United States v. Martin

Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH September 8, 2026 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-3140 NANCY MARTIN, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 6:23-CV-01108-EFM & 6:21-CR-10018-EFM-1) _________________________________ Branden A. Bell of The Bell Firm, Lawrence, Kansas, for Defendant-Appellant. James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff- Appellee. _________________________________ Before BACHARACH, MORITZ, and FEDERICO, Circuit Judges. _________________________________ FEDERICO, Circuit Judge. _________________________________ Nancy Martin embezzled millions of dollars from her employers over the course of years. When they discovered the scheme, those employers sued her in Kansas state court. Martin never appeared in court on the apparent  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 2 advice of counsel, and the employers were awarded a default judgment of more than $11 million. Not long after, the federal government indicted Martin, accusing her of committing bank fraud and failing to report the embezzled money on her tax returns. Pursuant to the advice of counsel, Martin pleaded guilty to two counts, one for each offense charged. The federal court sentenced her to prison and ordered that she pay restitution to the victims. Martin later retained new counsel and returned to the district court to argue via a motion for habeas corpus under 28 U.S.C. § 2255 that her conduct did not in fact constitute the crimes to which she pleaded guilty. She claimed that her attorney had failed to inform her about a possible defense that the checks she wrote against her employers’ accounts were not sufficient to prove bank fraud. She also alleged that her attorney did not tell her that she could only be convicted of the tax crime if she acted willfully, or that she had the specific intent to violate the law when she filed her tax documents. As a result, she argued that her counsel’s assistance was constitutionally ineffective so her convictions and sentence should be vacated. The district court denied Martin’s motion to vacate her convictions. She now appeals that denial to this court. We reverse and remand for further proceedings before the district court. 2  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 3 I This appeal arises from Nancy Martin’s conviction on a single count each of bank fraud, 18 U.S.C. § 1344(2), and aiding or assisting in filing a false tax document, 26 U.S.C. § 7206(2). The criminal proceedings leading to those convictions began when the United States charged Martin pursuant to a five-count indictment: one count of bank fraud, 18 U.S.C. § 1344(2), and four counts of aiding or assisting in the filing of false tax documents, 26 U.S.C. § 7206(2). She was represented by and consulted with counsel before entering into a plea agreement with the Government. The agreement called for Martin to plead guilty to the bank fraud count (Count One) and one count of filing a false tax document (Count Four). It also required Martin to waive her right to appeal her conviction and sentence. In exchange, the Government agreed to dismiss the remaining three counts and to recommend the district court sentence Martin to the low end of the advisory sentencing guidelines range. The district court accepted Martin’s pleas and thereafter calculated the advisory sentencing guidelines range as 63 to 78 months of imprisonment. Consistent with its promise in the plea agreement, the Government recommended a sentence of 63 months’ imprisonment. Martin requested a sentence to a term of probation. Her attorney argued that 3  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 4 Martin’s lack of criminal history, medical issues, and advanced age – 78 years, at the time of sentencing – all counseled in favor of probation. The court found Martin’s arguments unavailing. But it also found the Government’s requested term of imprisonment too lengthy. The court varied below the advisory guidelines range and sentenced Martin to 48 months’ imprisonment on the bank fraud count and 36 months’ imprisonment on the tax count, both sentences to run concurrent with one another. The court also ordered Martin to pay $3.9 million in restitution: $3.2 million to her former employer and $700,000 to the IRS. 1 II Martin then appealed from her judgment and sentence. See United States v. Martin, No. 23-3045, 2023 WL 4858015 (10th Cir. July 31, 2023) (per curiam). In that initial direct appeal, Martin sought to challenge the factual basis for her convictions as well as the amount of loss and restitution calculated by the district court. See id. at *1. The Government moved to enforce the appeal waiver in the plea agreement. Id. at *4. This court granted the Government’s motion and dismissed the appeal without reaching the merits. Id. 1 Although Martin defrauded two distinct legal entities, Mid-Kansas Wound Specialists has assigned its recovery entitlement to Emergency Services P.A. 4  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 5 After the previous panel of this Court found Martin’s direct appeal of her judgment and sentence barred by the waiver in her plea agreement, Martin returned to the district court. She collaterally attacked her conviction with a motion brought under the federal habeas statute, 28 U.S.C. § 2255. As relevant to this appeal, she argued that trial defense counsel had provided constitutionally deficient advice that induced her to plead guilty rather than go to trial. That is, she argued that her attorney violated her Sixth Amendment right to effective assistance of counsel. In particular, Martin alleged in her § 2255 motion – sworn under penalty of perjury – that counsel: [D]id not inform Ms. Martin that the statute required the United States to prove that [she] had used deception as the way to obtain bank property. While advising [her] about the elements of tax fraud, [counsel] did not inform Ms. Martin that the statute required the United States to prove that Ms. Martin knew that [she] had a legal obligation to report, as income on her taxes, the amounts of money [she] had taken from her employers. Aplt. App. I at 80–81. The district court then ordered Martin’s trial defense counsel to provide an affidavit responsive to the allegations. Counsel provided the affidavit, which the Government attached to its filing opposing Martin’s § 2255 motion. The affidavit, however, did not directly rebut many of the 5  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 6 specific allegations in Martin’s verified motion. Rather, it described the representation in more general terms. For example: We met in my office numerous times and discussed the case over the phone. We discussed the crimes charged and the elements of the same. Other than the pleadings and discussions, though, Ms. Martin and I did not review case law together or review the applicable PIK instructions. That said, I had a good faith impression that Ms. Martin understood the charges against her and the proof needed to establish her guilt. Id. at 164. On close of the briefing, the district court acknowledged the statutory requirement that it hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show” the movant is not entitled to relief, 28 U.S.C. § 2255(b). It correctly noted that an evidentiary hearing is unnecessary where either: the movant has failed to allege facts that could warrant relief; or where the factual allegations are contradicted by the record. The district court declined to hold an evidentiary hearing. It did not, however, specify its reasons for not holding a hearing or whether this decision rested on a determination of fact or a determination of law. On the merits, the district court ruled against Martin. Beginning with the challenge to the bank fraud count, the district court ruled that – contrary to Martin’s read of the law – the Government could prove a false statement for the purposes of § 1344(2) bank fraud via an implicit assertion of authority. The district court concluded that “[b]y writing checks from her 6  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 7 employers to pay her personal expenses, [Martin] falsely represented to the banks that she had authority to make those payments.” Aplt. App. I at 203. Thus, Martin’s legal theory failed on its own merits. And the district court reasoned that the alleged failure to advise Martin of this losing legal theory could not constitute deficient performance. The district court then turned to the tax count. It found that counsel had performed deficiently because she told her client, on the record, that the Government need not prove one of the necessary elements of conviction. But the court concluded this did not prejudice Martin. It reasoned: With broad, conclusory language, Defendant argues that the Government could not have proven [the tax count] at trial. *** To meet its burden, the Government must have overcome Defendant’s assertion that she had a “good faith belief that she was not violating any provisions of the tax laws.” The problem with Defendant’s argument is that she has not asserted and cannot articulate how she had a good faith belief that she was not violating the law by willfully failing to report her income. Id. at 204 (alteration adopted and footnote omitted). Because the district court denied Martin’s § 2255 motion, she must be authorized by a certificate of appealability (COA) to appeal. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). A COA should issue where “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing has been made if the petitioner 7  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 8 “demonstrate[s] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282 (2004)). This is neither a simple preview nor rehashing of the merits. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Here, the district court held, “[f]or the reasons explained [elsewhere in the order], Defendant has not made a substantial showing of the denial of a constitutional right.” Aplt. App. I at 209–10. With the final § 2255 order in hand, Martin timely appealed to this court. Her opening brief asked this court to issue a COA that would allow the appeal to proceed. See 28 U.S.C. § 2253(c)(1)(B). This court granted Martin a COA on two issues: 1. On the bank fraud conviction, was the performance of Ms. Martin’s counsel deficient? If so, should the Court of Appeals remand the claim of ineffective assistance of counsel on the bank fraud conviction for the district court to determine whether Ms. Martin was prejudiced by the deficient performance of her counsel? 2. On the conviction for assisting in the filing of a false tax return, should the Court of Appeals remand the claim of ineffective of counsel claim for a determination of prejudice? Doc. 20. 8  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 9 Having granted Martin a COA, this court now exercises jurisdiction under 28 U.S.C. § 1291. We remand for the district court to conduct further proceedings on both the bank fraud and tax counts. III A On appeal, Martin alleges that during the plea phase her counsel was ineffective, in violation of her constitutional rights. The Sixth Amendment secures for criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685–86 (1984). This right “applies to certain steps before trial,” including plea bargaining. Missouri v. Frye, 566 U.S. 134, 140 (2012). Courts apply a familiar two-part test to determine whether counsel provided “assistance [] so defective as to require reversal.” Strickland, 466 U.S. at 687. First, we ask whether counsel performed in a constitutionally deficient manner. United States v. Watson, 766 F.3d 1219, 1225 (10th Cir. 2014). Second, we ask whether that deficient performance resulted in prejudice to the defendant. Id. The first prong – the deficient performance prong – “requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness.” Id. (quoting Lafler v. Cooper, 566 U.S. 156, 163 (2012)). Our review of counsel’s performance is “highly deferential.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (quoting Hooks v. 9  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 10 Workman, 606 F.3d 715, 723 (10th Cir. 2010)). So that we might “eliminate the distorting effects of hindsight,” we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994) (quoting Strickland, 466 U.S. at 689). So long as counsel’s performance is not “completely unreasonable,” it is not constitutionally deficient. Welch v. Workman, 639 F.3d 980, 1011 (10th Cir. 2011) (quoting Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997)). Demonstrating deficiency is not enough on its own to merit relief. A movant must still surmount the second prong: prejudice. Here, a movant must show “that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Watson, 766 F.3d at 1225 (quoting Lafler, 566 U.S. at 163). In the plea context, this means that the movant must show that there is a reasonable probability that, but for counsel’s errors, she “would not have pleaded guilty and would have insisted on going to trial.” Heard v. Addison, 728 F.3d 1170, 1176 (10th Cir. 2013) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To determine the existence of prejudice, courts “make a holistic inquiry into all of the ‘factual circumstances surrounding the plea.’” Id. at 1183 (quoting Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001)). This standard cannot be met by movant’s “bald, post hoc and unsupported statements.” Id. at 1184. 10  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 11 Instead, we are called to “look to contemporaneous evidence to substantiate a defendant’s expressed preferences.” Lee v. United States, 582 U.S. 357, 369 (2017). On appeal, “we review de novo whether counsel’s performance was legally deficient and whether any deficiencies prejudiced the defendant.” Watson, 766 F.3d at 1226 (quoting United States v. Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008)). We typically would review the district court’s underlying factual findings for clear error. Id. However, because the district court did not conduct an evidentiary hearing, we review de novo the entirety of its order on the § 2255 motion – including any factual findings. United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (citing United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)); but see United States v. Sandoval-Flores, 168 F.4th 1330, 1333 n.2 (10th Cir. 2026). B Martin’s first claim pertains to the bank fraud conviction. She argues that her attorney at the plea-bargaining phase failed to advise her that bank fraud required the Government to prove she had made a false statement to a bank. She alleges that she never made such a statement. Thus, she argues, her attorney advised her to plead guilty to a crime that she did not commit. The Government resists this characterization. It argues that Martin’s conduct is properly captured by the statute. 11  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 12 The parties have thus teed up what is – at least facially – a legal question of statutory construction. The bank fraud statute states: Whoever knowingly executes, or attempts to execute, a scheme or artifice – *** 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 [commits a crime against the United States]. 18 U.S.C. § 1344(2). The dispute here turns on the construction of “means of false or fraudulent pretenses, representations, or promises.” The Supreme Court has interpreted this clause in recent memory. See Loughrin v. United States, 573 U.S. 351, 356, 361–66 (2014). In Loughrin, the Court considered a defense argument that the statute requires specific intent to defraud a bank. Id. at 354–55. The Court rejected the challenge, noting that the statute already contains a “significant textual limitation on [its] reach” – the means clause at issue in this case. See id. at 362 (emphasis omitted). The Court interpreted the means clause to be satisfied when “the defendant’s false statement is the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control.” Id. at 363. Where a person forges a check and presents it to a bank teller, the means 12  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 13 clause is satisfied. Id. Where a person forges a check and presents it to a third-party merchant, the clause is still satisfied. In either instance, “the forged or altered check – i.e., the false statement – serves in the ordinary course as the means (or to use other words, the mechanism or instrumentality) of obtaining bank property.” Id. at 364. But where a person induces their victim to purchase a counterfeit handbag with a valid check, there is no bank fraud. This is because “the lie that a knock-off is a Louis Vuitton” is not the means that convinced the bank to part with its property. Id. at 364–65. Indeed, in such circumstances, no false statement was made to a financial institution. Here, there was no fraudulent check written, which favors Martin’s Loughrin argument. However, there is also no case from this circuit applying Loughrin as expansively as Martin advocates. The Government responds that the checks Martin presented to the banks violated the bank fraud statute because they contained an “implied misrepresentation” sufficient to satisfy the means clause. Resp. Br. at 24. That is, the Government does not argue that Martin lacked general authority to write checks against her employers’ accounts. Rather, it argues that Martin implied to the bank when she presented the checks that she had particularized authority to direct the transactions via checks that transferred money to her accounts and those of her creditors. The obstacle 13  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 14 for the Government is that the Supreme Court has previously knocked down a similar theory. In Williams v. United States, the Court held that valid checks written against insufficient accounts do not contain false statements. 458 U.S. 279, 290 (1982). There, the Court did not credit an argument that the checks contain an implied representation that the account owner “currently has funds on deposit sufficient to cover the face value of the check.” Id. at 285. There is no false statement “for a simple reason: technically speaking, a check is not a factual assertion at all.” Id. at 284. Although Williams dealt with a different statute containing different language, its reasoning may also be superimposed on Loughrin. See United States v. Doherty, 969 F.2d 425, 427–428 (7th Cir. 1992) (concluding that Williams “applies with equal force” to § 1344(2)). Indeed, in Loughrin, the Supreme Court favorably credited the consensus of our sister circuits that the Government may not prosecute check kiting – that is, intentionally writing checks against empty accounts – under § 1344(2) because “such schemes do not involve any false representations.” 573 U.S. at 358 n.4 (citing Doherty, 969 F.2d at 427–428; and Williams, 458 U.S. at 284–285); see also Doherty, 969 F.2d at 428 (collecting cases). We read this Loughrin footnote to indicate that so-called “implied misrepresentations,” without more, may not be prosecuted under § 1344(2). 14  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 15 In any event, Martin does not necessarily need her proffered legal theory to prevail at this point to be afforded relief for her ineffective assistance claim. Rather, because her claim alleges ineffective assistance of counsel, she needs to show that counsel performed in a deficient manner. Strickland, 466 U.S. at 690–91. And counsel “has a duty to conduct reasonable investigations,” including the research of “‘relevant law to make an informed decision whether certain avenues will prove fruitful.’” Heard, 728 F.3d at 1179 (quoting United States v. Demeree, 108 F. App’x 602, 605 (10th Cir. 2004)). We have previously held that minimally competent counsel would recognize a “likely defense based on the statute’s text” and prior cases suggesting “the possibility of asserting viable defenses to culpability.” Id. at 1180. So, although a defense attorney is “generally not obligated to anticipate changes in the law,” they may be obligated to at least consider “an argument that is sufficiently foreshadowed in existing case law.” Bridges v. United States, 991 F.3d 793, 804 (7th Cir. 2021); accord United States v. Carthorne, 878 F.3d 458, 465–66 (4th Cir. 2017); United States v. Juarez, 672 F.3d 381, 387 (5th Cir. 2012). And because we do not apply hindsight in this analysis, an attorney may perform deficiently by failing to disclose to the client a credible defense that may ultimately be a losing argument. Heard, 728 F.3d at 1178, 1183. As a general matter, we “show 15  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 16 heightened deference to an attorney’s strategic decisions supported by professional judgment.” Id. at 1183 (quotation omitted). But where “a failure to disclose a defense does not reflect sound professional judgment, such deference is not appropriate.” Id. (alterations adopted) (quoting Dando v. Yukins, 461 F.3d 791, 799 (6th Cir. 2006)). Setting aside any benefits that could flow from hindsight, we first ask: was the Loughrin argument or possible defense sufficiently foreshadowed or knowable during the time of the plea bargaining in this case? We conclude the answer is yes. A diligent defense attorney should have discovered that the statutory text and the Supreme Court’s interpretation of it, which predated Martin’s guilty plea, would have presented a possible path to acquittal for their client. At the time of Martin’s plea, the most recent Supreme Court interpretation of bank fraud – in Loughrin – held that the statute had a “significant textual limitation” that applies where a false statement does not induce the victim bank to part with its money. And, in the same opinion, the Court cited to a line of caselaw holding that – in a closely related context – checks do not contain implicit representations. To counter this point, the Government points us to United States v. McDonald, where we affirmed a § 1344(2) conviction on a theory of “implied false representation.” See 209 F. App’x 748, 751 (10th Cir. 2006). But McDonald predated Loughrin and – as an unpublished case – was never 16  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 17 binding on this court or the district court. Indeed, we question whether McDonald can even be squared with Williams’ holding that checks do not make factual assertions in and of themselves. But again, we do not need to decide definitively at this point that Martin’s reading of § 1344(2) is correct. Nonetheless, we conclude that, at the very least, Martin has put forth a strong argument or theory of defense that existed at the time she pleaded guilty to bank fraud. 2 The dissent maintains that the implied misrepresentation theory still applies in this circuit. And it is right that we lack any precedents adopting Ms. Martin’s underlying theory. See Dissent at 9. But the Supreme Court does not. In Loughrin, the defense argued that the Supreme Court’s reading 2 Martin has directed us to out-of-circuit cases decided after the time of her plea bargaining in which courts have applied her theory. See United States v. Robinson, 161 F.4th 1069, 1075–76 (7th Cir. 2025) (as amended Jan. 28, 2026) (remanding for acquittal on an implied misrepresentation theory because “a check is not a factual assertion at all”) (quoting Williams v. United States, 458 U.S. 279, 284 (1982)); United States v. McDonald, No. 5:21-CR-00012, 2024 WL 244941, at *7–8 (W.D. Va. Jan. 23, 2024) (granting judgment of acquittal to employee who wrote checks outside the scope of her employer’s authorization). Were we deciding the issue in a direct appeal, we would consider the reasoning of Robinson and McDonald persuasive. But because we disavow hindsight in this procedural posture, the usefulness of such authority is limited. However, it does have some weight in demonstrating that the foregone argument was reasonably available to Martin’s counsel; after all, other defense attorneys were contemporaneously presenting it. 17  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 18 of the statute would render § 1344(2) overly broad. See 573 U.S. at 358 n.4. The Court, though, rebutted this argument: But that is not right. The Courts of Appeals, for example, have unanimously agreed that the Government can prosecute check kiting (i.e., writing checks against an account with insufficient funds in a way designed to keep them from bouncing) only under Clause (1), because such schemes do not involve any false representations. Id. (citations omitted). In support of this point, the Court cited Doherty, 969 F.2d at 427–428 and noted that case’s citation of Williams, 458 U.S. at 284–285. And, in Doherty itself, the Seventh Circuit squarely held that Williams’ holding “applies with equal force to § 1344(2).” 969 F.2d at 428. Whether or not the Supreme Court meant to adopt Doherty whole cloth, the best reading of Loughrin is that check kiting does not involve false representations because its holding in Williams also applies to § 1344(2). Also, the dissent points out that “Loughrin itself didn’t address whether bank fraud could be committed by concealment or implied misrepresentations,” Dissent at 11. But it makes no difference that the question presented in Loughrin differs from the precise point at issue here. Loughrin spoke about this issue, even if not in a directly dispositive holding. We are bound by all the Supreme Court’s published statements of law, no 18  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 19 matter whether they are “outright holdings” or purported “dicta.” See, e.g., United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007). The dissent places significant weight on this court’s decision in United States v. Bonnett, 877 F.2d 1450 (10th Cir. 1989). To the extent that the dissent is correct to read Bonnett to hold that Williams does not apply to the bank fraud statute, see Dissent at 9-10, the Supreme Court’s reasoning in Loughrin has abrogated that holding. 3 But that is not the best reading of Bonnett in any event. In Bonnett, the defendants engaged in a classic check kiting scheme, bolstered by a larger fraudulent scheme that included the knowledge and actions of bank insiders – the bank’s Chief Executive Officer and a cashier. See 877 F.2d at 1453, 1457. Thus, the misrepresentations were “not an implied representation that the checks were good, as in Williams; rather it was the conduct of the conspirators in acting as if the checks were good and treating the checks in all respects as if they were drawn on collectable funds, with the knowledge the [] checks were worthless.” Id. at 1457. In Bonnett, the 3 The dissent seeks to bolster its reading of Bonnett with citation to mail and wire fraud cases from our sister circuits that have resulted in convictions for misrepresentations by conduct. See Dissent at 7 n.3 (citing cases). But we have previously applied Williams in the mail fraud context to hold that a check cannot itself create a false representation. See United States v. Cronic, 900 F.2d 1511, 1516–17 (10th Cir. 1990), overruled on other grounds by Cleveland v. United States, 531 U.S. 12, 25–26 (2000). 19  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 20 defendants knew the checks would “be dishonored by the payor banks upon presentment” and their scheme sought to benefit from the time that it would take the victim bank to realize that the checks were worthless. Id. Thus, the banks were induced to part with their property by ongoing conduct that would “artificially inflate Mr. Bonnett’s bank balances” and convince them to honor checks that would otherwise be refused. Id. Bonnett has vastly different facts than Loughrin. However, to the extent that Bonnett can be squared with Loughrin, it must be read to require that conduct and false communications that induce the bank to part with its property must be more than simply presenting a check. That is, the mere writing and depositing of valid checks will not suffice. This conclusion does not end the analysis, however. We still must determine whether counsel exercised sound professional judgment in failing to disclose the argument or defense theory to Martin, noting again that we must begin with a presumption that counsel’s conduct was reasonable. Because of the undeveloped factual record, the answer to this question is unclear. Given the uncertainty of the record on this point, and the strength of Martin’s argument that a viable defense theory was available to be discovered and employed at the time of her guilty plea, Martin has sufficiently alleged deficient performance to entitle her to an evidentiary hearing on the issue. 20  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 21 In her motion to vacate, Martin alleged that her attorney at the plea- bargaining stage “did not inform Ms. Martin that the statute required the United States to prove that Ms. Martin had used deception as the way to obtain bank property.” Aplt. App. I at 80–81. In so many words, Martin has averred that she was not made aware of the Loughrin argument now presented. Counsel’s affidavit does not give any indication that she knew about or had a strategic reason for failing to disclose the Loughrin defense to Martin. It does, however, provide some information that would bear on deficiency. It states that counsel reviewed discovery with her client, made an accounting expert available to the client, and discussed the Government’s case with her client. The affidavit also provides that Martin and her attorney “discussed the crimes charged and the elements of the same.” Aplt. App. I at 164. This is not enough to resolve the question of deficiency. Martin’s argument centers on the elements of the crime charged. That the attorney discussed the elements does not tell us whether the attorney explored the possibility that the elements were not met based on the Loughrin theory of defense. We also disagree with the dissent’s view that there is no evidence to show that Martin’s lawyer “fail[ed] to research a line of attack,” see Dissent at 4, which the dissent finds to be “conclusory.” Id. Counsel’s affidavit 21  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 22 provides some evidence; it states that “Ms. Martin and I did not review case law together or review the applicable PIK instructions.” Id. Although counsel does not define “PIK” in her affidavit, this abbreviation surely references the Pattern Instructions for Kansas. However, Martin was charged with a federal crime, so the state-law pattern instructions would shed no light on the elements of the federal bank fraud statute. A misunderstanding of this type, which is reasonably inferred from counsel’s affidavit, weighs in favor of Martin’s argument that she received constitutionally ineffective assistance of counsel. But, because the affidavit and sworn pleading do not make clear the totality of the facts bearing on the issue, an evidentiary hearing is necessary to resolve it. The dissent reasons that remand is unnecessary and it would be appropriate to decide the case on the evidentiary record already developed. But our review is de novo. Barrett, 797 F.3d at 1213. And in the district court, Martin was entitled to an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Based on the existing record, we cannot conclude that relief was conclusively unavailable. Martin is thus entitled to an evidentiary hearing. See United States v. Aguayo-Montes, 169 F.4th 1205, 1216–17 (10th Cir. 2026). 22  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 23 We therefore remand for the district court to hold an evidentiary hearing to determine: 1) whether counsel considered this highly plausible defense at all; 2) whether she discussed it with the client; and 3) whether this would have affected the client’s decision to go to trial (i.e., prejudice). C Next, we turn to the tax count. The challenge again arises on an ineffective assistance of counsel claim under § 2255, so we again apply Strickland’s two prongs, the first of which is deficiency. The district court held that counsel’s performance was constitutionally deficient, and the parties do not contest this finding on appeal. Nonetheless, because our review is de novo, we will consider the first Strickland prong of deficiency. Before a person may be convicted of aiding or assisting in the preparation of a false tax return, the Government must prove, inter alia, that the person acted “[w]illfully.” 26 U.S.C. § 7206(2). This “requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that [s]he voluntarily and intentionally violated that duty.” United States v. Ambort, 405 F.3d 1109, 1114 (10th Cir. 2005) (quoting Cheek v. United States, 498 U.S. 192, 201 (1991)). In this case, Martin signed a written plea agreement that did not detail the elements of the crimes of conviction. Then, at the change of plea 23  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 24 hearing, the court elicited admissions from Martin to support the elements of the crime. However, Martin was unable to admit to willfulness. Instead, she told the court: “[A]t the time I did it, I didn’t know it was illegal.” Aplt. App. II at 117. Government counsel soon interjected: I think that if the intent to commit those acts or committing those acts intentionally was present and is admitted, then that covers the knowledge element without using the specific verbiage of knowing it’s illegal, which is a little bit more colloquial I guess. Id. at 118. Defense counsel agreed with the Government that intentionally committing the acts would suffice. After counsel conferred with Martin, the court proceeded as if intent to commit the acts alone was sufficient to meet the element and accepted the plea. But it is not. Congress drafted § 7206(2) such that a conviction could only be won on proof of “specific intent to violate the law.” Cheek, 498 U.S. at 200. Thus, the government must prove “actual knowledge of the pertinent legal duty” as well as the voluntary and intentional violation of that duty. Id. at 201–02. If a criminal defendant “didn’t know it was illegal” to undertake a certain action, Aplt. App. II at 117, then they have not acted willfully and thus have not violated § 7206(2), see Ambort, 405 F.3d at 1114. In her motion before the district court, Martin alleged that her attorney failed to advise her that the Government would need to prove this 24  Appellate Case: 24-3140 Document: 46-1 Date Filed: 09/08/2026 Page: 25 element of willfulness. The district court ruled for Martin on the first Strickland prong, finding that counsel’s statements at the change