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U.S. Attorneys' Manual

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U.S. Attorneys' Manual
Criminal Resource Manual

810. Loss to the Bank

While it must be proven that the financial institution was deprived of control over its funds to have a misapplication, there is no need to prove that the institution actually suffered a loss. United States v. Cauble, 706 F.2d 1322, 1354 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984). The mere probability of loss to the bank is sufficient to establish intent to injure, and neither a possibility of future benefit to the bank nor restitution is a defense. United States v. Beran, 546 F.2d 1316, 1321-22 (8th Cir. 1976), cert. denied, 430 U.S. 916 (1977); see also United States v. Barakett, 994 F.2d 1107, 1111 (5th Cir. 1993), cert. denied, 114 S.Ct. 701 (1994). Evidence of a benefit or restitution to the bank may be allowed to disprove intent to injure or defraud, however. United States v. Riley, 550 F.2d 233 (5th Cir. 1977).

[cited in USAM 9-40.000]