Mark Scott’s attorney has put forward the extraordinary argument that lying to banks isn’t bank fraud.

The claim was made in an October 23rd letter to the court, regarding the DOJ’s request to charge Mark Scott with bank fraud.

Scott was indicted on bank fraud via an S10 superseding indictment earlier this month.

As summed up by Scott’s attorney;

The Superseding Indictment alleged that unspecified false statements made by Scott and others were introduced into the global financial system through various entities including foreign banks that are not financial institutions under the Bank Fraud statute somehow making their way to FDIC insured banks which made transfers of certain funds that were the object of the scheme.

Scott’s attorney thus argues that because Scott allegedly lied to banks and financial institutions that aren’t FDIC insured (essentially non-US), no bank fraud was committed.

The evidence against Mr. Scott involves almost exclusively his dealings with off-shore banks and financial institutions, not institutions insured by the FDIC.

The Fenero Funds Mr. Scott controlled that allegedly received proceeds of a OneCoin wire fraud scheme had relationships with the Bank of Ireland, DMS Bank in the Cayman Islands and other non-U.S. financial institutions.

The Government has repeatedly represented that Mr. Scott made various false statements to these non-U.S. financial institutions directly or through intermediary fund managers such as Apex in order to convince these non-U.S. banks to accept funds from his investors and to make investments and other financial transactions through these accounts.

Such conduct would not be bank fraud.

Scott’s attorney has asked the court to prohibit the DOJ from representing to the jury that Scott’s alleged lies to ‘Apex or non-U.S. banks alone could constitute bank fraud.

It is important that the Court not permit the Government to conflate in its jury addresses or witness examinations “lying to banks” around the world with the more limited concept of bank fraud conspiracy.

On the flipside, the DOJ claims it identified transfers tied to Scott at at least three U.S. financial institutions.

As an alternative Scott’s attorney proposes the DOJ make this evidence available for jury instruction (part of the legal rules jurors follow when deciding a case).

A decision on the matter remains pending. Stay tuned…