rights.

any

omission

did

not

affect

Bah’s

Bah argues that intent to defraud a bank is

an element of the offense under both § 1344(1) and (2).

Had he

understood the nature of the bank fraud offense or its elements,
Bah continues, “he likely would not have entered a guilty plea
and

would

have

gone

to

trial

instead,

given

the

great

difficulties the government faces in proving elements such as
intent and knowledge.”
5

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When Bah filed his brief in May 2014, he did not have
the benefit of the Supreme Court’s decision in Loughrin, where
the Court specifically held that intent to defraud a bank is not
an element of § 1344(2).
Loughrin,

because

the

His argument does not hold up after

broadly

worded

indictment

reflected

intent to prosecute under either § 1344(1) or § 1344(2).

an

Even

if Bah had been charged exclusively with violating § 1344(1), he
had notice of the nature of the offense because Count One of the
indictment, which he acknowledged under oath he discussed with
counsel and understood, charged that Bah engaged in conduct with
“intent to defraud.”

He also stipulated in the Statement of

Facts that, “with intent to defraud . . .[he] executed a scheme
and artifice to defraud a financial institution.”
Finally, we note that, in exchange for his guilty plea
on Count One, the charges on five other counts were dismissed
and Bah received a two-level reduction in his offense level for
acceptance
range.

In

of

responsibility,

light

of

the

thereby

significant

reducing

his

Guidelines

benefit

Bah

gained

by

pleading guilty to a single count in the six-count indictment,
we conclude that there is not a reasonable probability that, if
the court had more explicitly advised him about the nature of
the charge, he would have not have pleaded guilty.
564 F.3d at 343.

6

Massenburg,

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Accordingly, we affirm the judgment of the district
court.
legal

We dispense with oral argument because the facts and
contentions

are

adequately

presented

in

the

materials

before this court and argument would not aid in the decisional
process.
AFFIRMED

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