Keeping Up With Bank Fraud: SCOTUS Worries About Kardashian Heist

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By Kimberly Strawbridge Robinson

At least one U.S. Supreme Court justice worried during oral argument Oct. 4 that the court’s decision in a bank fraud case would absolve the thief in the recent $10 million dollar jewelry heist of Kim Kardashian ( Shaw v. United States, U.S., No. 15-5991 , argued 10/4/16 ).

But the chance of far-reaching consequences from the case dimmed when the justices discovered that the defendant and federal government mostly agreed on the major issue in the case.

The court granted the case hoping to sort out what a criminal defendant must intend in order to be convicted of bank fraud. Must he intend only to deceive the bank, or must he also intend to cause the bank financial harm?

The case might ultimately come down to an erroneous jury instruction, however.

Narrowing the issues in Supreme Court cases has been a trend at the court since it has been short a justice, as the court reaches for any common ground to avoid evenly split decisions. The high court has been operating with only eight justice since Justice Antonin Scalia passed away unexpectedly Feb. 13.

Of Course?

The case originally centered on what the federal government must prove to show bank fraud under 18 U.S.C. §1344(1).

The federal government appeared to argue in its brief that it needed only to show that the defendant intended to deceive the bank or intended to deprive it of something of value.

But the government’s attorney, Anthony Yang, of the Justice Department, Washington, clarified during oral argument that, “no, no, no, of course” the government had to prove both that the defendant intended to deceive the bank and intended to deprive it of something of value.

“Well, not of course, since that’s [not] what you said” in your brief, Chief Justice John G. Roberts quipped.

Kardashian Thief No Thief At All?

One point of dispute between the defendant and the federal government was whether the defendant had to specifically intend to cause the bank financial harm, or if it was enough that the defendant intended to take money that the bank simply held for the customer.

The defendant here—who used Paypal to defraud a Bank of America customer of more than $300,000—argued that he wasn’t guilty of bank fraud because the bank didn’t actually suffer any financial harm. Only Paypal and the bank’s customer lost money.

Does that mean if the Kardashian jewelry thief thought that the jewelry was insured, and believed that Kardashian herself wouldn’t suffer any financial harm, that he wouldn’t be guilty of theft, Justice Stephen Breyer asked the defendant’s attorney. Kardashian claims that she was robbed Oct. 3 of about $10 million in jewelry at gun point in a Paris apartment.

Although the defendant’s attorney, federal public defender Koren Bell, Los Angeles, argued that an intention to cause financial harm was required to prove bank fraud, it didn’t seem like any of the justices were on board with that idea.

Assuming the court doesn’t agree with you, do you lose this case, both Justices Sonia Sotomayor and Ruth Bader Ginsburg asked Bell.

Bell said no, because the jury instruction here didn’t accurately reflect either the defendant’s or the government’s theory of the law.

Court Searches for Consensus

At that point, the justices turned their focus to the narrower issue of the potentially erroneous jury instruction.

A holding on that basis would have fewer implications for other bank fraud prosecutions.

That narrowing of issues in Supreme Court cases has been common with the current eight-member court.

Some court watchers speculate that the justices don’t want to divide 4-4 in cases, so they search for any common ground that will garner a majority of the court.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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