Bank fraud; Coronavirus Aid, Relief, & Economic Security (CARES) Act; The Small Business Administration (SBA) Paycheck Protection Program (PPP); The Economic Injury Disaster Loan (EIDL) Program; Sufficiency of the evidence for an aggravated identity theft conviction; 18 USC § 1028A; United States v Lumbard; Dubin v United States; Allowing a law enforcement officer to give lay witness opinion testimony under FRE 701; Whether certain testimony violated FRE 404(b) as impermissible character evidence; Answer to a jury question about the interstate-communications element of wire fraud; Sentencing; Loss calculation for the base offense level; Enhancement for “vulnerable victims” (USSG § 3A1.1(b))

The court held that there was sufficient evidence to support defendant-Prather’s aggravated identity theft conviction. It also rejected her evidentiary challenges under FRE 701 and 404(b), and her sentencing challenges. A jury convicted her of bank fraud, wire fraud, aggravated identity theft, and making a false statement on a loan application related to the CARES Act. She submitted six PPP loan applications for six businesses. She used proceeds from the loan she obtained on the first application for personal expenses. “As Prather’s PPP applications rolled in,” a bank employee “noticed irregularities.” An investigation revealed that only one of the businesses was operational, and it only had a total income of $1,500 in 2019. Federal agents also learned that Prather had sought EIDL loans. “As with the PPP-loan applications, inconsistencies abounded among” those applications. She also submitted EIDL loan applications in the name of her nephew, D.P., who suffered from a mental disability. The court first held that there was “ample evidence to support” her identity theft conviction. The record showed that she had used D.P’s identity to apply for fraudulent EIDL loans and he “testified to signing the loan applications at his aunt’s request without understanding the significance of his actions.” The court noted that the loan applications “listed Prather’s phone number and email address as the contacts for the business. Yet, despite Prather’s heavy involvement, the applications indicated that no one helped D.P. prepare them.” The court found that using “D.P.’s identity in the November EIDL-loan applications was ‘at the crux of what’ made Prather’s scheme ‘criminal.’ . . . That is, D.P.’s ‘name itself’ was ‘specifically a source of fraud.’” Even if he had willingly given Prather his identifying information, she could still be convicted under § 1028A where she acted “‘without lawful authority.’” The court held that the Supreme Court in Dubin did not abrogate the court’s prior case precedent in this regard. Among other things it also held that the “district court correctly informed the jury that Prather didn’t need to know the interstate nature of her acts to be convicted of wire fraud.” As to her sentences, the district court did not err (1) “in using intended loss to calculate her sentence” or (2) in applying the enhancement for “vulnerable victims,” § 3A1.1(b). The court affirmed her convictions and her sentences.