Whether a bank insider committed bank fraud

QUESTIONS PRESENTED 1. Whether a bank “insider” who acknowledged ; receiving tangible economic benefits from a $151,739.50 bank loan made to his business . associate, committed bank fraud, within the meaning of Title 18 U.S.C. §§1344 and 2, ina ; case where: (a) the borrower (a cooperating government witness) never disclosed to the “insider” that the tangible economic benefits he received to satisfy a capital call obligation in a prior bona fide business relationship came from , a loan made by the “insider’s” bank, and (b) the “insider” played no role in the bank’s lending decision, with respect to the $151,739.50 socalled "nominee" loan charged in Count Ten of the Indictment? ; 2. Whether a bank “insider” who acknowledged . receiving tangible economic benefits from a $750,000 “nominee” bank loan made to his ; business associate, committed bank fraud, within the meaning of 18 U.S.C. §§1344 and 2, as ; a matter of law, in a case where: (a) 12 C.F.R. §215.3(f)(2) provided an express exception to . Regulation O’s $100,000 cap! on loans to the . ' “insider,” who timely and properly invoked his | . right to the §215.3(f(2) exception as an 1 Regulation O, 12 C.F.R.§215.5 ~ ; affirmative defense to the bank fraud charges in Counts Nine and Ten of the Indictment; (b) the borrower timely disclosed the “insider’s” financial interest in the $750,000 loan (charged in Count Nine of the Indictment) to the bank’s | , ’ lending officer, who was also a bank director; (c) no language in §215.3(f)(2) imposed a duty upon ; ; the “insider” to disclose his receipt of tangible ; benefits from the loan; (d) the borrower remitted a portion of the loan proceeds to the “insider” as his capital contribution in a bona fide business transaction in which the borrower acquired property, goods, or services from the “insider” prior to the loan transaction; (e) the bank’s ; lending decision was based solely on the creditworthiness of the borrower; (f) the “insider” did not guarantee the loans; (g) the borrower ‘ bore the sole responsibility for repayment of the loans, with his assets (including his house) ‘ pledged as collateral; (h) the bank viewed the . $750,000 loan as “good,” the bank profited from | the loans, and the loans did not jeopardize in any . way the security and safety of the bank; and (i) ; there was no evidence that the “insider” provided any false information concerning the : ; loans, or asked the borrower to provide false ; information to the bank, or participated in any discussion with bank loan officers and directors . regarding their decision to make the loans, or c— voted to approve or ratify the loans? iii 8. Whether the Court of Appeals erred, as a matter of law, in sustaining a conviction for wire fraud ; conspiracy under 18 U.S.C. §1349 (in Count One of the Indictment) and convictions for wire fraud under 18 U.S.C. §§1343 and 2 (in Counts Two , . ‘through Eight) in a case where: (a) the rights and ; : obligations between the Petitioner and the : investor/“victims” were codified in written contracts that incorporated longstanding corporate governance documents, pre-existing ' operating agreements, and a related-offering : ’ memorandum; (b) the “victims” were “accredited investors” who were represented in their investment transactions by. financial advisors . and/or lawyers of their choice; (c) the “victims” agreed in writing to honor all of the terms and : conditions set forth in the applicable corporate "governance documents, which were promulgated and adopted by Petitioner's corporate ' predecessors; (d) every category of expenditures ; cited by the government as “fraudulent” or ; “personal” was expressly authorized in the governing operating agreements to which the “victims” agreed to be bound; (e) the “risk factors” related to these investments were disclosed to the “victims” and acknowledged in their : purchase agreements; (f) the businesses in which the “victims” invested were ongoing business enterprises at the time of their i