author: TORRUELLA, Circuit Judge.

text:
    Charkeem HYATT, Petitioner, Appellant, v. Bruce GELB, Superintendent, Respondent, Appellee.
    No. 15-2404
    United States Court of Appeals, First Circuit.
    October 19, 2016

      David M. Skeels and Committee for Public Counsel Services, Cambridge, MA, on brief for appellant.
    Susanne Reardon, Assistant Attorney General, Criminal Bureau, Appeals Division, and Maura Healey, Attorney General, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Charkeem Hyatt, petitioner-appellant, contests the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C, § 2254. Hyatt argues that Massachusetts state courts failed to apply the United States Supreme Court’s holding in Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934), in denying his request to be present during the jury view of the crime scene. After careful consideration, we affirm the district court’s denial of habeas corpus relief.

I. Background

On federal habeas review, the findings of fact of a state court “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1); see Sumner v. Mata, 455 U.S. 591, 592-93, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (per curiam). Accordingly, we must accept them unless convinced by clear and convincing evidence that they are erroneous. Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006) (quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc)). We take the facts as presented by the Massachusetts Appeals Court, which affirmed Hyatt’s conviction, supplemented with other record facts consistent with the state court’s findings. Scoggins v. Hall, 765 F.3d 53, 54 (1st Cir. 2014).

A. Trial

In July 2009, Hyatt was involved in the shooting of four people outside a bar in the Roxbury neighborhood of Boston, Massachusetts. A grand jury in Suffolk County indicted Hyatt on the following counts: one count of unlawful possession of a firearm, one count of unlawful possession of ammunition, one count of possession of a loaded firearm, three counts of aggravated assault and battery with a dangerous weapon, three counts of assault with a dangerous weapon, and four counts of possession of a firearm in the commission of a felony.

Hyatt pled not guilty to all counts, and a jury trial commenced on February 6, 2012, before Justice Brady of the Massachusetts Superior Court. On February 8, Justice Brady discussed the logistics and rules for a jury view of the scene where the shooting took place, which would take place on the following day. Hyatt’s trial counsel requested Hyatt’s presence during the view. Justice Brady responded that Hyatt could not go because of security reasons. He added, “He’s in custody. I can’t bring him. I don’t have enough security people for that. I’ve never had a defendant [attend a view], other than one who’s on the street.”

Later that day, Hyatt’s counsel renewed her request that Hyatt be allowed to accompany the jury on the view. In response to the request, the court engaged in the following exchange:

THE COURT: Look, I’m sorry. He’s in custody for very serious charges. It’s a very serious event. I’m not going to allow him to come on the view because I just don’t have adequate security. Further, I can’t have him without chains out there, so the jury is going to be there. It just isn’t a workable situation. So I understand that the [Massachusetts Supreme Judicial Court] has never changed the Judge’s discretion about that, so if you want, you’ve made an objection, that’s fíne, I’ve overruled it. But I’m not going to allow it.
MS. ODIAGA: I think the jury is going to be made more aware of the fact that he is in custody by his absence.
THE COURT: I probably have done maybe thirty views without defendants there, and I never said anything special. If you can think of anything you want me to say, I’d be happy to do it, but I think probably most lawyers feel that it’s better left unsaid. Maybe the jury will just assume that they never come. But if you can think of anything tomorrow, by all means I’d be happy to consider it, okay?

The next morning, the view proceeded as scheduled, without Hyatt in attendance. Both Hyatt’s counsel and the prosecutor representing the Commonwealth were permitted to point out certain features of the scene to the jury, but neither was allowed to make any argument or offer other commentary. At no point before or during the view did anyone draw any attention to the fact of Hyatt’s absence.

On February 16, 2012, the jury returned a verdict of guilty on all counts except the three counts charging him with assault by means of a dangerous weapon. Following the jury’s verdict, Hyatt was sentenced to a term of twelve to fifteen years of imprisonment.

B. Proceedings in Massachusetts Appellate Courts

Hyatt appealed his conviction to the Massachusetts Appeals Court, alleging that his exclusion from the view violated his constitutional rights to due process and his presumption of innocence. The Appeals Court rejected his arguments and affirmed the conviction. Commonwealth v. Hyatt, No. 12-P-1257, 2014 WL 2178782, at *1-3 (Mass. App. Ct. May 27, 2014). It noted that it was bound by “a long-standing precedent that a defendant does not have the right to be present for a view and that a defendant’s absence does not offend his rights under the United States Constitution of [the Massachusetts] Declaration of Rights.” Id. at *1 (citing cases). Relying oh this precedent, the Appeals Court held that Justice Brady had acted “well within his authority” when he cited “security” as the reason to deny Hyatt’s request to attend the view. Id.

The Appeals Court also noted that even if exclusion from a jury view could constitute a due process violation, Hyatt had failed to make the required showing that that violation had caused him “substantial harm.” Id. It also mentioned that it was unpersuaded by Hyatt’s attempt to analogize Justice Brady’s refusal to allow him to attend the view to allowing á defendant to be seen by the jury in prison garb or shackles, which requires particularized findings. Id.

Hyatt petitioned the Massachusetts Supreme Judicial Court for further review, but his petition was denied. Commonwealth v. Hyatt, 469 Mass. 1104, 15 N.E.3d 762 (2014).

Hyatt then filed a petition for habeas corpus relief under 28 U.S.C. § 2254 in the United States District Court for the District of Massachusetts, alleging that the trial court violated his due process and equal protection rights under the Fourteenth Amendment when it denied his request to accompany the jury on a view of the crime scene. The district court denied the petition, but granted a certificate of appealability. Hyatt v. Gelb, 142 F.Supp.3d 198, 205 (D. Mass. 2015). This appeal ensued.

II. Analysis

A. Standard of Review

We review the district court’s denial of habeas relief de novo. Sánchez v. Roden, 753 F.3d 279, 293 (1st Cir. 2014). “Our de novo review, encompasses the district court’s own ‘determination of the appropriate standard of review of the state court proceeding.’ ” Id. (quoting Zuluaga v. Spencer, 585 F.3d 27, 29 (1st Cir. 2009)). The district court is not entitled to deference. Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006). Rather, in these cases, we must “determine whether the habeas petition should have been granted in the first instance.” Sánchez, 753 F.3d at 293.

B. Antiterrorism and Effective Death Penalty Act Standards

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), habeas relief

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see Hodge v. Mendonsa, 739 F.3d 34, 41 (1st Cir. 2013); Zuluaga, 585 F.3d at 29. Only a legal or factual error that is objectively unreasonable warrants relief. Cooper v. Bergeron, 778 F.3d 294, 299 (1st Cir. 2015) (citing White v. Woodall, — U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014)),

“An adjudication is on the merits[,] giving rise to deference under § 2254(d) of AEDPA, if there is a decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Scott v. Gelb, 810 F.3d 94, 99 (1st Cir. 2016) (citations omitted) (internal quotation marks omitted). “[A] state-court adjudication of an issue framed in terms of state law is nonetheless entitled to deference under section 2254(d)(1) as long as the state and federal issues are for all practical purposes synonymous and the state standard is at least as protective of the defendant’s rights.” Id. (alteration in original) (quoting Foxworth v. St. Amand, 570 F.3d 414, 426 (1st Cir. 2009)).

“For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Linton v. Saba, 812 F.3d 112, 122 (1st Cir. 2016) (internal quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of [the state court’s] decision.” Id. at 122-23 (alteration in the original) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. at 123 (quoting Alvarado, 541 U.S. at 664, 124 S.Ct. 2140). “Thus, to obtain federal habeas relief, a petitioner must show ‘the state court’s ruling on the claim .... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Id. (quoting Richter, 562 U.S. at 103, 131 S.Ct. 770).

C. Hyatt’s Claims

Hyatt alleges that the Appeals Court’s decision was contrary to clearly established federal law because it did not identify or apply the 'correct federal standard as to when a defendant has a right to be present at a view. He points out that the applicable standard was announced in Snyder, 291 U.S. 97, 54 S.Ct. 330, where the Supreme Court considered whether a defendant’s exclusion from a view of the crime scene was a denial of due process under the Fourteenth Amendment, but notes that 'the Appeals Court did not even mention it in its decision or cite any other federal authority in support of its conclusions and, instead, relied on “a long line of state court decisions.” He also posits that “whether to exclude' a defendant from a view must be determined in the light of the whole record,” but the Appeals Court failed to do so.

Hyatt is correct that the Appeals Court did not cite Snyder or other federal precedent directly. We note, however, that the precedent on which the Appeals Court relied did so. Hyatt, 2014 WL 2178782, at *1 (citing Commonwealth v. Evans, 438 Mass. 142, 150-51, 778 N.E.2d 885 (2002) (citing Snyder, 291 U.S. at 107-08, 54 S.Ct. 330)). And, in any event, a state court need not cite or even be aware of Supreme Court cases to be entitled to deference under § 2254(d) “so long as neither the reasoning nor the result of the state-court decision contradicts them.” See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).

In this case, the Appeals Court held that a defendant does not have a right to be present for a view and that a defendant’s absence does not offend his constitutional rights. The Appeals Court recognized that “the particular circumstances of a case may be such that events at a view may deny a defendant a fair proceeding and thereby deprive him of due process,” but noted that a defendant making such a claim must show substantial harm. and Hyatt failed to do so.

In Snyder, the Court noted that while a defendant has a right to be present at trial, “a view is not a ‘trial’ nor any part of a trial in the sense in which a trial was understood at common law.” Snyder, 291 U.S. at 113, 54 S.Ct. 330. It fur ther stated that “in a prosecution for a felony the defendant has the privilege under the. Fourteenth Amendment., to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Id. at 105-06, 54 S.Ct. 330. The Supreme Court clarified that “[n]owhere in [its] decisions ... is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow.” Id. at 106-07, 54 S.Ct. 330. Accordingly, “[s]o far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-08, 54 S.Ct. 330. And “the justice or injustice” of excluding a defendant in a particular set of circumstances “must be determined in the light of the whole record.” Id. at 115, 54 S.Ct. 330. The Supreme Court concluded in Snyder that the denial of the defendant’s request to be present when the jury viewed the crime scene and the prosecutor and defense counsel pointed out to the jury specific things they wanted them to observe, did not constitute a denial of due process. Id. at 122, 54 S.Ct. 330.

Hyatt seems to interpret Snyder as the default being in favor of attendance unless a judge makes particularized findings based on the entire record justifying a defendant’s absence from a view. The Appeals Court’s interpretation of federal law, however,- seems to be aligned with the district court’s reading of Snyder as holding “that the default is that á defendant has no right to be at a view unless there are particular circumstances making such exclusion unfair.” Hyatt, 142 F.Supp.3d at 204 (quoting Devin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996) (“The lesson of Snyder is that, if in any given case the exclusion of the defendant from a jury view is found to be a deprivation of due process, it is not because the Constitution guarantees the defendant an absolute right to be present; it is only because his absence, under the particular circumstances of his case, can be said to have denied him a fair proceeding.”)). It is unnecessary to determine which interpretation is more consistent with Snyder, as it suffices to say that the Appeals Court’s decision did not contradict, nor was it an unreasonable application of, the Supreme Court’s holding in Snyder. See Mendonsa, 739 F.3d at 41-43. We acknowledge that there might be a case where a defendant’s absence from a view may deny the defendant “fair and just” proceedings and, thus, constitute a due process violation. See Snyder, 291 U.S. at 105-08, 54 S.Ct. 330. We note, however, that Hyatt did not make any showing to the Appeals Court that, under the circumstances of his case, his exclusion from the view denied him of a fair and just proceeding or thwarted his opportunity to defend against the charges he was facing. The record shows that, as in Snyder, counsel for both parties did. not present any evidence during the view, but merely pointed out particular aspects at the scene to the jury. In addition, Hyatt and his counsel had the opportunity to review existing photographs, video, and maps related to the view prior to trial. At trial, his counsel cross-examined the Commonwealth’s identification witnesses about their opportunity to view the shooter and their truthfulness. He presented testimony of three witnesses to demonstrate that he was not the shooter. Finally, in addition to the lack of substantial harm, Hyatt was on trial for “very serious charges,” and Judge Brady noted there was a lack of sufficient security personnel availáble.

In light of the above, we cannot conclude that the Appeal’s Court ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Linton, 812 F.3d at 123 (quoting Richter, 562 U.S. at 103, 131 S.Ct. 770).

III. Conclusion

The Appeals Court did not rule “contrary to” or unreasonably apply “clearly established Federal law.” Accordingly, we affirm the district court’s denial of Hyatt’s habeas corpus petition.

Affirmed.

      . In the state courts and the district court Hyatt also claimed that Justice Brady’s refusal to permit his attendance at the view undercut his presumption of innocence, as it is similar to appearing before the jury in prison garb or shackles.. Because this argument was not meaningfully discussed in his brief as a ground for relief before this Court, and it would fall outside of the scope of the certificate of appealability, we. limit our discussion accordingly.

      . The Supreme Court noted that "fairness is a relative, not an absolute concept.” Snyder, 291 U.S. at 116, 54 S.Ct. 330. "It is fairness with reference to particular conditions or particular results. 'The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall.’” Id. at 116-17, 54 S.Ct. 330 (quoting Ownbey v. Morgan, 256 U.S. 94, 110-11, 41 S.Ct. 433, 65 L.Ed. 837 (1921)).


source: Caselaw Access Project

author: BARRON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Michael P. O’DONNELL, Defendant, Appellant.
    No. 16-1008
    United States Court of Appeals, First Circuit.
    October 19, 2016

      James L. Sultan, with whom Charles W. Rankin and Rankin & Sultan, Boston, MA, were on brief, for appellant.
    Mark J. Balthazard, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before TORRUELLA and BARRON, Circuit Judges, and LISI, District Judge.

       Of the District of Rhode Island, sitting by designation.

   BARRON, Circuit Judge.

Michael O’Donnell appeals from his conviction on one count under 18 U.S.C. § 1344, the Bank Fraud Act. We affirm.

I.

O’Donnell was indicted under the Bank Fraud Act (the Act) on June 15, 2015. The Act provides:

Whoever knowingly executes, or attempts 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;
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

18 U.S.C.' § 1344.

The indictment alleged that O’Donnell violated subsections (1) and (2) of the Act. Specifically, the indictment alleged that he “knowingly executed and attempted to execute a scheme and artifice to defraud Countrywide Bank, FSB, a federally-insured financial institution, and to obtain money ... and other property owned by and under the custody and control of Countrywide Bank, FSB, by means of false and fraudulent pretenses, representations, and promises, concerning material facts and matters in conjunction with a mortgage loan in the amount' of $44,000 for property located at 40 Harbor Street, Salem, Massachusetts.”

Following indictment, O’Donnell waived his right to a jury trial and opted for a bench trial. He also entered into a stipulation. The stipulation set forth the following facts concerning the scheme alleged in the indictment.

While serving as a self-employed loan originator operating through his loan originator business, AMEX Home Mortgage Corporation, O’Donnell completed loan applications and submitted them to mortgage companies on behalf of individuals seeking to purchase or refinance property. In 2007, O’Donnell sought to defraud mortgage lenders in connection with the refinancing of the property in Salem, Massachusetts referenced in the indictment.

The scheme began with O’Donnell’s efforts to obtain a mortgage loan- on a different property, which was owned by a woman named L,T. In connection with that transaction, O’Donnell submitted a mortgage loan application containing false information about L.T. to Homecomings Financial Network, Inc. O’Donnell also paid, from a bank account controlled by AMEX, approximately $37,000 that L.T. was supposed to put down herself to secure the loan for that property.

After O’Donnell was successful in securing the mortgage loan in L.T.’s name, O’Donnell then sought to secure a second mortgage loan in L.T.’s name, this time for the Salem, Massachusetts property named in the ’ indictment. O’Donnell sought this loan in order to obtain the $37,000 that he had put down to secure the first loan in L.T.’s name.

O’Donnell submitted the application for this second loan to a different entity from the one to which he had submitted the application for the first loan. The stipulation referred to the entity to which O’Donnell-submitted the second loan application as follows: “Countrywide, where Countrywide Home Loans employees underwrote and processed the application.”

This second loan application contained many of the same false statements that were in O’Donnell’s application for the first loan in L.T.’s name. O’Donnell also provided fraudulent responses to various followup inquiries in the course of seeking this second loan. When this second loan closed, O’Donnell pocketed most of the proceeds.

The key issue at trial concerned whether O’Donnell’s fraudulent scheme to secure the second loan targeted Countrywide Bank, FSB, as the indictment alleged, or only Countrywide Home Loans, as O’Donnell . contended. The identification of the intended target was crucial because O’Donnell stipulated that Countrywide Bank,.FSB was a “financial institution” within the meaning of the Act, while the government did not dispute that Countrywide Home Loans was not.

In ruling from the bench at the close of evidence, the District Court explained that it had determined that the record showed that O’Donnell was “on notice” that Countrywide Bank, FSB was “part of this transaction in some form” in the second loan transaction. With that finding in place, the District Court then found that O’Donnell was guilty of “attemptfingj” to execute—though not of actually executing—a scheme or artifice described in subsections (1) and (2) both because O’Donnell had intended to defraud Countrywide Bank, FSB and because he had intended to obtain money and property that was under Countrywide Bank, FSB’s custody and control. This appeal followed.

II.

“We review a bench trial conviction de novo, examining the facts and inferences in the light most favorable to the verdict.” United States v. Ngige, 780 F.3d 497, 503 (1st Cir. 2015) (citing United States v. Tum, 707 F.3d 68, 69 (1st Cir. 2013)). The ultimate question is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Grace, 367 F.3d 29, 33 (1st Cir. 2004) (quoting United States v. Casas, 356 F.3d 104, 126 (1st Cir. 2004)). “[TJhis court need not believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in a plausible rendition of the record.” United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006).

We start with the Supreme Court’s most recent case construing the Act, Loughrin v. United States, — U.S. -, 134 S.Ct. 2384, 189 L.Ed.2d 411 (2014). Loughrin makes clear that subsections (1) and (2) of the Act set out two routes' to proving criminal liability under the statute. See id. at 2389-92. Loughrin also makes clear that proof that the defendant violated either subsection is sufficient to support a conviction under the Act. Id. Because we conclude that the evidence in this case was sufficient to prove a violation under subsection (1), we confine our analysis to what the evidence shows regarding that portion of the Act. See United States v. Gaw, 817 F.3d 1, 4 (1st Cir. 2016) (“[W]e must affirm each count if the evidence is sufficient for the jury to have convicted [the defendant] under any one of the relevant theories of liability presented to the jury as to that count.”).

Under subsection (1), a defendant who “knowingly executes or attempts to execute” a scheme or artifice to defraud a “financial institution” violates the Act. O’Donnell contends that because the District Court found him guilty under subsection (1) only of “attempt[ing]” to defraud a financial institution (rather than of actually “knowingly executing]” such a scheme), the government was required to show that O’Donnell specifically intended to defraud Countrywide Bank, FSB and that he took a substantial step towards doing so. The government does not appear to disagree. The government instead simply contends that the evidence sufficed to show that O’Donnell did specifically intend just that.

O’Donnell’s contrary argument proceeds in the following steps. He first argues that, under the “attempt” prong of subsection (1), the government had to prove that he specifically intended to defraud a “financial institution.” He thus contends that the government had to prove that he specifically intended to defraud Countrywide Bank, FSB, and not simply Countrywide Home Loans. After all, the parties agree that only Countrywide Bank, FSB is a “financial institution” under the Act. For that reason, an attempt to defraud Countrywide Home Loans would not be an attempt to defraud a “financial institution” and thus would not be a crime under subsection (1).

O’Donnell then contends that the evidence shows that, at most, Countrywide Bank, FSB “may have been involved in some way in the transaction.” As a result, O’Donnell contends, he cannot have been found guilty under subsection (1), because the evidence in the record that supports a finding that O’Donnell knew that Countrywide Bank, FSB was involved “in some way” is insufficient to show that he specifically intended to defraud Countrywide Bank, FSB.

To support this argument about the insufficiency of the evidence, O’Donnell contends that the record reveals what he characterizes as only a “perfunctory reference” to Countrywide Bank, FSB in the papers that he received in connection with his application for, and the approval of, the second loan transaction. He also notes that most of the loan documents that he saw referenced Countrywide Home Loans and not Countrywide Bank, FSB. Further, he points out that the documents that he did see and that referred to Countrywide Bank, FSB, also contained references to Countrywide Home Loans. Thus, he contends that, although the evidence shows that he may have specifically intended to defraud Countrywide Home Loans, the evidence that he knew of'Countrywide Bank, FSB’s involvement in the transaction is simply too slight to show that he specifically intended to defraud Countrywide Bank, FSB.

The first of the documents that O’Donnell received that referred to Countrywide Bank, FSB, however, was not just any document. It was the loan conditions sheet, which contained the loan’s terms and the conditions for its approval. And that document did not just contain any reference to Countrywide Bank, FSB. It made the following statement: “Thank you for submitting your loan to Countrywide Bank, FSB.! We sincerely appreciate your business.” (emphasis added).

O’Donnell does not deny receiving this document. In fact, the record shows that he responded to the document by supplying the specific and detailed information (fabricated though it was) that the conditions sheet sought.

In addition, O’Donnell received another document that referenced Countrywide Bank, FSB. This second document was the final loan approval document. This document informed O’Donnell that, by submitting the information requested by the conditions sheet, he had met the requirements that it had set forth. And this second document made the same statement that the conditions sheet had made: “Thank you for submitting your loan to Countrywide Bank, FSB.! We sincerely appreciate your business.” Moreover, the record shows that, after receiving this second document, O’Donnell received a check made out to his business in consequence of the loan application’s approval.

Given the documents that O’Donnell concededly saw in carrying out his fraudulent scheme, the nature of their references to, Countrywide Bank, FSB, and what the record shows about what happened after he received each document, the record clearly supports a finding that O’Donnell was aware that Countrywide Bank, FSB— and not just Countrywide Home Loans— was involved in approving the loan that O’Ddnnell was seeking to' obtain through fraudulent means.

Moreover, O’Donnell received these documents referencing Countrywide Bank, FSB while he was concededly engaged in a fraudulent scheme to secure a loan via false statements. And he was, by his own account, a sophisticated actor in the loan origination business. He thus fairly could have been understood to have been aware, as we observed more than two decades ago, that “financial transactions are becoming increasingly integrated and complex” and that “the effects of fraudulent actions against one institution are increasingly likely to spill over and detrimentally affect others.” Brandon, 17 F.3d at 427. As a result, the documents at issue sufficiently support the reasonable inference that, because O’Donnell was “on notice” of Countrywide Bank, FSB’s involvement in the loan’s approval, O’Donnell specifically intended to defraud Countrywide Bank, FSB and not simply Countrywide Home Loans. See United States v. Munyenyezi, 781 F.3d 532, 536 (1st Cir. 2015) (explaining that on sufficiency review we must “tak[e] the evidence and reasonable inferences in the light most helpful to the prosecution”); United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (explaining that “factfinders may draw reasonable inferences from the evidence based on shared perceptions and understandings of the habits, practices, and inclinations of human beings”).

To be sure, there is no evidence that O’Donnell was aware that Countrywide Bank, FSB was a “financial institution.” But, there is no dispute that it is. And we have long held that the defendant need not have scienter of that necessary fact in order to be found guilty under the Act. See United States v. Brandon, 17 F.3d 409, 425 (1st Cir. 1994) (“The fact that it should turn out that the fináncial institution actually defrauded was federally insured is a fortuitous stroke of bad luck for the defendants but does not make it any less of a federal crime.”). Nor does anything in Loughrin hold otherwise, as the Court had no occasion to address that question. Thus, to. the extent that O’Donnell means to contend that Loughrin requires us to depart from our precedent on this point, we see no basis for reaching such a conclusion.

O’Donnell next contends that, even if the record supports the inference that he specifically intended to defraud Countrywide Bank, FSB, the government still had to show that he took a “substantial step” towards executing that fraudulent scheme in order for him to be convicted of “attempt[ing]” to execute such a scheme. But, as we have already pointed out, the record reveals that O’Donnell responded to the conditions sheet in which Countrywide Bank, FSB thanked him for submitting his loan by sending fraudulent information in order to secure the loan. The sending of such information in response to that request qualifies as a “substantial step” because it is an act “of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken with a design to violate the statute.” See United States v. Dworken, 855 F.2d 12, 19-20 (1st Cir. 1988).

In so concluding, we recognize that the record shows that O’Donnell sent his response containing the fabricated information to Countrywide Home Loans—rather than to Countrywide Bank, FSB. And we recognize, too, that the papers that O’Donnell received in connection with the loan transaction referred to both Countrywide Home Loans and to Countrywide Bank, FSB. But, as we have explained, the nature of the references in those documents to Countrywide Bank, FSB are such that the record adequately supports the inference that O’Donnell specifically intended to defraud that latter entity and not simply the former one. Thus, the record sufficiently supports the finding that, by submitting fraudulent information to secure the loan in response to the conditions sheet that thanked O’Donnell for submitting-his loan to Countrywide Bank, FSB, O’Donnell was taking a substantial step in his attempt to execute a fraudulent scheme directed at that same entity, even though he sent the response itself to Countrywide Home Loans.

Finally, O’Doiinell argues that it was legally impossible.for him to commit attempted bank fraud if he did not . commit the completed crime, given that he specifically intended to defraud only Countrywide Home Loans and that he was not found guilty of doing anything more than attempting to defraud Countrywide Bank, FSB. This contention necessarily rests, however, on the premise that the evidence showing O’Donnell’s awareness of Countrywide Bank, FSB’s involvement in the loan transaction is- insufficient to support the finding that O’Donnell specifically intended to defraud Countrywide Bank, FSB. But, as we. have explained, that premise is mistaken, given the documents thanking O’Donnell for submitting his loan to Countrywide Bank, FSB and O’Donnell’s admitted sophistication in the loan origination business. Thus, O’Donnell’s legal impossibility argument is without substance.-

III.

For the foregoing reasons, the conviction is affirmed.

      . Our prior cases did not always distinguish between the two subsections of the statute in the way that Loughrin now requires.

      . In contrast to subsection (1), under subsection (2), Loughrin makes clear, the government must show that "the defendant intended] ‘to obtain any of the moneys ... or other property owned by, or under the custody or control of, a financial institution.’ ” Loughrin, 134 S.Ct. at 2389 (quoting 18 U.S.C. § 1344(2)). Thus, under subsection (2), a defendant may be convicted for violating the Act if he used fraudulent means to attempt to obtain money or property that he knew was "owned by, or under the custody or control of, a financial institution.” Loughrin, 134 S.Ct. at 2388 (citing 18 U.S.C. § 1344(2)). And, a conviction on that basis is proper even if the defendant made no "false or fraudulent pretenses, representations, or promises” directly to the financial institution. Id. Still, under that subsection, the government must show that the "moneys ... or other property” sought by the defendant were "owned by, or under the custody or control of, a financial institution,” which, in this case, would be Countrywide Bank, FSB and not Countrywide Home Loans. Id.

      . We note that the government expressly argued to the District Court that a showing that there was a "risk of loss” to the financial institution was required under subsection (1), and it appears that the District Court made its finding of guilt under subsection (1) on the understanding that a "risk of loss” showing was required. O’Donnell does not challenge on appeal, however, the “risk of loss”>finding that the District Court made. We thus treat as waived any argument by O’Donnell regarding the "risk of loss” issue. The first time he directly addresses the risk of loss issue is in his reply brief, where he merely notes that the Supreme Court may “illuminate the scienter requirement” for subsection (1) in Shaw v. United States, 781 F.3d 1130 (9th Cir. 2015), cert. granted, — U.S. -, 136 S.Ct. 1711, 194 L.Ed.2d 809 (2016). In Shaw, the Ninth Circuit, post-Loughrin, held that a conviction under subsection (1) does not require the government to prove a risk of loss to the financial institution. IA at 1136. Other circuits however, pre-Loughrin, have reached the opposite conclusion. See, e.g., United States v. Staples, 435 F.3d 860, 866 (8th Cir. 2006).

      . O’Donnell’s contention that the loan at issue in this case was not an "integrated transaction,” as was true of the loan involved in United States v. Edelkind, 467 F.3d 791, 798 (1st Cir. 2006), is beside the point. Here, the evidence was sufficient to support a finding that O’Donnell had the specific intent to defraud Countrywide Bank, FSB even if the transaction was not of that "integrated" type, and nothing in Edelkind precludes such an assessment of this record.


author: HOWARD, Chief Judge.

text:
    Claudia Milena GIRALDO-PABON, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
    No. 16-1260
    United States Court of Appeals, First Circuit.
    October 21, 2016

      Elyssa N. Williams on brief for petitioner.
    -Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation, and John F. Stanton, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Dep’t of Justice, on brief for respondent.
    Before HOWARD, Chief Judge, SELYA and LIPEZ, Circuit Judges.
   HOWARD, Chief Judge.

Petitioner Claudia Milena Giraldo-Pa-bon (“Giraldo”), a native and citizen of Colombia, asks us to review a Board of Immigration Appeals (“BIA”) order denying her motion to reopen. After careful consideration of the briefs and the .record, we deny her petition.

I.

Having previously entered this country without inspection and later returned to Colombia, Giraldo entered the United States unlawfully in 2004 and was subsequently served with a Notice to Appear charging her as removable pursuant to Immigration and Nationality Act §§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I). In response, Giraldo sought asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). Her claims were denied, yet she did not appeal the immigration judge’s (“IJ”) decision to the BIA. Instead, Giraldo voluntarily returned to Colombia.

Giraldo re-entered the United States in 2013 and filed a motion to reopen removal proceedings in August 2014. She submitted evidence of drug gang-related acts of violence against two of her cousins in Colombia in support of her motion.

The IJ denied: Giraldo’s motion to reopen on two grounds, one of which was that Giraldo had failed to establish an exception to the time limitations on motions to reopen. The BIA affirmed the IJ’s decision on this basis. Giraldo filed this timely petition seeking review of the BIA’s decision.

II.

Where, as here, the BIA issues a decision adopting and illuminating some of an IJ’s findings and conclusions,' we treat the relevant parts of - the two decisions as one for purposes of review. See Wan v. Holder, 776 F.3d 52, 55-56 (1st Cir. 2015). We review the agency’s denial of a motion to reopen removal proceedings for abuse of discretion. Mejia-Ramaja v. Lynch, 806 F.3d 19, 20 (1st Cir. 2015), Under this standard, we must uphold the BIA’s decision unless Giraldo can show “that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.” Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir. 2008) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)).

Normally, a motion to reopen immigration proceedings must be filed.within 90 days of the entry of the final order of removal. 8 C.F.R. § 1003.2(c)(2). Giraldo’s motion was filed well past—in fact, years past—this 90-day limit. There is, however, an exception available when the motion to reopen is “based on changed circumstances arising in ... the country to which deportation has been ordered.” 8 C.F.R. § 1003.2(c)(3)(ii). Giraldo seeks to overcome the lateness of her motion by invoking this exception. We agree with the BIA that the exception is inapplicable. See Mejia-Ramaja, 806 F.3d at 21.

Two related but distinct questions are on the table when an untimely motion to reopen has been filed: first, whether the petitioner has presented sufficient evidence of changed country conditions to permit her to file a tardy motion to reopen; and second, whether the new evidence that the petitioner has presented, together with evidence already in the record, shows that she has a reasonable likelihood of prevailing on her asylum, withholding of removal, or CAT claims. Smith v. Holder, 627 F.3d 427, 433 (1st Cir. 2010). The agency may deny a petition if it determines that the movant has failed to meet either of those requirements. Id. In Giral-do’s case, the BIA concluded that she had not made out a prima facie case for any of the forms of relief sought.

To establish eligibility for asylum, an applicant must prove either past persecution or a well-founded fear of future persecution if repatriated, on account of one of five enumerated grounds: race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C, § 1101(a)(42)(A). To make out a prima facie case for asylum in the context of a-motion to reopen, the “applicant need only produce objective evidence showing a ‘reasonable likelihood’ that [she] will face future persecution based on a statutory ground.” Smith, 627 F.3d at 437 (internal quotation marks omitted). A “reasonable likelihood” means a showing that there is a realistic chance that the petitioner can establish that asylum should be granted at a later time. Id.

Giraldo argues that she is eligible for asylum because she has a well-founded fear of future persecution based on kinship ties and imputed political opinion. Essentially, she asserts that her safety and security in Colombia are jeopardized by her extended family’s ongoing involvement in a narco-trafficking cartel.

It is true that one’s family can constitute a protected social group. See Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st Cir. 2014) (“The law in this circuit and others is clear that a family may be a particular social group simply by virtue of its kinship ties, without requiring anything more.”). However, the BIA did not find that Giraldo failed to establish membership in a particular social group; rather, it determined that she failed to show that she could establish the necessary nexus between the feared persecution and her group membership. There was no abuse of discretion in that determination.

To satisfy the nexus requirement, an asylum applicant must “provide sufficient evidence to forge an actual connection between the harm and some statutorily protected ground.” Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007). The BIA did not abuse its discretion when it concluded that Giraldo failed to satisfy this requirement. Giraldo cites little in the way of nexus evidence other than her uncle’s admonition “not- to go -out too often” after a cousin’s murder and her own belief that another cousin was stabbed because of other family members’ involvement in narco-trafficking. Cf. Guerra-Marchorro v. Holder, 760 F.3d 126, 128-29 (1st Cir. 2014) (substantial evidence supported conclusion that there was no nexus between alleged harm and a protected ground when petitioner “presented no evidence other than his own speculation to forge the statutorily required link” (internal quotation marks omitted)); Lopez-Castro v. Holder, 577 F.3d 49, 53 (1st Cir. 2009) (“Without knowing who was responsible for the killings [of alien’s family members] or what had prompted them, there is no more than a guess that a nexus existed between the deaths and a statutorily . protected ground.”).

As for Giraldo’s argument that she would face harm on account of her political opinions, that too fails. The only remotely political activities that she cites are starting a prayer group with still another cousin—who has apparently not been harmed—and “helping people in social projects.” Giraldo also claims to be “vocal[ly] oppos[ed] to criminal enterprises.” Yet, mere opposition to crime, without more, does not constitute a political opinion. Cf. Mayorga-Vidal v. Holder, 675 F.3d 9, 18 (1st Cir. 2012) (opposition to gangs, without more, is not a political opinion). Thus, the BIA did not abuse its discretion in denying this claim.

Because Giraldo has failed to carry the burden of persuasion for the asylum claim, her counterpart claim for withholding also necessarily fails. See Villa-Londono v. Holder, 600 F.3d 21, 24 n.1 (1st Cir. 2010).

Finally, in her brief to this court, Giraldo referred to her CAT claim in only a perfunctory manner. For this reason, she has abandoned that claim. See, e.g., Segran v. Mukasey, 511 F.3d 1, 7 & n.2 (1st Cir. 2007).

III.

For the foregoing reasons, we deny Gir-aldo’s petition for review.

      . Giraldo attempted to enter the United States using an altered Colombian passport bearing her photograph and the name "Sugen Cure Perez” and containing an altered United States B-l/B-2 nonimmigrant visa.

      , In 2011, Giraldo traveled to Canada, where she requested refugee status. Following denial of her application, she returned to Colombia. She was in Colombia for less than a month before returning to the United States.

      . Below, Giraldo sought asylum or withholding of removal on the basis of her religion, political opinion, or membership in a particular social group. She has not addressed religion on appeal, and this claim is deemed abandoned. See Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 351 n.2 (1st Cir. 1992).