18 u.s.c. § 1343 - the amazon post - chevron's views and...

Effective: January 7, 2008

United States Code Annotated CurrentnessTitle 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos)Chapter 63. Mail Fraud and Other Fraud Offenses (Refs & Annos)

§ 1343. Fraud by wire, radio, or television

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money orproperty by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be trans-mitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings,signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under thistitle or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefitauthorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declaredmajor disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Reliefand Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be finednot more than $1,000,000 or imprisoned not more than 30 years, or both.

CREDIT(S)

(Added July 16, 1952, c. 879, § 18(a), 66 Stat. 722; amended July 11, 1956, c. 561, 70 Stat. 523; Aug. 9, 1989,Pub.L. 101-73, Title IX, § 961(j), 103 Stat. 500; Nov. 29, 1990, Pub.L. 101-647, Title XXV, § 2504(i), 104 Stat.4861; Sept. 13, 1994, Pub.L. 103-322, Title XXXIII, § 330016(1)(H), 108 Stat. 2147; July 30, 2002, Pub.L.107-204, Title IX, § 903(b), 116 Stat. 805; Jan. 7, 2008, Pub.L. 110-179, § 3, 121 Stat. 2557.)

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1952 Acts. House Report No. 1750, see 1952 U.S. Code Cong. and Adm. News, p. 2234.

1956 Acts. House Report No. 2385, see 1956 U.S. Code Cong. and Adm. News, p. 3091.

1989 Acts. House Report No. 101-54(Parts I to VII) and House Conference Report No. 101-222, see 1989 CodeCong. and Adm. News, p. 86.

1990 Acts. House Report Nos. 101-681(Parts I and II) and 101-736, Senate Report No. 101-460, and Statementby President, see 1990 U.S. Code Cong. and Adm. News, p. 6472.

18 U.S.C.A. § 1343

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report No. 103-711, see 1994 U.S.Code Cong. and Adm. News, p. 1801.

2002 Acts. House Conference Report No. 107-610 and Statement by President, see 2002 U.S. Code Cong. andAdm. News, p. 542.

2008 Acts. Senate Report No. 110-69, see 2007 U.S. Code Cong. and Adm. News, p. 847.

Amendments

2008 Amendments. Pub.L. 110-179, § 3, inserted “occurs in relation to, or involving any benefit authorized,transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major dis-aster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief andEmergency Assistance Act (42 U.S.C. 5122)), or” after “If the violation”.

2002 Amendments. Pub.L. 107-204, § 903(b), substituted “20 years, or both” for “five years, or both”.

1994 Amendments. Pub.L. 103-322, § 330016(1)(H), substituted “under this title” for “not more than $1000”.

1990 Amendments. Pub.L. 101-647 substituted “30 years” for “20 years”.

1989 Amendments. Pub.L. 101-73 added provision that if the violation affects a financial institution, such per-son shall be fined not more than $1,000,000 or imprisoned not more than 20 years, or both.

1956 Amendments. Act July 11, 1956 substituted “transmitted by means of wire, radio, or television communic-ation in interstate or foreign commerce” for “transmitted by means of interstate wire, radio, or television com-munication”.

Severability of Provisions

If any provision of Pub.L. 101-73 or the application thereof to any person or circumstance is held invalid, the re-mainder of Pub.L. 101-73 and the application of the provision to other persons not similarly situated or to othercircumstances not to be affected thereby, see section 1221 of Pub.L. 101-73, set out as a note under section 1811of Title 12, Banks and Banking.

CROSS REFERENCES

Authority to regulate golden parachute and indemnification payments, see 12 USCA § 2277a-10b.“Federal health care offense” defined as in this section for purposes of preventing health care fraud and

18 U.S.C.A. § 1343


abuse, see 18 USCA § 24.Forfeiture penalty issued for violation of this section, see 47 USCA § 503.“Racketeering activity” defined to be any act indictable under this section, see 18 USCA § 1961.Registration revoked for violation of this section by,

Commodity dealer, see 7 USCA § 12a.Investment adviser, see 15 USCA § 80b-3.Securities broker or dealer, see 15 USCA § 78o.

Requirements governing insured credit unions minimum 10-year prohibition period for certain offenses,see 12 USCA § 1785.Revocations of licenses and permits of, and cease and desist orders against, violators of this section, see47 USCA § 312.

FEDERAL SENTENCING GUIDELINES

See Federal Sentencing Guidelines §§ 2C1.7, 2F1.1, 18 USCA.

LAW REVIEW COMMENTARIES

Aiding and abetting under civil RICO. Jed S. Rakoff, 211 N.Y.L.J. 3 (May 12, 1994).

Carpenter v. United States: Securities trading, mail fraud and confidential business information--new li-ability for outsiders? Note, 20 Pac.L.J. 839 (1989).

Civil RICO: The insurers fight back. Arnold D. Fielkow and Stephen P. Eisenberg, 21 Tort & Ins.L.J. 1(1985).

Commanding respect: Criminal sanctions for environmental crimes. Eva M. Fromm, 21 St.Mary's L.J. 821(1990).

Computer crime: The federal vs. state approach to solving the problem. Robert D. Starkman, 65 Mich.B.J.314 (1986).

Consumer fraud and the elderly: Need for a uniform system of enforcement and increased civil and crim-inal penalties. 4 Elder L.J. 201 (1996).

Crimes by health care providers. Pamela H. Bucy, 1996 U.Ill.L.Rev. 589.

Current guide to civil RICO in New York federal courts. Roger T. Creager, 66 N.Y.St.B.J. 18 (Nov. 1994).

Embedded alert software: Weapon against piracy or computer abuse? Robert C. Scheinfeld, 216 N.Y.L.J.1 (Aug. 13, 1996).

Government contractors, beware: Civil and criminal penalties abound for defective pricing. Steven D.Overly, 20 Loy.L.A.L.Rev. 597 (1987).

Holmes v. Securities Investor Protection Corp.: Standing to sue under Section 1464(c) of RICO for the se-curities fraud plaintiff. Antonella M. Madonia, 18 Del.J.Corp.L. 923 (1993).

18 U.S.C.A. § 1343


Industrial espionage is a crime. F.L. Peter Stone, 7 Del.Law. 50 (1989).

Information as property: Do Ruckelshaus and Carpenter signal a changing direction in intellectual prop-erty law? Pamela Samuelson, 38 Cath.U.L.Rev. 365 (1989).

Insider abuse and criminal misconduct in financial institutions: A crisis? Note, 64 Notre Dame L.Rev. 222(1989).

Insider trading--Are the proposed cures appropriate for the disease? Aulana L. Peters and Jacqueline P.Higgs, 10 L.A.Law. 12 (Nov. 1987).

Intra-corporate mail and wire fraud: Criminal liability for fiduciary breach. Note, 94 Yale L.J. 1427(1985).

Legal prevention of equine insurance fraud--How we can stop the killing game. 22 Ohio N.U.L.Rev. 845(1996).

Mail and Wire Fraud. Laura A. Eilers, and Harvey B. Silikovitz, 31 Am.Crim.L.Rev. 703 (1994).

Maybe it should just be called federal fraud: The changing nature of the mail fraud statute. Peter J. Hen-ning, 36 B.C.L.Rev. 435 (1995).

Prosecuting failed attempts to fix prices as violations of the mail and wire fraud statutes. 73 Wash.U.L.Q.333 (1995).

Restitution for victims. Robert G. Morvillo, 211 N.Y.L.J. 3 (April 5, 1994).

RICO: A new weapon in intellectual property law? Ronald B. Coolley, 65 Chi.B.Rec. 370 (1984).

State of “Willfullness” in white-collar prosecutions. Linda Imes and David Spears, 212 N.Y.L.J. 1 (Nov.1, 1994).

The proper application of civil RICO to patent fraud. Steven Fasman, 96 Yale L.J. 1323 (1987).

What victims of computer crime should know and do. Stephen Fishbein, 210 N.Y.L.J. 1 (Nov. 12, 1993).

White collar crime and punishment: Reflections on Michael, Martha, and Milberg Weiss. J. Kelly Strader,15 Geo. Mason L. Rev. 45 (2007).

“Willful” intent in criminal securities cases. Jed S. Rakoff, 213 N.Y.L.J. 3 (May 11, 1995).

Wrongful discharge: Can RICO come to the rescue? Robert G. Gough, 61 Fla.B.J. 91 (June 1987).

LIBRARY REFERENCES

American Digest System

Telecommunications 362.

Corpus Juris Secundum

18 U.S.C.A. § 1343


CJS Ambassadors and Consuls § 13, Immunity Under Vienna Convention on Diplomatic Relations.CJS Attorney and Client § 72, Criminal Offenses and Conviction Thereof.CJS Banks and Banking § 797, Prosecutions.CJS Bribery § 8, Act Done or to be Done.CJS Conspiracy § 261, Fraud by Mail or Wire.CJS Criminal Law § 311, Prosecution for Part of Single Crime.CJS Criminal Law § 809, Conspirators.CJS Criminal Law § 1135, Voluminous Writings--Under Federal Rules of Evidence.CJS Criminal Law § 1433, State of Mind, Intent, or Belief.CJS Criminal Law § 1540, Documentary Evidence.CJS Criminal Law § 1718, On Credibility and Character of Witnesses.CJS Criminal Law § 2011, Cooperation or Remorse.CJS Criminal Law § 2374, Sentences.CJS Criminal Law § 2498, Losses Recoverable.CJS Criminal Law § 2502, Amount of Payment--Reduction in Amount; Compensation from Other Sources.CJS Federal Civil Procedure § 307, Pleading Particular Matters--Fraud, Mistake, and Condition of Mind.CJS Indictments and Informations § 261, Constructive Amendment.CJS International Law § 66, Privileges and Immunities--United Nations and Its Personnel.CJS Postal Service & Offenses Against Postal Laws § 48, Mail Fraud Statute.CJS Postal Service & Offenses Against Postal Laws § 49, Gist and Elements of Offense.CJS Postal Service & Offenses Against Postal Laws § 50, Scheme to Defraud.CJS Postal Service & Offenses Against Postal Laws § 53, Intent to Defraud.CJS Postal Service & Offenses Against Postal Laws § 55, Materiality of Misrepresentation or DeceptiveAct.CJS Postal Service & Offenses Against Postal Laws § 65, Weight and Sufficiency of Evidence.CJS RICO (Racketeer Influenced & Corrupt Orgs.) § 35, Pleading.CJS Telecommunications § 129, Scheme or Artifice.CJS Telecommunications § 130, Mens Rea.CJS Telecommunications § 131, Transmission.CJS Telecommunications § 132, Connection Between Accused and Transmission.CJS Telecommunications § 133, Connection Between Transmission and Scheme or Artifice.CJS Telecommunications § 134, Effect of Scheme or Artifice.CJS Telecommunications § 135, Aiders and Abettors.CJS Threats and Unlawful Communications § 30, Interstate Communications.CJS United States § 163, Money Laundering.

RESEARCH REFERENCES

ALR Library

33 ALR, Fed. 2nd Series 477, Downward Adjustment for Acceptance of Responsibility Under U.S.S.G. § 3e1.1,18 U.S.C.A.--Fraud Offenses.

66 ALR, Fed. 2nd Series 1, Federal Criminal Prosecution Against Medical Practitioner for Fraud in ConnectionWith Claims Under Medicaid, Medicare, or Similar Welfare Program Providing Medical Services.

18 U.S.C.A. § 1343


1 ALR, Fed. 2nd Series 415, Extraterritorial Criminal Jurisdiction of Federal Courts.

3 ALR, Fed. 2nd Series 179, When Has Federal Prosecutor Breached Plea Agreement--Promises Related toDownward Adjustment of Sentence in Fraud and Threat Cases.

4 ALR, Fed. 2nd Series 279, Application of Common Law Revenue Rule by Federal Courts.

4 ALR, Fed. 2nd Series 365, Legal and Procedural Issues in Prosecutions Under Federal Statutes Relating to Of-fense of Identity Theft.

9 ALR, Fed. 2nd Series 193, Proper Procedure for Determining Whether Alleged Statement or Report of Gov-ernment Witness Should be Produced on Accused's Demand, Under Jencks Act (18 U.S.C.A. § 3500) and Fed.R. Crim. P. 26.2.

10 ALR, Fed. 2nd Series 1, Comment Note: Construction and Application of United States Supreme Court Hold-ing of U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), Rendering U.S. SentencingGuidelines...

12 ALR, Fed. 2nd Series 599, Propriety of Instruction of Jury on “Conscious Avoidance” in Federal Fraud Pro-secutions.

13 ALR, Fed. 2nd Series 529, When Has Federal Prosecutor Breached Plea Agreement--Promises Not Related toDownward or Upward Adjustment of Sentence in Fraud and Threat Cases.

15 ALR, Fed. 2nd Series 315, Construction and Application of Whistleblower Provision of Sarbanes-Oxley Act,18 U.S.C.A. § 1514a(A)(1).

16 ALR, Fed. 2nd Series 113, Downward Departure Under § 5h1.4 of United States Sentencing Guidelines(U.S.S.G.) Permitting Downward Departure for Extraordinary Physical Impairment.

22 ALR, Fed. 2nd Series 417, Construction and Application of U.S.S.G. § 3B1.1(B), 18 U.S.C.A., ProvidingSentencing Enhancement for Manager or Supervisor of Criminal Activity--Fraud Offenses.

32 ALR, Fed. 2nd Series 445, Construction and Application of U.S.S.G. § 3b1.1(A) Providing Sentencing En-hancement for Organizer or Leader of Criminal Activity--Fraud Offenses.

36 ALR, Fed. 2nd Series 95, Validity, Construction, and Application of U.S.S.G. § 5k2.8, Providing for UpwardSentence Departure for Extreme Conduct.

18 U.S.C.A. § 1343


37 ALR, Fed. 2nd Series 449, Construction and Application of U.S.S.G. § 2x1.1, Providing SentencingGuideline for Conspiracy Not Covered by Specific Offense Guideline.

43 ALR, Fed. 2nd Series 659, Construction and Application of International Organizations Immunities Act, 22U.S.C.A. §§ 288 et seq. (Ioia).

56 ALR, Fed. 2nd Series 619, Prosecution Based on Interpositioning, Trading Ahead, or Front Running in Con-nection With Securities Transaction.

62 ALR, Fed. 2nd Series 1, Securities Fraud Under § 10(B) of Securities Exchange Act of 1934, as Amended, 15U.S.C.A. § 78j(B), and Securities and Exchange Commission (Sec) Rule 10b-5, 17 C.F.R. s240.10b-5--U.S. Su-preme Court...

63 ALR, Fed. 2nd Series 493, What Constitutes “Aggravated Felony” for Which Alien Can be Deported or Re-moved Under § 237(A)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. § 1227(A)(2)(A)(iii))--Fraudor Deceit Under 8 U.S.C.A....

10 ALR, Fed. 724, Consideration Of, or Failure to Raise or Consider, Question on Appeal from Conviction or onPostconviction Remedy, as Precluding Its Consideration on Subsequent Motion to Vacate Sentence Under...

16 ALR, Fed. 825, Validity, Construction, and Application of 18 U.S.C.A. § 1014 and Similar Predecessor Stat-utes Making it Federal Offense to Make False Statement or Report, or to Overvalue Property, for Purpose of In-fluencing Action...

21 ALR, Fed. 655, Direct Review by United States Court of Appeals of Duration of Sentence Imposed by Dis-trict Court in Federal Criminal Prosecution, Where Duration Does Not Exceed Statutorily Authorized Maxim-um.

27 ALR, Fed. 407, Construction and Application of Provision of Rule 9(B), Federal Rules of Civil Procedure,that Circumstances Constituting Fraud or Mistake be Stated With Particularity.

29 ALR, Fed. 826, Validity, Construction, and Application of 18 U.S.C.A. § 1962, Making Unlawful CertainActs Involving “Pattern of Racketeering Activity” or “Collection of an Unlawful Debt”.

41 ALR, Fed. 874, Construction and Application of Rule 11(C) of Federal Rules of Criminal Procedure, asAmended in 1975, Requiring Court to Give Certain Advice to Defendant Before Accepting Plea of Guilty orNolo...

44 ALR, Fed. 627, Admissibility of Statement by Coconspirator Under Rule 801(D)(2)(E) of Federal Rules of

18 U.S.C.A. § 1343


Evidence.

46 ALR, Fed. 735, Marital Privilege Under Rule 501 of Federal Rules of Evidence.

49 ALR, Fed. 622, What Constitutes a “Material” Fact for Purposes of 18 U.S.C.A. § 1001, Relating to Falsify-ing or Concealing Facts in Matter Within Jurisdiction of United States Department or Agency.

52 ALR, Fed. 818, What is an “Enterprise,” as Defined at 18 U.S.C.A. § 1961(4), for Purposes of the RacketeerInfluenced and Corrupt Organizations (RICO) Statute (18 U.S.C.A. §§ 1961 et seq.).

53 ALR, Fed. 679, Sufficiency of Description of Business Records Under Fourth Amendment Requirement ofParticularity in Federal Warrant Authorizing Search and Seizure.

69 ALR, Fed. 373, Delay Between Seizure of Personal Property by Federal Government and Institution of Pro-ceedings for Forfeiture Thereof as Violative of Fifth Amendment Due Process Requirements.

75 ALR, Fed. 806, Propriety of Denial of Pretrial Bail Under Bail Reform Act (18 U.S.C.A. §§ 3141 et seq.).

76 ALR, Fed. 700, Evidence Offered by Defendant at Federal Criminal Trial as Inadmissible, Under Rule 403 ofFederal Rules of Evidence, on Ground that Probative Value is Substantially Outweighed by Danger of UnfairPrejudice, Confusion...

79 ALR, Fed. 673, What is “A Substantial Question of Law or Fact Likely to Result in Reversal or an Order fora New Trial” Pursuant to 18 U.S.C.A. § 3143(B)(2) Respecting Bail Pending Appeal.

89 ALR, Fed. 770, Validity, Construction, and Effect of Domestic Currency Transaction Reporting RequirementBased Upon 31 U.S.C.A. § 5313(a).

99 ALR, Fed. 888, What Constitutes Violation of Federal Bank Fraud Statute (18 U.S.C.A. § 1344).

100 ALR, Fed. 156, What Constitutes Playing “Mitigating Role” in Offense Allowing Decrease in OffenseLevel Under United States Sentencing Guideline § 3B1.2, U.S.S.G.

111 ALR, Fed. 547, Validity and Construction of Provision of 18 U.S.C.A. § 3553(E) and U.S. SentencingGuideline § 5K1.1, Providing that Sentencing Court Make Downward Departure from Sentencing Guidelines forDefendant's...

114 ALR, Fed. 323, Who May be Liable Under “Misappropriation Theory” of Imposing Duty to Disclose or Ab-

18 U.S.C.A. § 1343


stain from Trading Under § 10(B) of Securities Exchange Act of 1934 (15 U.S.C.A. § 78j(B)) and...

114 ALR, Fed. 355, What Constitutes Unusually “Vulnerable” Victim Under Sentencing Guideline § 3A1.1 Per-mitting Increase in Offense Level.

118 ALR, Fed. 585, Determination of Loss Caused by Crime Involving Fraud or Deceit, Under United StatesSentencing Guidelines § 2F1.1 (U.S.S.G.).

121 ALR, Fed. 323, Increase in Base Offense Level Under Sentencing Guidelines § 3B1.3 (U.S.S.G. § 3B1.3)for Abuse of Position of Public or Private Trust Significantly Facilitating Commission or Concealment Of...

121 ALR, Fed. 525, Validity, Construction, and Application of 18 U.S.C.A. § 1956, Which Criminalizes MoneyLaundering.

122 ALR, Fed. 281, Propriety of Increase of Offense Level Under Sentencing Guideline § 3B1.3 for Use of“Special Skill” in Commission or Concealment of Offense.

127 ALR, Fed. 67, Grounds for Disqualification of Criminal Defendant's Chosen and Preferred Attorney in Fed-eral Prosecution.

128 ALR, Fed. 483, When Are Prior Offenses “Related” Under United States Sentencing Guideline § 4A1.2 Soas to be Treated Together for Sentencing.

128 ALR, Fed. 593, Downward Departure Under § 5K2.13 of United States Sentencing Guidelines (U.S.S.G.)Permitting Downward Departure for Defendants With Significantly Reduced Mental Capacity Convicted ofNonviolent...

132 ALR, Fed. 525, Test of “Dual Criminality” Where Extradition to or from Foreign Nation is Sought.

135 ALR, Fed. 367, When is Considered Property “Involved In” Money Laundering Offense, and Thus Subjectto Civil or Criminal Forfeiture, for Purposes of Money Laundering Control Act (18 U.S.C.A. § 981(A)(1)(A)And...

144 ALR, Fed. 615, Construction and Application of § 2C1.1 of United States Sentencing Guidelines (U.S.S.G.§ 2C1.1) Pertaining to Offenses Involving Public Officials Offering, Giving, Soliciting, or Receiving Bribes, orExtortion...

145 ALR, Fed. 559, Downward Departure from United States Sentencing Guidelines (U.S.S.G. §§ 1A1.1 et seq.)Based on Extraordinary Family Circumstances.

18 U.S.C.A. § 1343


156 ALR, Fed. 361, Statute of Limitations in Civil Actions for Damages Under the Racketeer Influenced andCorrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961-1968.

168 ALR, Fed. 375, When Does Forfeiture of Real Property Violate Excessive Fines Clause of Eighth Amend-ment--Post-Austin Cases.

172 ALR, Fed. 109, Validity, Construction, and Application of 18 U.S.C.A. § 1346, Providing That, for Pur-poses of Some Federal Criminal Statutes, Term “Scheme or Artifice to Defraud” Includes Scheme or Artifice toDeprive Another Of...

174 ALR, Fed. 101, Validity, Construction, and Application of Computer Fraud and Abuse Act (18 U.S.C.A. §1030).

177 ALR, Fed. 609, Validity, Construction, and Application of Title I of Economic Espionage Act of 1996 (18U.S.C.A. §§ 1831 et seq.).

181 ALR, Fed. 679, Construction and Application of Federal Sentencing Guideline § 3b1.4 Providing for En-hancement for Use of Minor.

185 ALR, Fed. 493, Construction and Operation of “Willfulness” Requirement of U.S.S.G., § 3c1.1, Pertainingto Obstructing or Impeding the Administration of Justice.

187 ALR, Fed. 325, Validity, Construction, and Application of Mandatory Predeportation Detention Provisionof Immigration and Nationality Act (8 U.S.C.A. § 1226(C)) as Amended.

198 ALR, Fed. 427, Admissibility of Summaries or Charts of Writings, Recordings, or Photographs Under Rule1006 of Federal Rules of Evidence.

198 ALR, Fed. 575, When Has Federal Prosecutor Breached Plea Agreement--Promises Related to Upward Ad-justment of Sentence in Fraud and Threat Cases.

2003 ALR, Fed. 1, Construction and Application of Garmon Preemption Doctrine by Federal Courts.

164 ALR, Fed. 61, Downward Departure from United States Sentencing Guidelines (U.S.S.G. §§ 1a1.1 et seq.)Based on Aberrant Behavior.

130 ALR, Fed. 323, Construction and Application of United Sentencing Guideline § 2§ 1.1 (U.S.S.G. § 2§ 1.1),Pertaining to Sentencing for Money Laundering.

18 U.S.C.A. § 1343


120 ALR, Fed. 331, Violations and Enforcement of Food Stamp Act of 1964 (7 U.S.C.A. §§ 2011 et seq.).

107 ALR, Fed. 136, Construction and Application of 18 U.S.C.A. § 1006, Regulating Federal Credit InstitutionEntries, Reports, and Transactions.

103 ALR, Fed. 422, Propriety, Under 18 U.S.C.A. § 2517(5), of Interception or Use of Communications Relat-ing to Federal Offenses Which Were Not Specified in Original Wiretap Order.

97 ALR, Fed. 273, What Conduct of Federal Law Enforcement Authorities in Inducing or Co-Operating inCriminal Offense Raises Due Process Defense Distinct from Entrapment.

97 ALR, Fed. 797, Effect Upon Prior Convictions of Mcnally v. United States Rule that Mail Fraud Statute (18U.S.C.A. § 1341) is Directed Solely at Deprivation of Property Rights.

85 ALR, Fed. 13, Juror's Reading of Newspaper Account of Trial in Federal Criminal Case During Its Progressas Ground for Mistrial, New Trial, or Reversal.

76 ALR, Fed. 409, Use of Plea Bargain or Grant of Immunity as Improper Vouching for Credibility of Witnessin Federal Cases.

79 ALR, Fed. 724, Restitutional Sentencing Under Victim and Witness Protection Act § 5 (18 U.S.C.A. §§3579, 3580).

71 ALR, Fed. 789, Requirement, as Condition of Probation, Pursuant to 18 U.S.C.A. § 3651, that DefendantMake Restitution to Aggrieved Parties.

75 ALR, Fed. 600, Existence of Pendent Jurisdiction of Federal Court Over State Claim When Joined WithClaim Arising Under Laws, Treaties, or Constitution of United States.

68 ALR, Fed. 628, Statute of Limitations in Prosecution Under 18 U.S.C.A. § 371 for Conspiracy to CommitOffense Against or to Defraud United States.

69 ALR, Fed. 522, Propriety in Federal Prosecution of Severance of Partially Valid Search Warrant and Limita-tion of Suppression to Items Seized Under Invalid Portions of Warrant.

70 ALR, Fed. 538, Civil Action for Damages Under 18 U.S.C.A. § 1964(C) of the Racketeer Influenced andCorrupt Organizations Act (Rico, 18 U.S.C.A. §§ 1961 et seq.) for Injuries Sustained by Reason of Racketeer-ing...

18 U.S.C.A. § 1343


62 ALR, Fed. 106, What Constitutes “Series of Acts or Transactions” for Purposes of Rule 8(B) of FederalRules of Criminal Procedure, Providing for Joinder of Defendants Who Are Alleged to Have Participated inSame Series of Acts Or...

56 ALR, Fed. 585, Forfeiture Liability Under § 503(B) of Communications Act (47 U.S.C.A. § 503(B)).

36 ALR, Fed. 371, Sufficiency of United States Attorney General's Appointment of Special Attorney Under 28U.S.C.A. § 515(a).

34 ALR, Fed. 278, Federal Criminal Prosecutions Under Wire Fraud Statute (18 U.S.C.A. § 1343) for Use of“Blue Box” or Similar Device Permitting User to Make Long-Distance Telephone Calls Not Reflected on Com-pany's Billing...

15 ALR, Fed. 336, Determination of Value of Stolen Property Within Meaning of Provision of 18 U.S.C.A. §2314 Proscribing Interstate or Foreign Transportation of Stolen Goods, Wares, Merchandise, Securities, orMoney, of Value of $5,000 or more.

9 ALR, Fed. 893, What Constitutes “Causing” Mail to be Delivered for Purpose of Executing Scheme Prohibitedby Mail Fraud Statute (18 U.S.C.A. § 1341).

74 ALR 6th 505, Liability of Seller for Fraud or Misrepresentation as to Health or Breeding of Puppy or AdultDog.

27 ALR 6th 1, Attorney's Charging Excessive Fee as Ground for Disciplinary Action--Business and Tax, Em-ployee Benefits and Termination, Civil Rights, and Other Limited Civil Matters.

68 ALR 6th 1, Judicial Expunction of Criminal Record of Convicted Adult in Absence of Authorizing Statute.

15 ALR 5th 391, Measure and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute.

59 ALR 5th 135, Voluntary Absence of Accused When Sentence is Pronounced.

2 ALR 4th 807, Waiver or Estoppel in Incompetent Legal Representation Cases.

10 ALR 4th 8, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Guilty Pleas.

15 ALR 4th 582, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Appellate andPost-Conviction Remedies.

18 U.S.C.A. § 1343


16 ALR 4th 666, Admissibility of Expert Testimony as to Whether Accused Had Specific Intent Necessary forConviction.

16 ALR 4th 810, Prosecutor's Reference in Opening Statement to Matters Not Provable or Which He Does NotAttempt to Prove as Ground for Relief.

51 ALR 4th 971, Criminal Liability for Theft Of, Interference With, or Unauthorized Use Of, Computer Pro-grams, Files, or Systems.

62 ALR 4th 654, Civil Action for Damages Under State Racketeer Influenced and Corrupt Organizations Acts(RICO) for Losses from Racketeering Activity.

62 ALR 4th 1134, Communications Between Spouses as to Joint Participation in Crime as Within Privilege ofInterspousal Communications.

75 ALR 4th 91, Requirement of Jury Unanimity as to Mode of Committing Crime Under Statute Setting Forththe Various Modes by Which Offense May be Committed.

88 ALR 4th 8, Negative Characterization or Description of Defendant, by Prosecutor During Summation ofCriminal Trial, as Ground for Reversal, New Trial, or Mistrial--Modern Cases.

61 ALR 4th 1197, Offense of Obtaining Telephone Services by Unauthorized Use of Another's Telephone Num-ber--State Cases.

9 ALR 3rd 203, Modern Status of Doctrine of Res Judicata in Criminal Cases.

14 ALR 3rd 1358, Power of Court to Make or Permit Amendment of Indictment With Respect to Allegations asto Name, Status, or Description of Persons or Organizations.

17 ALR 3rd 1181, Comment Note.--Power of Court to Make or Permit Amendment of Indictment.

18 ALR 3rd 259, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information.

18 ALR 3rd 1408, Violation of Securities Regulations as Ground of Disciplinary Action Against Attorney.

33 ALR 3rd 17, Pretrial Publicity in Criminal Case as Ground for Change of Venue.

79 ALR 3rd 14, Use of Peremptory Challenge to Exclude from Jury Persons Belonging to a Class or Race.

18 U.S.C.A. § 1343


80 ALR 3rd 1240, Failure to Communicate With Client as Basis for Disciplinary Action Against Attorney.

82 ALR 3rd 245, Antagonistic Defenses as Ground for Separate Trials of Codefendants in Criminal Case.

82 ALR 3rd 366, Right of Defendants in Prosecution for Criminal Conspiracy to Separate Trials.

84 ALR 3rd 967, Criminal Liability for Misappropriation of Trade Secret.

89 ALR 3rd 864, Validity and Effect of Criminal Defendant's Express Waiver of Right to Appeal as Part of Ne-gotiated Plea Agreement.

98 ALR 3rd 357, Attorney's Conviction in Foreign or Federal Jurisdiction as Ground for Disciplinary Action.

87 ALR 3rd 706, Nonverbal Reaction to Accusation, Other Than Silence Alone, as Constituting Adoptive Ad-mission Under Hearsay Rule.

78 ALR 3rd 449, Criminal Prosecutions for Use of “Blue Box” or Similar Device Permitting User to MakeLong-Distance Telephone Calls Without Incurring Charges.

57 ALR 3rd 1150, Misconduct in Capacity as Judge as Basis for Disciplinary Action Against Attorney.

10 ALR 2nd 1035, Written Recitals or Statements as Within Rule Excluding Hearsay.

78 ALR 2nd 1359, Admissibility to Establish Fraudulent Purpose or Intent, in Prosecution for Obtaining or At-tempting to Obtain Money or Property by False Pretenses, of Evidence of Similar Attempts on Other Occasions.

82 ALR 2nd 473, Refreshment of Recollection by Use of Memoranda or Other Writings.

97 ALR 2nd 549, Court's Duty to Advise or Admonish Accused as to Consequences of Plea of Guilty, or to De-termine that He is Advised Thereof.

99 ALR 2nd 508, Propriety and Effect of Attack on Opposing Counsel During Trial of a Criminal Case.

3 ALR 784, Admissibility in Criminal Prosecution of Evidence to Prove Other Crime as Affected by Degree orSufficiency of the Evidence.

21 ALR 180, False Pretense: Presentation of and Attempt to Establish Fraudulent Claim Against Governmental

18 U.S.C.A. § 1343


Agency.

21 ALR 1405, Right to Try One for an Offense Other Than that Named in Extradition Proceedings.

27 ALR 139, Privilege Against Self-Incrimination Before Grand Jury.

62 ALR 392, Mailing False Information as Basis for Credits as Offense of Using Mail to Defraud.

66 ALR 1311, Instruction or Evidence as to Conspiracy Where There is No Charge of Conspiracy in Indictmentor Information.

68 ALR 928, Power of Court to Amend Indictment.

73 ALR 1460, Extraterritorial Enforcement of Arbitral Award.

77 ALR 1211, Right of Court to Hear Evidence for Purpose of Determining Sentence to be Imposed.

78 ALR 1438, Counsel's Appeal to Racial, Religious, Social, or Political Prejudices or Prejudice Against Cor-porations as Ground for a New Trial or Reversal.

80 ALR 1306, Admissibility to Establish Fraudulent Purpose or Intent, in Prosecution for Obtaining or Attempt-ing to Obtain Money or Property by False Pretenses, of Evidence of Similar Attempts on Other Occasions.

105 ALR 326, Admissibility of Telephone Conversations in Evidence.

113 ALR 1179, What Amounts to Conviction or Satisfies Requirement as to Showing of Conviction, WithinStatute Making Conviction a Ground for Refusing to Grant or for Canceling License or Special Privilege.

115 ALR 271, Market Manipulation of Securities.

118 ALR 1303, Duty of Court to Instruct on the Subject of Alibi.

131 ALR 917, Right to Severance Where Two or More Persons Are Jointly Accused.

133 ALR 934, Ruling Against Defendant's Attack Upon Indictment or Information as Subject to Review byHigher Court, Before Trial.

18 U.S.C.A. § 1343


133 ALR 1055, Reliance Upon Advice of Counsel as Affecting Criminal Responsibility.

134 ALR 1274, Validity, Construction, and Application of Statutes or Regulations Concerning Recreational orSocial Activities of Pupils of Public Schools.

145 ALR 818, Writ of Coram Nobis After Affirmance.

147 ALR 857, Duty of State Courts to Follow Decisions of Federal Courts, Other Than the Supreme Court, onFederal Questions.

148 ALR 991, Conclusiveness as to Merits of Judgment of Court of Foreign Country.

157 ALR 247, Criminal Charge Under Mail Fraud Statute as Affected by Contention that Fraudulent SchemeHad Been Completed Before Use of Mail by Person Privy to the Fraud.

157 ALR 415, Criminal Offense Predicated Upon Mail Fraud Statute as Affected by Fact that Use of Mails wasNot by Defendant, But by an Innocent Person.

158 ALR 1062, Statements by a Witness After Criminal Trial Tending to Show that His Testimony was Per-jured, as Ground for New Trial.

160 ALR 395, Accessories to Crimes Enumerated in Statute of Limitations Respecting Prosecution for CriminalOffenses, as Within Contemplation of Statute.

160 ALR 753, Competency of Juror as Affected by His Participation in a Case of Similar Character, But Not In-volving the Party Making the Objection.

169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define OffenseCharged.

132 ALR 706, Right of Buyer and Seller Inter Se as Affected by Invalidity Of, or Subsequent Changes or Devel-opments With Respect To, Tax.

112 ALR 983, Identity, as Regards Former Jeopardy, of Offenses Charged in Different Indictments or Informa-tions for Conspiracy.

107 ALR 300, Meaning, Effect, and Application of Word “Knowingly” as Employed in Statutes Relating to theUse of Mails for Improper Purposes.

18 U.S.C.A. § 1343


108 ALR 331, Criminal Responsibility of One Who Furnishes Instrumentality of a Kind Ordinarily Used for Le-gitimate Purposes, With Knowledge that it is to be Used by Another for Criminal Purposes.

108 ALR 1060, Damages for Fraud Inducing the Purchase of Corporate Securities.

100 ALR 1067, Comment Note.--Assumption by Question Put to Witness of Fact in Issue.

90 ALR 377, Constitutionality of Statute Permitting State to Take or Use in Evidence Depositions in CriminalCase.

80 ALR 227, Comment by Prosecution on Failure of Defendant to Call Character Witnesses.

43 ALR 545, Where Offense of Obtaining Money by Fraud is Deemed to be Committed When Mail or Tele-graph is Employed.

27 ALR 549, Civil Liability of Member of a Mob.

18 ALR 1153, Effect of Passing Indictment to Files.

10 ALR 982, Sufficiency of Indictment as Affected by Bill of Particulars.

13 ALR 1435, Concealment of Pregnancy as Ground for Annulment of Marriage or Divorce.

13 ALR 1446, Burden on State to Show that Crime was Committed Within Limitation Period.

Encyclopedias

Am. Jur. Pl. & Pr. Monopoly, Restr. of Trade, Unf. Trade § 116.50, Complaint in Federal Court--Fraudulent Ma-nipulation of Price Indexes by Gas Trader--Excessive Natural Gas Prices Charged to Oil Company--ShermanAct and Rico Violations--Breach of.

5 Am. Jur. Proof of Facts 2d 267, Ineffective Assistance of Counsel.

7 Am. Jur. Proof of Facts 2d 477, Prejudice Resulting from Unreasonable Delay in Trial.

9 Am. Jur. Proof of Facts 2d 407, Discrimination in Jury Selection--Systematic Exclusion or Underrepresenta-tion of Identifiable Group.

18 U.S.C.A. § 1343


22 Am. Jur. Proof of Facts 2d 721, Plastic Surgeon's Liability in Cosmetic Surgery Cases.

35 Am. Jur. Proof of Facts 2d 255, False Representation as to Quality or Character of Product.

44 Am. Jur. Proof of Facts 2d 707, Foundation for Admission of Map, Diagram, or Chart.

10 Am. Jur. Proof of Facts 3d 289, “Pattern of Racketeering Activity” Under the Racketeer Influenced and Cor-rupt Organizations Act (RICO).

27 Am. Jur. Proof of Facts 3d 213, Use of Statistical Evidence in Proving Churning of Securities Accounts.

27 Am. Jur. Proof of Facts 3d 489, Forensic Identification of Handwriting.

28 Am. Jur. Proof of Facts 3d 87, Proof of Unsuitable and Unauthorized Trading by Securities Brokers.

29 Am. Jur. Proof of Facts 3d 1, Managed Care Organization Professional Malpractice.

29 Am. Jur. Proof of Facts 3d 189, Proof that a Fund Solicitor was Negligent in Promoting, Collecting, and Dis-bursing Funds for a Charitable Organization.

33 Am. Jur. Proof of Facts 3d 359, Sports Memorabilia Dealer's Liability to Collector.

37 Am. Jur. Proof of Facts 3d 149, Insurer's Liability for Improper Issuance or Maintenance of Life InsurancePolicy, Prompting Murder or Attempted Murder of Insured.

46 Am. Jur. Proof of Facts 3d 431, Liability of Nonprofit Corporation for Engaging in For-Profit BusinessActivities.

50 Am. Jur. Proof of Facts 3d 371, Liability for Sale of Forged Antique or Work of Art.

53 Am. Jur. Proof of Facts 3d 249, Proof of Defense of Entrapment by Estoppel.

59 Am. Jur. Proof of Facts 3d 1, Proof of Personal Jurisdiction in the Internet Age.

64 Am. Jur. Proof of Facts 3d 567, Proof that a Social Security Applicant Improperly Transferred or SequesteredPersonal Assets in an Attempt to Qualify for Governmental Agency Benefits.

18 U.S.C.A. § 1343


71 Am. Jur. Proof of Facts 3d 193, Enforcement of Casino Gambling Debts.

74 Am. Jur. Proof of Facts 3d 63, Scams and Cons.

81 Am. Jur. Proof of Facts 3d 113, Identity Theft and Other Misuses of Credit and Debit Cards.

124 Am. Jur. Proof of Facts 3d 343, Privacy of Social Security Number and Liability for Unauthorized Disclos-ure or Misuse.

6 Am. Jur. Trials 873, Prosecution Summations.

20 Am. Jur. Trials 351, Handling the Defense in a Conspiracy Prosecution.

23 Am. Jur. Trials 95, The Use of Videotape in Civil Trial Preparation and Discovery.

36 Am. Jur. Trials 1, Broker-Dealer Fraud: Churning.

42 Am. Jur. Trials 1, The Appeal of a Federal Mail Fraud Conviction.

44 Am. Jur. Trials 1, Judicial Technology in the Courts.

56 Am. Jur. Trials 293, A Guide to the Federal Rules of Civil Procedure.

64 Am. Jur. Trials 543, The Relevancy Rules.

70 Am. Jur. Trials 435, The Defense of a Computer Crime Case.

82 Am. Jur. Trials 1, Defending Against Claim of Ineffective Assistance of Counsel.

Am. Jur. 2d Attorneys at Law § 91, Other Crimes and Offenses.

Am. Jur. 2d Computers and the Internet § 256, Wire Fraud.

Am. Jur. 2d Credit Cards and Charge Accounts § 18, Fraud by Wire, Radio, or Television.

Am. Jur. 2d Criminal Law § 1153, Necessity of Inquiry, Colloquy, or Record Regarding Waiver--Adequacy of

18 U.S.C.A. § 1343


Advice to Defendant.

Am. Jur. 2d Evidence § 1177, Determination Whether Document Should be Produced--Manner of Determina-tion; Burden of Proof.

Am. Jur. 2d Extortion, Blackmail, and Threats § 120, Checklist of Acts Which Constitute Racketeering Activity;Federal Law Violations.

Am. Jur. 2d Fraud and Deceit § 19, Legislation; Provisions Against Fraud.

Am. Jur. 2d Indictments and Informations § 116, Use of Technical Words--“Unlawful” or “Unlawfully”;“Feloniously”.

Am. Jur. 2d International Law § 15, Privileges and Immunites of International Organizations and Their Officersand Employees.

Am. Jur. 2d Post Office § 127, Materiality of Misrepresentation; Reliance Upon Misrepresentation.

Am. Jur. 2d Post Office § 130, Deprivation of Property or Services.

Am. Jur. 2d Post Office § 131, Deprivation of Property or Services--Honest Services.

Am. Jur. 2d Private Franchise Contracts § 24, Mail and Wire Fraud Statutes.

Am. Jur. 2d Telecommunications § 140, Termination.

Am. Jur. 2d Telecommunications § 154, Cease and Desist Order.

Am. Jur. 2d Telecommunications § 196, Fraud by Wire, Radio, or Television.

Forms

Federal Procedural Forms § 62:234, Forfeiture Proceedings--Preliminary Procedure; Persons Subject to Forfeit-ure Penalties.

Nichols Cyclopedia of Legal Forms Annotated § 209:1, Consumer Protection Against TelecommunicationsFraud.

18 U.S.C.A. § 1343


5 West's Federal Forms § 7244, Wire Fraud (18 U.S.C. § 1343).

1B West's Federal Forms § 2:100, Motion for Bail on Appeal [Fed. R. App. P. 9(B); 18 U.S.C.A. § 3143(B)].

1C West's Federal Forms § 7:31, Appellant's Opening Brief [Fed. R. App. P. 28].

2B West's Federal Forms § 1777, Scheme to Defraud and Procure Secret Profits.

2C West's Federal Forms § 2234, Complaint for Fraud--Rico Allegations.

5A West's Federal Forms § 8562, Description of Property to be Seized.

Am. Jur. Pl. & Pr. Forms Banks § 22, Complaint, Petition, or Declaration--By Bank Against Lending and BankOfficers--Wrongful Conduct in Origination of Mortgage Loans and Falsifying Data on Loan Applications.

Am. Jur. Pl. & Pr. Forms Gambling § 23.50, Complaint in Federal Court--Against On-Line Poker Provider--Breach of Fiduciary Duty, Negligence, Fraud, and Other Claims--By On-Line Poker Players.

Am. Jur. Pl. & Pr. Forms Hospitals § 153, Complaint in Federal Court--Failure to Provide Medical Care--Suspect Marketing, Billing, Accounting and Tax Practices--Rico--Pendent State Claims of Statutory ConsumerFraud, Common...

Am. Jur. Pl. & Pr. Forms Products Liability § 314, Complaint in Federal Court--Diversity of Citizenship--ByCounties--Against Manufacturers of Cigarettes and Trade Associations--Fraud and Misrepresentation--Breach ofExpress...

Am. Jur. Pl. & Pr. Forms Securities Regulation § 86, Complaint in Federal Court--Action by ShareholdersAgainst Directors--For Violation of Racketeer Influenced and Corrupt Organizations Act...

Am. Jur. Pl. & Pr. Forms Subscriptions § 8.70, Complaint in Federal Court--Subscription Fraud.

Other References

30 Securities and Federal Corporate Law Report 1, The Law to No-Where.

26 Securities and Federal Corporate Law Report 1, Sarbanes-Oxley Making the Time Fit the Crime Imperiled.

25 Securities and Federal Corporate Law Report 2, Appendix.

18 U.S.C.A. § 1343


Treatises and Practice Aids

Callmann on Unfair Compet., TMs, & Monopolies § 12:1, Introduction.

Callmann on Unfair Compet., TMs, & Monopolies § 14:43, Remedies--Criminal Sanctions.

Eckstrom's Licensing in Foreign & Domestic Ops. § 8A:23, Economic Espionage Act of 1996.

Eckstrom's Licensing in Foreign & Domestic Ops. App. 8E-Z, An Antitrust Primer for Federal Law Enforce-ment Personnel.

Eckstrom's Licensing Foreign & Domestic Ops Jt Vent § 6:2, Overview of the Fcpa.

Emp. Discrim. Coord. Analysis of Related Issues § 1:47, Federal Statutory Protection.

Federal Procedure, Lawyers Edition § 22:74, Other Particular Offenses.

Federal Procedure, Lawyers Edition § 10:223, Specificity Required by Fed. R. Civ. P. 9(B).

Federal Procedure, Lawyers Edition § 22:250, Offenses for Which Interception May be Authorized.

Federal Procedure, Lawyers Edition § 41:324, Proof of Actual Innocence.

Federal Procedure, Lawyers Edition § 63:424, Proof of Elements of Violation.

Federal Procedure, Lawyers Edition § 72:865, Prosecution for Wire Fraud.

Federal Procedure, Lawyers Edition § 8:1897, Federal Banking Agencies.

Federal Procedure, Lawyers Edition § 8:1911, Disclosure of Matters Occurring Before Grand Jury.

Federal Procedure, Lawyers Edition § 8:1980, Criminal Forfeiture.

Federal Procedure, Lawyers Edition § 8:1986, Civil Penalty for Criminal Violation.

Federal Procedure, Lawyers Edition § 22:1685, Money Laundering Cases; Fraudulent Use of Financial Institu-tions.

18 U.S.C.A. § 1343


Federal Procedure, Lawyers Edition § 22:1689, Telemarketing Fraud.

Patent Law Fundamentals § 4:1, Sources and Characteristics of Trade Secret Law.

Patent Law Fundamentals § 4:18, Unfair (Improper) Means--Crime--Under Federal Law.

Patent Law Fundamentals § 6:87, Exploiting Copyrights--Recourse Against Infringement--Remedies--CriminalResponsibility.

Patent Law Fundamentals App. 4(B), Economic Espionage Act Cases.

Restatement (Third) of Unfair Competition § 39, Definition of Trade Secret.

Sarbanes-Oxley Act in Perspective App A, Sarbanes-Oxley Act of 2002.

Sarbanes-Oxley Act in Perspective § 10:2, Introduction--Stiffer Penalties for Securities Fraud and RelatedCrimes.

Sarbanes-Oxley Act in Perspective § 11:16, Do Violations of Sec Rules Require Belief as to Fraud?

Securities and Federal Corporate Law § 20:1, Judicial Proceedings--Criminal Sanctions.

Securities and Federal Corporate Law § 20:4, SOA Enhanced Penalties for Securities Fraud and Related Crimes.

Securities and Federal Corporate Law § 19:23, O'hagan on Remand in the Eighth Circuit.

Securities and Federal Corporate Law App. 20-E, Sample Plea Agreement (Corporate)/Post-Booker.

Securities and Federal Corporate Law § 20:4.61, Sarbanes-Oxley Stiffer Penalties for Securities Fraud and Re-lated Crimes.

Securities Crimes § 2:1, Introduction.

Securities Crimes § 6:7, Use of Wires.

Securities Crimes § 5:28, Introduction.

18 U.S.C.A. § 1343


Securities Crimes App 87, Courts Instructions to the Jury.

Securities Litigation: Damages § 22:1, Rico Securities Fraud.

Securities Prac.: Fed. & State Enforcement, 2nd Ed § 2:3, Current Issues in Enforcement Policy.

Securities Prac.: Fed. & State Enforcement, 2nd Ed § 7:2, General Perspective on Criminal Enforcement Prac-tice.

Securities Prac.: Fed. & State Enforcement, 2nd Ed § 7:8, Mail and Wire Fraud Statutes.

Securities Prac.: Fed. & State Enforcement, 2nd Ed § 2:15, Insider Trading--Limitations to the MisappropriationTheory.

Securities: Public and Private Offerings § 12:33, Fraud and Enforcement Recovery Act of 2009 (Fera).

Securities: Public and Private Offerings § 11:47, Sarbanes-Oxley Act Whistleblower Section 806.

Trade Secrets Law § 4:4, Criminal Sanctions--Early Property Emphasis.

Trade Secrets Law App M, U.S. Department of Justice Licensing Guidelines: 1995 Antitrust Guidelines for theLicensing of Intellectual Property; 1988 Antitrust Enforcement Guidelines for International Operations.

Trade Secrets Law App P, Economic Espionage Act of 1996 (With Legislative History) (18 U.S.C.A. §§ 1831-1839).

US Sec. L. Int'L Fin. Trans. & Cap. Markets 2d Ed § 3:95, Complaint Procedures.

US Sec. L. Int'L Fin. Trans. & Cap. Markets 2d Ed § 6:167, Civil Action Under Sox Section 806.

US Sec. L. Int'L Fin. Trans. & Cap. Markets 2d Ed § 6:185, Criminal Sanctions--Attempts and Conspiracies toCommit Criminal Fraud Offenses, Criminal Penalties for Mail and Wire Fraud, Criminal Penalties for ERISAViolations, and Increased Criminal...

West's Federal Administrative Practice § 3105, Grand Jury Investigations--Related Criminal Activity.

West's Federal Administrative Practice § 3502, Applicable Statutes, Rules and Regulations.

18 U.S.C.A. § 1343


West's Federal Administrative Practice § 3617, Sanctions and Forfeiture--Criminal Penalties.

West's Federal Administrative Practice § 3618, Sanctions and Forfeiture--Administrative Sanctions.

Wright & Miller: Federal Prac. & Proc. § 127, Nature and Contents of Indictment or Information--ParticularCases.

Wright & Miller: Federal Prac. & Proc. § 431, Foreign Law.

Wright & Miller: Federal Prac. & Proc. § 4516, Areas of Competence for the Formulation of Federal CommonLaw--Areas of Competence for the Formulation of Federal Common Law--Filling the Interstices Within a Per-vasive Federal...

Wright & Miller: Federal Prac. & Proc. § 3949.1, Filing the Notice of Appeal.

NOTES OF DECISIONS

I. GENERALLY 1-30II. ELEMENTS OF OFFENSE 31-100III. USE OF WIRE, RADIO OR TELEVISION 101-150IV. PRACTICE AND PROCEDURE 151-240

I. GENERALLY

<Subdivision Index>

Constitutionality 1Construction 2Construction with other laws 3Law governing 4Lesser included offenses 5Private right of action 7RICO actions 8Separate and distinct offenses 6

1. Constitutionality

Wire fraud statute was properly enacted as valid extension of Congressional authority granted by CommerceClause, as wires were channels or instrumentalities of interstate commerce. U.S. v. Jinian, C.A.9 (Cal.) 2013,725 F.3d 954. Commerce 82.6; Telecommunications 730

Prosecutor's cross-examination of defendant about his misrepresentations to victims of his fraudulent investment

18 U.S.C.A. § 1343


scheme, other than misrepresentations that he had already admitted on direct examination and testified as to hisintent in making those misrepresentations, was within scope of defendant's waiver of his Fifth Amendment priv-ilege against self-incrimination at his jury trial on charges of wire fraud, since defendant's direct testimony abouthis intent opened door to cross-examination establishing his true fraudulent intent for making misrepresenta-tions. U.S. v. Musk, C.A.8 (Neb.) 2013, 719 F.3d 962. Witnesses 305(2)

Federal bribery and honest services mail and wire fraud statutes were not unconstitutionally vague as applied todefendant's alleged conduct of paying state legislators, under cloak of sham consulting contracts, to take officialaction to benefit defendant and his company as the opportunities for such actions arose. U.S. v. Rosen, C.A.2(N.Y.) 2013, 716 F.3d 691. Bribery 1(1); Postal Service 2; Telecommunications 730

Court's limitation of defendant's cross-examination of a co-conspirator regarding co-conspirator's alleged biasagainst defendant based on the benefits of his cooperation with authorities was not a violation of the Confronta-tion Clause in prosecution for conspiracy to commit wire fraud, where defendant was able to establish the poten-tial 30-year sentence co-conspirator could have received had he not cooperated, the statutory 5-year cap on co-conspirator's sentence after he cooperated, and jury was provided with a full copy of co-conspirator's plea agree-ment. U.S. v. Roussel, C.A.5 (La.) 2013, 705 F.3d 184. Criminal Law 662.7

Admission at trial of evidence of nontestifying codefendant's redacted post-arrest statements did not violateConfrontation Clause rights of defendant charged with mortgage-based wire fraud; nothing in statements was fa-cially incriminating as to defendant and no part of statements referenced defendant or his company indirectly,such that after redactions were made, there was no indication from statements that defendant or his company ex-isted, and reasonable juror could have concluded, without any evidence of codefendant's confession, that defend-ant was guilty. U.S. v. Javell, C.A.7 (Ill.) 2012, 695 F.3d 707. Criminal Law 662.10

Federal district court plainly erred by applying former version of Sentencing Guidelines in money launderingconspiracy and wire fraud prosecution, based on court's acceptance of probation officer's presentence investiga-tion report (PSR) that proceeded on mistaken belief that violation of Ex Post Facto Clause would have resultedfrom application of current version of Guidelines; in fact, Guidelines range either would have been lower, or thesame, under current version. U.S. v. Baretz, C.A.7 (Ill.) 2005, 411 F.3d 867. Criminal Law 1042.3(1)

Statute which extended the coverage of the wire and mail fraud statutes, to include deprivation of the intangibleright of honest services, defined the offense with sufficient definiteness and in a manner that did not encouragearbitrary and discriminatory enforcement, and therefore was not unconstitutionally vague on its face; statute'sclear prohibition applied to a wide swath of behavior. U.S. v. Rybicki, C.A.2 (N.Y.) 2003, 354 F.3d 124, certior-ari denied 125 S.Ct. 32, 543 U.S. 809, 160 L.Ed.2d 10. Postal Service 35(1); Telecommunications730

In criminal action against attorney and chiropractor arising from kickback scheme, in which personal injury at-torney would refer clients to chiropractor and in return receive payments from chiropractor, mail and wire fraudstatutes were not unconstitutionally vague, as applied under the intangible-rights theory to the kickback schemeenabled by the attorney's misuse of his fiduciary position for personal gain. U.S. v. Hausmann, C.A.7 (Wis.)

18 U.S.C.A. § 1343


2003, 345 F.3d 952, rehearing and suggestion for rehearing en banc denied, certiorari denied 124 S.Ct. 2412,541 U.S. 1072, 158 L.Ed.2d 981. Postal Service 35(1); Telecommunications 730

Statutes proscribing wire fraud and theft from an employee benefit plan are within the extensive reach of theCommerce Clause. U.S. v. Hook, C.A.7 (Ill.) 1999, 195 F.3d 299, rehearing and rehearing en banc denied , certi-orari denied 120 S.Ct. 1707, 529 U.S. 1082, 146 L.Ed.2d 510, rehearing denied 120 S.Ct. 2244, 530 U.S. 1226,147 L.Ed.2d 270. Commerce 82.6; Labor And Employment 3264; Telecommunications 730

Wire and mail fraud statutes as applied in case did not violate defendants' Fifth Amendment right to due processand Sixth Amendment right to be reasonably forewarned of what conduct is criminal, in that defendants were in-dicted for a “fiduciary fraud,” the application of which to mail and wire fraud statutes has been frequently recog-nized, and in view of fact that wire fraud is a “specific intent” crime. U.S. v. Conner, C.A.11 (Fla.) 1985, 752F.2d 566, certiorari denied 106 S.Ct. 72, 474 U.S. 821, 88 L.Ed.2d 59. Constitutional Law 4509(12)

Prosecution of defendant under this section arising from his operation of bogus talent agency which he estab-lished to meet and seduce young women was not unconstitutional. U. S. v. Condolon, C.A.4 (Va.) 1979, 600F.2d 7. Telecommunications 730

This section proscribed a reasonably ascertainable standard of conduct, and was sufficient to advise defendantsthat their conduct in obtaining confidential information from telephone company and United States Post OfficeDepartment [now United States Postal Service] by misrepresentations constituted wire fraud. U. S. v. Louder-man, C.A.9 (Cal.) 1978, 576 F.2d 1383, certiorari denied 99 S.Ct. 257, 439 U.S. 896, 58 L.Ed.2d 243. Telecom-munications 730

In view of testimony showing that the primary if not sole purpose of “blue box” as enunciated by defendant dur-ing meetings with telephone security officer and informant was to defraud telephone company, defendant couldnot successfully urge in wire fraud prosecution that he had not yet received fair notice of application of this sec-tion to his sales of the equipment. U. S. v. Patterson, C.A.5 (Tex.) 1976, 528 F.2d 1037, rehearing denied 534F.2d 1113, certiorari denied 97 S.Ct. 361, 429 U.S. 942, 50 L.Ed.2d 313. Telecommunications 1017

This section, proscribing the interstate transmission by wire, radio, or television of any writings, signs, signals,pictures, or sounds for the purpose of executing a fraudulent scheme or artifice, was not unconstitutional as be-ing unduly vague. Roberts v. U. S., C.A.6 (Ky.) 1955, 226 F.2d 464, certiorari denied 76 S.Ct. 307, 350 U.S.935, 100 L.Ed. 817. Sentencing And Punishment 605

Trial counsel was not deficient, as element of ineffective assistance claim, in failing to insist that entire video re-cording containing defendant's interview with law enforcement agents be played in front of jury, or in failing toobject to recording as misrepresentation of interview, in prosecution for bank fraud, aggravated identity theft,and wire fraud; contrary to defendant's assertion, omitted portion of recording did not contain any exculpatorystatements, but rather, it contained defendant's invocation of her Miranda rights, detective's explanation that de-fendant would be returned to her cell, and cessation of interview. Flood v. U.S., D.Del.2012, 867 F.Supp.2d 539.

18 U.S.C.A. § 1343


Criminal Law 1932

Mail and wire fraud statutes, and honest services statute, were void for vagueness under due process clause asapplied to municipal officials charged with honest services mail and wire fraud based on their alleged failure todisclose conflicts of interest while voting as board members for the city's pension fund, in light of the novelty ofbringing a dishonest services charge against municipal officials for considering and voting on municipal propos-als initiated by their city employer, the vagueness of the text of the honest services statute, and the fact that itwas a criminal statute which failed to give fair warning. U.S. v. Saathoff, S.D.Cal.2010, 708 F.Supp.2d 1020.Constitutional Law 4509(12); Postal Service 35(1); Telecommunications 730

Wire fraud statute was not vague, in violation of Due Process Clause, in proscribing “Ponzi” scheme involvingfalse promises to individuals in order to induce them to invest money. U.S. v. 8 Gilcrease Lane, Quincy, Fla.32351, D.D.C.2009, 656 F.Supp.2d 87. Constitutional Law 4509(12); Telecommunications 730

Federal wire fraud statute was not void for vagueness as applied to prosecution of energy corporation and em-ployees, stemming from alleged creation of false electricity supply shortage; statute provided constitutionallysufficient notice, since persons of average intelligence in Federal Energy Regulatory Commission (FERC) regu-lated market could have reasonably understood that conduct not proscribed by market rules was nonetheless pro-hibited by law. U.S. v. Reliant Energy Services, Inc., N.D.Cal.2006, 420 F.Supp.2d 1043. Constitutional Law

4509(12); Telecommunications 730

This section proscribing transmission, by means of wire, of sounds for purpose of executing scheme to defrauddoes not violate U.S.C.A. Const. Amend. 5. U. S. v. Jaworski, D.C.Minn.1972, 343 F.Supp. 406. ConstitutionalLaw 4509(12); Telecommunications 730

Defendant's sentence for wire fraud did not violate the Ex Post Facto Clause even though defendant pled guiltyprior to Booker when the sentencing guidelines were applied as mandatory and he was sentenced post-Booker,under the current advisory scheme, given that defendant was on notice at the time he pled guilty that the maxim-um statutory penalty was five years' imprisonment and his sentence did not exceed five years. U.S. v. Stroupe,C.A.4 (S.C.) 2006, 200 Fed.Appx. 178, 2006 WL 2620209, Unreported, post-conviction relief denied 664F.Supp.2d 598. Constitutional Law 2817; Sentencing And Punishment 661.5

2. Construction

This section should be carefully and strictly construed in order to avoid extension beyond limits intended byCongress. U. S. v. Louderman, C.A.9 (Cal.) 1978, 576 F.2d 1383, certiorari denied 99 S.Ct. 257, 439 U.S. 896,58 L.Ed.2d 243. Telecommunications 1014(1)

3. Construction with other laws

Common-law revenue rule did not bar prosecution for conspiracy to launder proceeds of wire fraud, arising fromdefendant's involvement in scheme to defraud Canadian government by circumventing Canadian cigarette taxes.

18 U.S.C.A. § 1343


Fountain v. U.S., C.A.2 (N.Y.) 2004, 357 F.3d 250, certiorari denied 125 S.Ct. 1968, 544 U.S. 1017, 161L.Ed.2d 856, rehearing denied , rehearing denied 125 S.Ct. 2959, 545 U.S. 1150, 162 L.Ed.2d 907. Conspiracy

38

Requirement under mail fraud statute that scheme to defraud must allege scheme to deprive individuals or entit-ies of money or property rather than intangible rights also applied to wire fraud statute. U.S. v. Gimbel, C.A.7(Wis.) 1987, 830 F.2d 621. Telecommunications 1014(7)

Statute barring interstate transportation of product of a fraud and statute prohibiting use of wire to effect fraudcreated two crimes which could be separately charged. U.S. v. Wright, C.A.10 (Utah) 1986, 791 F.2d 133. Crim-inal Law 29(5.5)

Substantive offenses of wire fraud [18 U.S.C.A. § 1343] and violation of Travel Act [18 U.S.C.A. § 1952] re-quire different elements of proof than an agreement to commit those crimes; therefore, defendant's acquittal onsubstantive charges of wire fraud and use of interstate wire facility in violation of the Travel Act did not man-date reversal of his conviction for conspiracy to commit wire fraud. U.S. v. Soteras, C.A.7 (Ill.) 1985, 770 F.2d641. Conspiracy 28(2); Criminal Law 878(4)

This section, patterned on section 1341 of this title, was meant to receive like interpretation. U. S. v. ComputerSciences Corp., C.A.4 (Va.) 1982, 689 F.2d 1181, certiorari denied 103 S.Ct. 729, 459 U.S. 1105, 74 L.Ed.2d953. Telecommunications 1014(1)

Cases construing section 1341 of this title, apply to this section. U. S. v. Giovengo, C.A.3 (Pa.) 1980, 637 F.2d941, certiorari denied 101 S.Ct. 1743, 450 U.S. 1032, 68 L.Ed.2d 228.

Section 605 of Title 47, prohibiting persons receiving or assisting in receiving or transmitting interstate commu-nication by wire or radio from divulging or publishing contents of the communication except through authorizedchannels of transmission or reception to any person other than the addressee, his agent, or attorney was adoptedby Congress for protection of authorized users of telephonic or remedial facilities and was not intended as arefuge for wrongdoer who uses telephone in scheme to violate this section. Brandon v. U. S., C.A.10 (Okla.)1967, 382 F.2d 607. Telecommunications 1014(1)

Due process did not require that claimant in civil forfeiture proceeding have had notice that his underlying con-duct was illegal. U.S. v. 8 Gilcrease Lane, Quincy, Fla. 32351, D.D.C.2009, 656 F.Supp.2d 87. ConstitutionalLaw 4078

There was insufficient evidence that detainee's alleged retention of funds loaned to him by Czech citizen was acrime both in Czech Republic and in United States, so as to meet dual criminality requirement of ExtraditionTreaty between United States of America and Czechoslovakia to obtain extradition of detainee for fraud, eventhough federal law proscribed wire communications made with intent to defraud or obtain money by false pre-tenses; only evidence of wire communication was wire transfer document that pre-dated loan by 14 months,

18 U.S.C.A. § 1343


there was no evidence of detainee's allegedly fraudulent intent to defraud, and Czech Criminal Code did notcriminalize mere retention of property but required enrichment accomplished by misleading conduct. U.S. v.Peterka, M.D.Fla.2003, 307 F.Supp.2d 1344. Extradition And Detainers 5; Extradition And Detainers14(2)

Civil Asset Forfeiture Reform Act (CAFRA) was applicable to forfeiture proceeding commenced after Act's ef-fective date, regardless of fact that underlying wire and mail fraud giving rise to proceeding had occurred priorto effective date. U.S. v. Real Property Identified as: Parcel 03179-005R, D.D.C.2003, 287 F.Supp.2d 45, staydenied 2004 WL 1859778. Forfeitures 2

Allegation of full service provider of transportation services to Medicaid recipients, pursuant to contract withstate Department of Human Services, that competitor's making of referrals to wheelchair van providers ratherthan full service provider constituted misrepresentations that competitor had fulfilled its duties as to such refer-rals in accordance with Department regulations, and thereby cost government more money, demonstrated indict-able wire fraud sufficient to show predicate offense required to support provider's civil claim against competit-or's officers under Racketeer Influenced and Corrupt Organizations Act (RICO). Freeport Transit, Inc. v. McN-ulty, D.Me.2003, 239 F.Supp.2d 102. Racketeer Influenced And Corrupt Organizations 70

Decision of United States Supreme Court that criminal penalties could not be imposed under National StolenProperty Act for interstate transportation of pirated records or tapes did not affect defendants' conviction forwire fraud which were based upon scheme to fraudulently deprive copyright owners, sound recording companiesand recording artists and musicians of their rightful income and royalties and to fraudulently represent to publicand to others that certain sound recordings were produced by manufacturers identified on labels of said productswhen, in fact, products were not legitimately or lawfully reproduced, absent allegation that scheme to defraudconsisted of interstate transportation of stolen property. Cooper v. U.S., M.D.Fla.1986, 639 F.Supp. 176, 230U.S.P.Q. 518. Receiving Stolen Goods 2

4. Law governing

State law is irrelevant in determining whether a certain course of conduct is violative of this section. U. S. v.Louderman, C.A.9 (Cal.) 1978, 576 F.2d 1383, certiorari denied 99 S.Ct. 257, 439 U.S. 896, 58 L.Ed.2d 243.Federal Courts 404

State law was irrelevant to alleged federal offenses of using interstate wire facilities in carrying out scheme todefraud casinos and of conspiring to do so. U. S. v. Scallion, C.A.5 (La.) 1976, 533 F.2d 903, certiorari denied97 S.Ct. 824, 429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97 S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, onrehearing 548 F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S. 943, 56 L.Ed.2d 784. Commerce 82.6

5. Lesser included offenses

Misdemeanor of making false entry in records which a regulated communications carrier is required by law orregulation to maintain is not related to offense of using an electronic device to bypass telephone billing equip-

18 U.S.C.A. § 1343


ment and is not a lesser included offense of the latter crime. U. S. v. Glanzer, C.A.9 (Wash.) 1975, 521 F.2d 11.Indictment And Information 191(.5)

6. Separate and distinct offenses

Defendants' wire fraud convictions did not merge with money laundering convictions arising out of fraudulentmortgage lending scheme; although defendants argued that allegedly laundered funds were same funds constitut-ing basis of wire fraud conviction and not funds that were “profits” derived from underlying wire fraud, crimesof wire fraud were complete before conduct underlying money laundering counts began, and defendants usedonly profits from underlying wire fraud crimes to assist them in committing new crimes of wire fraud. U.S. v.Kennedy, C.A.5 (Miss.) 2013, 707 F.3d 558, certiorari denied 133 S.Ct. 2779, 186 L.Ed.2d 227, certioraridenied 133 S.Ct. 2785, 186 L.Ed.2d 227. Criminal Law 30

Two counts of wire fraud in the fraudulent sale of used helicopter rotor blades, one based on a fax transmissiondefendant sent to a prospective buyer in which he misrepresented the age of the blades, and the second based ona fax transmission the buyer sent to defendant agreeing to purchase the blades, were not multiplicitous underBlockburgertest. U.S. v. Garlick, C.A.9 (Mont.) 2001, 240 F.3d 789. Double Jeopardy 139.1

Each of 57 counts of wire fraud charged in indictment described separate violation of wire fraud statute entitlingcourt to impose separate $50 special assessment for each count, even if transfers collectively comprise single ex-ecution of single scheme; under federal wire fraud statute, each use of wires constituted separate crime, even ifseveral uses were in pursuance of but one criminal enterprise. U.S. v. Luongo, C.A.1 (Mass.) 1993, 11 F.3d 7.Costs 292

Each use of wires pursuant to criminal scheme to defraud constitutes separate, independent crime punishable un-der the wire fraud statute. U.S. v. Fermin Castillo, C.A.1 (Puerto Rico) 1987, 829 F.2d 1194. Criminal Law29(5.5)

Evidence was sufficient to show a connection between defendant, who operated certain companies as bust outs,and a mailing which served as basis for his conviction for mail fraud and telephone conversations which servedas basis for his wire fraud convictions and, since evidence supported his conviction for those predicate crimes,his conviction under substantive count under the Organized Crime Control Act of 1970, section 1961 et seq. ofthis title, was proper; furthermore it was reasonable for jury to conclude that defendant conspired with otherconspirators to operate bust outs and to exchange false credit references in order to advance illegal ends of enter-prise. U.S. v. Hewes, C.A.11 (Ga.) 1984, 729 F.2d 1302, rehearing denied 734 F.2d 1481, certiorari denied 105S.Ct. 790, 469 U.S. 1110, 83 L.Ed.2d 783. Commerce 82.6; Conspiracy 47(3.1)

It was not error to convict defendant for separate mail and wire fraud violations on basis of different telephoneand mail communications, even though there was but a single fraudulent scheme. U. S. v. Benmuhar, C.A.1(Puerto Rico) 1981, 658 F.2d 14, certiorari denied 102 S.Ct. 2927, 457 U.S. 1117, 73 L.Ed.2d 1328, rehearingdenied 103 S.Ct. 16, 458 U.S. 1132, 73 L.Ed.2d 1402. Criminal Law 29(5.5)

18 U.S.C.A. § 1343


Each use of the wires is a separate offense under this section notwithstanding the fact that defendant may haveengaged in only a single fraudulent scheme. U. S. v. Calvert, C.A.8 (Mo.) 1975, 523 F.2d 895, certiorari denied96 S.Ct. 1106, 424 U.S. 911, 47 L.Ed.2d 314. Postal Service 35(2); Telecommunications 1014(2)

Each separate use of wire communication constitutes separate offense under this section. Henderson v. U. S.,C.A.5 (Tex.) 1970, 425 F.2d 134.

Each separate use of wire, radio, or television communication constitutes separate offense under this section.Sibley v. U. S., C.A.5 (La.) 1965, 344 F.2d 103, certiorari denied 86 S.Ct. 405, 382 U.S. 945, 15 L.Ed.2d 354.Telecommunications 1014(2); Telecommunications 1168

That defendant was not named in wire fraud count, which related to early stage of alleged securities fraudscheme, did not render that count repugnant to mail fraud count which named defendant and which incorporatedfirst count by reference. U. S. v. Crosby, C.A.2 (N.Y.) 1961, 294 F.2d 928, certiorari denied 82 S.Ct. 599, 368U.S. 984, 7 L.Ed.2d 523, rehearing denied 82 S.Ct. 1138, 369 U.S. 881, 8 L.Ed.2d 285. Indictment And Inform-ation 73(1)

Under mail and wire fraud statutes, each mailing or wiring is separate act of mail fraud, even if each relates tosame scheme to defraud. Maryland Staffing Services, Inc. v. Manpower, Inc., E.D.Wis.1996, 936 F.Supp. 1494.Criminal Law 29(5.5); Postal Service 35(2); Telecommunications 1014(2)

Under wire fraud statute, each separate use of wire communication constitutes separate offense, even if defend-ant engaged in only single scheme to defraud; because each use of wire system is distinct offense, jury is re-quired to consider each count separately. U.S. v. Butler, E.D.Va.1989, 704 F.Supp. 1338, affirmed 905 F.2d1532, certiorari denied 111 S.Ct. 257, 498 U.S. 900, 112 L.Ed.2d 215. Criminal Law 29(5.5)

Separate sentences could be imposed for wire fraud, which required presence of interstate wire communications,but not acquisition of money from federally insured financial institution, and bank fraud, which required acquisi-tion of money from federally insured financial institution, but not presence of interstate wire communications.U.S. v. Jones, S.D.N.Y.1986, 648 F.Supp. 241. Sentencing And Punishment 527

Defendant was not entitled to consolidation of 19 counts of mail and wire fraud into five counts, even though thealleged fraudulent scheme related to work authorization for nonimmigrant aliens and only five aliens werenamed in indictment, because each mailing and telephone call made in furtherance of a fraud scheme is a separ-ate offense and can thus be charged as a separate crime. U. S. v. Medows, S.D.N.Y.1982, 540 F.Supp. 490. In-dictment And Information 130

Each transmission pursuant to alleged scheme to defraud by use of interstate wire facilities would give rise toseparate crime if those transmissions were in “execution” of the illegal scheme. U. S. v. Freeling, S.D.N.Y.1962,31 F.R.D. 540. Telecommunications 1014(2)

18 U.S.C.A. § 1343


7. Private right of action

Implied private right of action does not exist under mail fraud and wire fraud statutes, given absence of congres-sional intent to create such a right. Wisdom v. First Midwest Bank, of Poplar Bluff, C.A.8 (Mo.) 1999, 167 F.3d402, rehearing and rehearing en banc denied. Action 5

This section did not operate to create federal cause of action for damages against defendants who were allegedto have violated its provisions. Napper v. Anderson, Henley, Shields, Bradford and Pritchard, C.A.5 (Tex.)1974, 500 F.2d 634, rehearing denied 507 F.2d 723, certiorari denied 96 S.Ct. 65, 423 U.S. 837, 46 L.Ed.2d 56.Telecommunications 1443

Insurance claimant and repair contractor had no private right of action to sue property insurer and others for al-leged mail and wire fraud in adjusting claims. Bologna v. Allstate Ins. Co., E.D.N.Y.2001, 138 F.Supp.2d 310.Action 5

8. RICO actions

Borrowers failed to adequately plead Racketeer Influenced and Corrupt Organizations Act (RICO) cause of ac-tion predicated on mail and wire fraud against lender banks, insofar as their conclusory allegations of fraud didnot comply with federal civil rule requiring that allegations of fraud be pled with specificity and their specificallegations regarding particular transactions did not amount to fraud; purportedly fraudulent credit agreementsdid not define term “prime rate” as lowest interest rate available to bank's most creditworthy borrowers. Lum v.Bank of America, C.A.3 (N.J.) 2004, 361 F.3d 217, certiorari denied 125 S.Ct. 271, 543 U.S. 918, 160 L.Ed.2d203. Federal Civil Procedure 636

Even if health maintenance organization's (HMO) audit of pharmacy and its refusal to process another phar-macy's application to participate in its pharmacy network was in retaliation for pharmacy chain's decision todrop HMO and switch to a self-insurance program and to encourage chain to select HMO as its third party ad-ministrator (TPA), HMO's failure to disclose that its actions were not motivated by legitimate quality assuranceconcerns was not “scheme to defraud” under mail and wire fraud statutes, where chain was aware of HMO's mo-tivations and switched TPA as result. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., C.A.3 (Pa.) 1998, 140F.3d 494, on remand 1999 WL 200667, on remand 1999 WL 200668. Postal Service 35(10); Telecommu-nications 1014(8)

Misrepresentations that occurred at a meeting do not constitute wire or mail fraud, and thus could not constituteracketeering activity. Tel-Phonic Services, Inc. v. TBS Intern., Inc., C.A.5 (Tex.) 1992, 975 F.2d 1134. PostalService 35(2); Telecommunications 1014(2)

Memorandum consisting of series of notations of alleged telephone conversation pertaining to “bust out” schemecould not prevent entry of summary judgment for defendants in action alleging predicate act of wire fraud underRacketeer Influenced and Corrupt Organizations Act, where memorandum constituted unsworn hearsay, andthus notations could not be admitted to prove truth of assertions, but could only be admitted to show that conver-

18 U.S.C.A. § 1343


sation occurred. Howell Hydrocarbons, Inc. v. Adams, C.A.5 (Tex.) 1990, 897 F.2d 183, rehearing denied. Fed-eral Civil Procedure 2545

Evidence of misleading mailings and telephone calls outside the bounds of statute of limitations was evidence incivil RICO action of lulling effect of the communications and, hence, their relation to the asserted fraud. Morleyv. Cohen, C.A.4 (Md.) 1989, 888 F.2d 1006. Racketeer Influenced And Corrupt Organizations 78

Not having been shown to have committed any fraudulent act, president of commodities brokerage firm couldnot have violated wire fraud provision of Racketeer Influenced and Corrupt Organizations Act. Horn v. Ray E.Friedman & Co., C.A.8 (Ark.) 1985, 776 F.2d 777. Racketeer Influenced And Corrupt Organizations 10

Corporate investor in two projects of a computer corporation pled predicate acts of wire fraud with requisite par-ticularity, in support of racketeering activity element of its claim under the Racketeer Influenced and CorruptOrganizations Act (RICO) against computer corporation's executives; investor alleged that as part of a scheme todefraud, executives fraudulently misrepresented the market potential of various products, the use to which in-vestor's investments in the projects would be made, and the stages of the two projects, and the complaint alsocontained dates and dollar amounts of wire transfers that were caused to be sent in furtherance of the scheme todefraud. Devon IT, Inc. v. IBM Corp., E.D.Pa.2011, 805 F.Supp.2d 110, issued 2011 WL 1235606. RacketeerInfluenced And Corrupt Organizations 28

Environmental group failed to establish that it suffered any harm as result of alleged violations of federal wirefraud statute by chemical company, public relations firm, and member of private security firm in connectionwith their alleged infiltration of another organization to defraud it of confidential information, and thus allegedwire fraud could not serve as predicate acts in group's action against company and firms under Racketeer Influ-enced and Corrupt Organizations Act (RICO), even though defrauded organization worked with group in cam-paign against company, where group did not claim that its own confidential information or communicationswere stolen. Greenpeace, Inc. v. Dow Chemical Co., D.D.C.2011, 808 F.Supp.2d 262. Racketeer Influenced andCorrupt Organizations 10; Telecommunications 1014(7)

Allegations of workers, that company, its officers and employees recruited the workers to come from the Philip-pines to work in the United States, using fraudulent visa applications, false promises, and misrepresentations re-garding the terms and conditions of employment, then forced the workers to live in severely crowded housingand to work long hours in country clubs and hotels in Florida and New York, and threatened workers with arrest,imprisonment, deportation, cancellation of their visas, loss of work, lawsuits, and black-listing were sufficient tosatisfy heightened pleading standard for fraud-related predicate acts of mail, wire, and immigration documentfraud which supported their civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims. Magni-fico v. Villanueva, S.D.Fla.2011, 783 F.Supp.2d 1217. Federal Civil Procedure 636

Investor established closed-ended continuity required for his Racketeer Influenced and Corrupt OrganizationsAct (RICO) claim against various media companies and two officers, arising from alleged multimillion-dollarscheme to defraud investor, by showing that defendants engaged in mail and wire fraud and money launderingduring span of approximately five years, with predicate acts occurring at short, regular intervals during that

18 U.S.C.A. § 1343


time, that conspiracy comprised approximately 27 persons, and that amount of money involved would affectfamily members, charities, businesses, and banks where money would otherwise have been directed. Allen exrel. Allen v. Devine, E.D.N.Y.2010, 726 F.Supp.2d 240. Racketeer Influenced And Corrupt Organizations29

Arbitration judgment creditor's allegations regarding debtor's representations to creditor that it would be paid forwork performed, as subcontractor on project and pursuant to contract, were sufficient to establish predicate actsof mail or wire fraud in its action to enforce arbitration award of $314,925.59 on theory that debtor and its affili-ated companies had violated Racketeer Influenced and Corrupt Organizations Act (RICO); allegations includedwho from debtor or its affiliated companies communicated with creditor, contents of communication, date ofcommunication, and locations of persons involved. Plainville Elec. Products Co., Inc. v. Vulcan Advanced Mo-bile Power Systems, LLC, D.Conn.2009, 638 F.Supp.2d 245. Fraud 43; Telecommunications1014(12)

Genuine issue of material fact as to whether defendant specifically intended to defraud corporation of moneyand property through use of wire communications precluded summary judgment in Racketeer Influenced andCorrupt Organizations Act (RICO) action brought by corporation. Bloodstock Research Information Services,Inc. v. Edbain.com, LLC, E.D.Ky.2009, 622 F.Supp.2d 504. Federal Civil Procedure 2509.5

Conclusory allegations that defendants' use of the mails and wires to perpetrate their fraud involved thousands ofcommunications, and that they caused matter and things to be delivered in the mail, including “correspondence,policy materials, requests for proposals, invoices, and payments,” and the resulting transfers of funds were madeby wire transfer were insufficient to plead Racketeer Influenced and Corrupt Organizations Act (RICO) predic-ate acts of mail and wire fraud with sufficient particularity. In re Compact Disc Minimum Advertised Price Anti-trust Litigation, D.Me.2006, 456 F.Supp.2d 131, supplemented 2006 WL 2943308. Federal Civil Procedure636

Insurer did not engage in mail or wire fraud, as predicate act to claim brought by medical service providers andpharmacies against insurer under Racketeer Influenced and Corrupt Organizations Act (RICO), by providing ex-planation of payments (EOPs), explanation of benefits (EOBs), circulars, and remittances to providers, whichalerted providers to possibility that they were not getting paid to extent they should have been paid, and whichotherwise did not contain any misleading information. Sanchez v. Triple-S Management Corp., D.Puerto Rico2006, 446 F.Supp.2d 48, affirmed 492 F.3d 1, certiorari denied 128 S.Ct. 806, 552 U.S. 1076, 169 L.Ed.2d 606.Postal Service 35(10); Telecommunications 1014(8)

Immigrant workers sufficiently pled mail and wire fraud by alleged employer as predicate acts for claim underthe Racketeer Influenced and Corrupt Organizations Act (RICO); workers alleged failure to pay overtime wagesand miscalculation of payroll checks based on straight time rates alone without any necessary withholdings, theworkers clearly pled that the payroll checks were false and deceptive, the employer allegedly utilized the mailsand fixed-line telephone transmissions in interstate commerce in furtherance of the scheme, and the fact thatpaychecks were mailed or timecards were transmitted in the ordinary course of business was irrelevant. Choim-bol v. Fairfield Resorts, Inc., E.D.Va.2006, 428 F.Supp.2d 437. Fraud 41; Telecommunications

18 U.S.C.A. § 1343


1014(12)

Genuine issues of material fact existed as to whether certain mailings should be imputed to defendants and as tothe application of order to transmissions which occurred prior to beginning date specified in order, so as to pre-clude summary judgment for Government on elements that defendants caused mailings and transmissions inconjunction with alleged racketeering acts of mail fraud and wire fraud underlying Racketeer Influenced andCorrupt Organizations Act (RICO) claims asserted against cigarette-manufacturers and other tobacco-related en-tities. U.S. v. Philip Morris USA, D.D.C.2004, 316 F.Supp.2d 13. Federal Civil Procedure 2509.5

Allegations that defendants used interstate wires “on numerous occasions” to misrepresent sales levels of limitedpartnership and that defendants “periodically” misrepresented financial status of partnership through use of in-terstate wires between Florida, New York, and Illinois, were insufficient to constitute predicate acts under Rack-eteer Influenced and Corrupt Organizations Act (RICO); court was left to speculate as to which specific defend-ant made use of wires on each particular occasion and dates of such use, as well as exact frequency of such use.Bajorat v. Columbia-Breckenridge Development Corp., N.D.Ill.1996, 944 F.Supp. 1371. Racketeer InfluencedAnd Corrupt Organizations 70

Phone calls and other wire communications involved in alleged fraudulent invoicing scheme to loot companycould not serve as predicate acts grounding civil Racketeer Influenced and Corrupt Organizations Act (RICO)claim against company's comptroller, absent allegation that comptroller used interstate wires; alleged phonecalls were between company, which was apparently located in New York, and vice president, who was NewYork resident, and purportedly false reports allegedly faxed to vice president, and alleged transfer of fundsbetween company's bank accounts and factoring banks, were not claimed to have been transmitted in interstateor foreign commerce. Brooke v. Schlesinger, S.D.N.Y.1995, 898 F.Supp. 1076. Racketeer Influenced And Cor-rupt Organizations 70

When RICO plaintiff alleges that mail and wire fraud constitute the predicate acts necessary for RICO claim,each of the acts must themselves constitute violation of the mail and wire fraud statutes and to qualify, one musthave proof of scheme or artifice to defraud or obtain money by means of false pretenses, representations orpromises, use of the mails or interstate wires for purpose of executing the scheme and specific intent to defraudeither by devising, participating in or abetting the scheme. Update Traffic Systems, Inc. v. Gould,E.D.N.Y.1994, 857 F.Supp. 274. Racketeer Influenced And Corrupt Organizations 10

In order to recover under RICO for mail or wire fraud, plaintiff need not suffer an actual fraud, but the schemeto defraud must be intentional. Panfil v. ACC Corp., W.D.N.Y.1991, 768 F.Supp. 54, affirmed 952 F.2d 394.Racketeer Influenced And Corrupt Organizations 10

Scienter was required to maintain action for mail or wire fraud as predicate acts upon which RICO claims werebased. O'Brien v. National Property Analysts Partners, S.D.N.Y.1989, 719 F.Supp. 222. Racketeer InfluencedAnd Corrupt Organizations 10

18 U.S.C.A. § 1343


Using telephone to commit fraud is not racketeering activity under Racketeer Influenced and Corrupt Organiza-tions Act unless it violates federal wire fraud statute, and an interstate communication is an essential element ofsuch a violation. H.G. Gallimore, Inc. v. Abdula, N.D.Ill.1987, 652 F.Supp. 437. Racketeer Influenced And Cor-rupt Organizations 10

Allegations by lender that bank and remaining defendants falsely and fraudulently represented to her that theywere honestly and in good faith complying with an agreement concerning a contemplated Small Business Ad-ministration loan were not supported by sufficient allegations to evidence specific intent required under mail andwire fraud statutes, the predicate acts upon which the counts under Racketeer Influenced and Corrupt Organiza-tions Act, 18 U.S.C.A. §§ 1961-1968, were based. Grant v. Union Bank, D.Utah 1986, 629 F.Supp. 570. Racket-eer Influenced And Corrupt Organizations 70

Allegations by investors in government securities who suffered losses when dealer hypothecated securities thatdealer's accounting firm used mails and means and instrumentalities of interstate commerce in connection withallegedly fraudulent transactions was insufficient to notify accounting firm of what use of the wires investorsclaimed dealer made, and thus did not sufficiently allege wire fraud to satisfy predicate offense requirement un-der the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. § 1961(1)(B). First Federal Sav. andLoan Ass'n of Pittsburgh v. Oppenheim, Appel, Dixon & Co., S.D.N.Y.1986, 629 F.Supp. 427. Racketeer Influ-enced And Corrupt Organizations 70

II. ELEMENTS OF OFFENSE

<Subdivision Index>

Generally 31Aiding and abetting, scheme or artifice to defraud 50Banks and banking, scheme or artifice to defraud 51Breach of fiduciary duty, scheme or artifice to defraud 52Bribery, scheme or artifice to defraud 52bCable company frauds, scheme or artifice to defraud 53Check kiting, scheme or artifice to defraud 54Coins, scheme or artifice to defraud 55Control, money or property 42Convergence, nature of victims 47Conversion of money 32Credibility of scheme 33Credit, scheme or artifice to defraud 56Damages or loss 34Defenses 67-74

Defenses - Generally 67Defenses - Double jeopardy 68Defenses - Entrapment 69Defenses - Failure of scheme 70

18 U.S.C.A. § 1343


Defenses - Good faith 71Defenses - Limitations 72Defenses - Restitution 73Defenses - Speedy trial 74

Double jeopardy, defenses 68Duty to disclose 35Entrapment, defenses 69Embezzlement, scheme or artifice to defraud 52aExtortion, scheme or artifice to defraud 57Failure of scheme, defenses 70Foreign government frauds, scheme or artifice to defraud 59Foreign policy, scheme or artifice to defraud 58Franchises, scheme or artifice to defraud 60Good faith, defenses 71Good government, scheme or artifice to defraud 61Information, money or property 43Intangible rights, money or property 44Intent 36Interstate commerce 37Knowledge 38Licenses, money or property 45Limitations, defenses 72Materiality 39Misrepresentations 40Money or property 41-45a

Money or property - Generally 41Money or property - Control 42Money or property - Information 43Money or property - Intangible rights 44Money or property - Licenses 45Money or property - Particular cases 45a

Nature of victims 46, 47Nature of victims - Generally 46Nature of victims - Convergence 47

Particular cases, money or property 45aPhone company frauds, scheme or artifice to defraud 62Race-fixing, scheme or artifice to defraud 63Reliance 48Restitution, defenses 73Scheme or artifice to defraud 49-65a

Scheme or artifice to defraud - Generally 49Scheme or artifice to defraud - Aiding and abetting 50Scheme or artifice to defraud - Banks and banking 51Scheme or artifice to defraud - Breach of fiduciary duty 52Scheme or artifice to defraud - Bribery 52b

18 U.S.C.A. § 1343


Scheme or artifice to defraud - Cable company frauds 53Scheme or artifice to defraud - Check kiting 54Scheme or artifice to defraud - Coins 55Scheme or artifice to defraud - Credit 56Scheme or artifice to defraud - Embezzlement 52aScheme or artifice to defraud - Extortion 57Scheme or artifice to defraud - Foreign government frauds 59Scheme or artifice to defraud - Foreign policy 58Scheme or artifice to defraud - Franchises 60Scheme or artifice to defraud - Good government 61Scheme or artifice to defraud - Phone company frauds 62Scheme or artifice to defraud - Race-fixing 63Scheme or artifice to defraud - Securities 64Scheme or artifice to defraud - Taxes 65Scheme or artifice to defraud - Undisclosed conflict of interest 65a

Securities, scheme or artifice to defraud 64Speedy trial, defenses 74Success of scheme 66Taxes, scheme or artifice to defraud 65Undisclosed conflict of interest, scheme or artifice to defraud 65a

31. Generally, elements of offense

Elements of federal mail or wire fraud violation are: (1) scheme to defraud; (2) money or property as object ofscheme; and (3) use of mails or wires to further scheme. Fountain v. U.S., C.A.2 (N.Y.) 2004, 357 F.3d 250, cer-tiorari denied 125 S.Ct. 1968, 544 U.S. 1017, 161 L.Ed.2d 856, rehearing denied , rehearing denied 125 S.Ct.2959, 545 U.S. 1150, 162 L.Ed.2d 907. Postal Service 35(2); Telecommunications 1014(2)

Wire fraud has three elements: a scheme to defraud, use of the wires in furtherance of the scheme, and the spe-cific intent to defraud. U.S. v. McNeil, C.A.9 (Mont.) 2003, 320 F.3d 1034, certiorari denied 124 S.Ct. 111, 540U.S. 842, 157 L.Ed.2d 77. Telecommunications 1014(2)

Mail or wire fraud occurs when person intentionally participates in scheme to defraud another of money or prop-erty and uses mails or wires in furtherance of that scheme. Cesnik v. Edgewood Baptist Church, C.A.11 (Ga.)1996, 88 F.3d 902, certiorari denied 117 S.Ct. 946, 519 U.S. 1110, 136 L.Ed.2d 834. Postal Service 35(.5);Telecommunications 1014(2)

To prove mail and wire fraud, government must prove, beyond reasonable doubt: (1) defendant's knowing andwilling participation in scheme or artifice to defraud with specific intent to defraud, and (2) use of the mails orinterstate wire communications in furtherance of scheme. U.S. v. Sawyer, C.A.1 (Mass.) 1996, 85 F.3d 713.Postal Service 48(8); Telecommunications 1014(2); Telecommunications 1018(4)

To support conviction for wire fraud, government must prove: (1) existence of scheme to defraud, (2) use of

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wire communications in furtherance of scheme, and (3) that scheme was intended to deprive victim of moneyand property. U.S. v. Merklinger, C.A.6 (Tenn.) 1994, 16 F.3d 670. Telecommunications 1014(2)

To prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant'sknowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communica-tions in furtherance of scheme. U.S. v. Cassiere, C.A.1 (Mass.) 1993, 4 F.3d 1006. Telecommunications1014(2)

To prove a wire fraud offense, Government must establish: a scheme to defraud; use of wire communications infurtherance of the scheme; and that the scheme intended to deprive a victim of money or property. U.S. v. AmesSintering Co., C.A.6 (Mich.) 1990, 927 F.2d 232. Telecommunications 1014(2)

Elements of wire fraud are scheme to defraud, false representation, and use of interstate communications. U.S.v. Pritchard, C.A.7 (Ill.) 1985, 773 F.2d 873, certiorari denied 106 S.Ct. 860, 474 U.S. 1085, 88 L.Ed.2d 899.Telecommunications 1014(2)

To prove violations of this section and section 1341 of this title, the government had to show the existence of ascheme conceived for the purpose of defrauding by means of false pretenses, representations or promises anduse of United States mails or interstate wire communications in furtherance of that scheme. U. S. v. Brien, C.A.1(Mass.) 1980, 617 F.2d 299, certiorari denied 100 S.Ct. 1854, 446 U.S. 919, 64 L.Ed.2d 273. Postal Service

35(2); Telecommunications 1014(2)

To prove wire fraud, government must show scheme, use of interstate communications, such as a telephone, andcriminal intent to defraud. U. S. v. Cowart, C.A.5 (Ga.) 1979, 595 F.2d 1023. Telecommunications 1014(2)

To prove a violation of this section, it need only be shown that a defendant was one of the participants in afraudulent scheme which was furthered by the use of interstate transmission facilities. U. S. v. Corey, C.A.2(N.Y.) 1977, 566 F.2d 429. Telecommunications 1014(11)

All this section requires is that there be a scheme to defraud and an interstate telephone call made in furtheranceof the scheme. U. S. v. Freeman, C.A.7 (Ind.) 1975, 524 F.2d 337, certiorari denied 96 S.Ct. 1126, 424 U.S. 920,47 L.Ed.2d 327. Telecommunications 1014(2)

To sustain convictions for sending cables between New York and Rio de Janeiro in furtherance of scheme to de-fraud banks and of conspiring to send such cables in violation of federal conspiracy statute, section 371 of thistitle, there must be evidence from which jury could conclude beyond reasonable doubt that defendants devisedscheme to defraud banks by means of false representations, that they caused communications to be sent in inter-state or foreign commerce for purpose of executing fraudulent scheme and that they acted as part of illegal con-spiracy. U. S. v. Whiting, C.A.2 (N.Y.) 1962, 308 F.2d 537, certiorari denied 83 S.Ct. 722, 372 U.S. 909, 9L.Ed.2d 718, certiorari denied 83 S.Ct. 734, 372 U.S. 919, 9 L.Ed.2d 718. Conspiracy 47(4); Telecommu-nications 1018(4)

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Proof of overt act was not required to establish violation of wire fraud conspiracy statute. U.S. v. Williams,D.Md.2011, 820 F.Supp.2d 663. Conspiracy 27

Elements of wire fraud require person to engage in interstate telephone conversation for purpose of executingfraudulent scheme. Seaman v. Arvida Realty Sales, Inc., M.D.Fla.1995, 910 F.Supp. 581. Telecommunications

1014(2)

Both mail and wire fraud statutes require proof of (1) defendant devising or intending to devise (2) a scheme orartifice to defraud (3) the use of mails or wires for purpose of executing or attempting to execute scheme or arti-fice, and (4) knowledge by defendant of that use. Philadelphia Reserve Supply Co. v. Nowalk & Associates,Inc., E.D.Pa.1994, 864 F.Supp. 1456. Postal Service 35(2); Telecommunications 1014(2)

Violation of wire fraud statute requires scheme to defraud, defendant's participation with specific intent and aninterstate wire transmission in furtherance of scheme. Jeffreys v. Exten, D.Del.1992, 784 F.Supp. 146. Telecom-munications 1014(2)

To show violation of mail and wire fraud statutes, plaintiff must show participation in a scheme to defraud andknowing use of the interstate mails or interstate wires to further the scheme. Crabtree v. Tristar AutomotiveGroup, Inc., S.D.N.Y.1991, 776 F.Supp. 155. Postal Service 35(5); Telecommunications 1014(2)

Two elements of mail or wire fraud charge are scheme to defraud and mailing or wire in furtherance of scheme.U.S. v. Dempsey, N.D.Ill.1990, 768 F.Supp. 1256. Postal Service 35(2); Telecommunications1014(2)

Essential elements of wire fraud are existence of scheme to defraud and use of wires for purpose of executingscheme. Delta Pride Catfish, Inc. v. Marine Midland Business Loans, Inc., E.D.Ark.1991, 767 F.Supp. 951.Telecommunications 1014(2)

To prove wire fraud claim, defendants must prove scheme to defraud, use of wire communications in further-ance of that scheme, and specific intent to defraud. American Computer Trust Leasing v. Jack Farrell ImplementCo., D.Minn.1991, 763 F.Supp. 1473, affirmed and remanded on other grounds 967 F.2d 1208, certiorari denied113 S.Ct. 414, 506 U.S. 956, 121 L.Ed.2d 338. Postal Service 35(2)

To allege violation of wire or mail fraud statute, it is necessary to show that defendants formed scheme or arti-fice to defraud, defendants used United States wires or mails or caused use of mails in furtherance of scheme,and defendants did so with specific intent to defraud. Polycast Technology Corp. v. Uniroyal, Inc.,S.D.N.Y.1989, 728 F.Supp. 926. Postal Service 48(4.1); Telecommunications 1014(2)

A violation of the federal wire fraud statute requires a scheme to defraud and the use of an interstate wire in fur-therance of the scheme. Cemar, Inc. v. Nissan Motor Corp. in U.S.A., D.Del.1988, 678 F.Supp. 1091. Telecom-

18 U.S.C.A. § 1343


munications 1014(2)

Elements of an indictable offense under federal mail and wire fraud statutes are the existence of a scheme to de-fraud and use of the mails or interstate wires in furtherance of fraudulent scheme; a “scheme to defraud” mustseek to deprive one of property through fraudulent or deceptive means, such as material misrepresentation, con-cealment, breach of duty to disclose information, or taking of bribes or kickbacks. Tryco Trucking Co., Inc. v.Belk Stores Services, Inc., W.D.N.C.1986, 634 F.Supp. 1327. Postal Service 35(2); Telecommunications

1014(2)

In order to state a wire fraud offense, the government must allege the existence of a fiduciary duty, a scheme orplan to breach that duty, a specific intent to defraud the party to whom the duty is owed, and use of the wires infurtherance of that scheme. U. S. v. Dorfman, N.D.Ill.1981, 532 F.Supp. 1118. Telecommunications1014(2)

Statutory crimes of mail fraud and fraud by wire are broad in their scope and may ordinarily be shown by proofof intentional devising of scheme to defraud and use of mails and wire communications in furtherance ofscheme. U. S. v. Sheiner, S.D.N.Y.1967, 273 F.Supp. 977, affirmed 410 F.2d 337, certiorari denied 90 S.Ct.127, 396 U.S. 859, 24 L.Ed.2d 110, certiorari denied 90 S.Ct. 68, 396 U.S. 825, 24 L.Ed.2d 76. Postal Service


32. Conversion of money, elements of offense

Conversion of money invested in a corporation to defendant's private use was not an essential element to beproved by the government in prosecution for using the mails and radio and television in interstate commercewith intent to defraud based on securing of investments in the corporation through fraudulent representations asto its assets, although evidence of such misappropriation was relevant and admissible. U. S. v. Painter, C.A.4(W.Va.) 1963, 314 F.2d 939, certiorari denied 83 S.Ct. 1873, 374 U.S. 831, 10 L.Ed.2d 1054. Postal Service

35(2); Postal Service 49(5); Telecommunications 1014(2); Telecommunications 1018(3)

Conversion of money to own use is not essential part of crime of devising fraudulent scheme and using interstatewire facilities for purposes of executing scheme and indictment was not required to allege such conversion. U.S.v. Bagdasian, C.A.4 (Md.) 1961, 291 F.2d 163, certiorari denied 82 S.Ct. 60, 368 U.S. 834, 7 L.Ed.2d 36. Tele-communications 1014(8); Telecommunications 1017

33. Credibility of scheme, elements of offense

Defendants could be convicted of wire fraud, for attempting to induce stock brokers to lend them $300,000, col-lateralized by restricted stock nontransferable until future date, with fraudulent representations regarding assetsand prospects of borrower and others, even though defendants claimed that misrepresentations as to wealth ofborrowers and others were immaterial in case of collateralized loan, loans could not be made with restrictedstock as collateral and misrepresentations were too preposterous (essentially involving entities with $76,000,000

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assets seeking $300,000 loan) for sophisticated brokers to rely upon; showing of wealth by borrower wouldmake a lender less likely to confirm value of collateralized stock, loans could be made on restricted stock, andwire fraud statute penalized attempt to commit fraud without regard for success, in order to protect the gullible.U.S. v. Coffman, C.A.7 (Ill.) 1996, 94 F.3d 330, rehearing and rehearing en banc denied , certiorari denied 117S.Ct. 1425, 520 U.S. 1165, 137 L.Ed.2d 535, certiorari denied 117 S.Ct. 1426, 520 U.S. 1165, 137 L.Ed.2d 535.Telecommunications 1014(9)

34. Damages or loss, elements of offense

Wire fraud does not require the government to prove actual financial loss or that the defendant benefited fromher scheme; rather, government merely needs to show that the accused intended to defraud his victim and thathis or her communications were reasonably calculated to deceive persons of ordinary prudence and comprehen-sion. U.S. v. Williams, C.A.11 (Ga.) 2008, 527 F.3d 1235. Telecommunications 1014(3); Telecommunica-tions 1014(7)

Showing that airline suffered financial loss as result of defendant's scheme to obtain frequent flyer awardcoupons by adding bogus mileage to frequent flyer accounts was not necessary to support wire fraud conviction.U.S. v. Loney, C.A.5 (Tex.) 1992, 959 F.2d 1332. Telecommunications 1014(7)

Arms merchants could be convicted under wire fraud statute for obtaining arms from manufacturer pursuant tomisrepresentations that arms would not be exported illegally, even though manufacturer was paid for arms anddid not suffer pecuniary harm, if jury found that merchants intended by their misrepresentations to obtain equip-ment that manufacturer would not have sold to them but for the fraudulent representations, and merchants expli-citly promised that equipment would not be exported without proper permits, so that misrepresentations went toan essential element of the bargain. U.S. v. Schwartz, C.A.2 (N.Y.) 1991, 924 F.2d 410. Telecommunications

1014(7)

Federal wire fraud statute does not require Government showing that defendant caused actual loss of money orproperty, rather than only plan or scheme to defraud. U.S. v. Oren, C.A.9 (Cal.) 1990, 893 F.2d 1057. Telecom-munications 1014(7)

Union pension trustees' and general counsel's deprivation of pension fund's control over its money by allegedlyaccepting kickback to make investment did not result in “actual money or property loss” to pension fund withinmeaning of mail or wire fraud statutes, where trustees had power and authority to invest pension's monies withothers, investment made by trustees provided guaranteed rate of return, and neither return nor corpus itselfsuffered loss. U.S. v. Zauber, C.A.3 (N.J.) 1988, 857 F.2d 137, rehearing denied, certiorari denied 109 S.Ct.1340, 489 U.S. 1066, 103 L.Ed.2d 810. Postal Service 35(9); Telecommunications 1014(7)

In charge involving mail or wire fraud, it is not necessary to show that scheme was successful or that intendedvictim suffered a loss or that defendant secured a gain. Schreiber Distributing Co. v. Serv-Well Furniture Co.,Inc., C.A.9 (Cal.) 1986, 806 F.2d 1393. Postal Service 35(7); Postal Service 35(9); Telecommunica-tions 1014(5); Telecommunications 1014(7)

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Commodities broker, when he solicited his customers to participate in block orders, implicitly represented tothem that he would try to get best possible price, and in trading ahead of his customers without telling them whathe was doing, he misled them for his own profit, which conduct was fraudulent and could support convictions ofwire and mail fraud, even though no one “lost money” because silver prices were rising and even though boardof trade had no express rule against trading ahead of a customer, other than by a floor broker. U.S. v. Dial,C.A.7 (Ill.) 1985, 757 F.2d 163, certiorari denied 106 S.Ct. 116, 474 U.S. 838, 88 L.Ed.2d 95. Postal Service


While under this section prosecution must show that some harm or injury was contemplated by the scheme, itneed not show that direct, tangible economic loss resulted to the scheme's intended victims. U.S. v. Siegel,C.A.2 (N.Y.) 1983, 717 F.2d 9. Telecommunications 1014(7)

Gravamen of offense of wire fraud is simply the misuse of interstate communication facilities to execute anyscheme or artifice to defraud and concerns itself with neither the victim's loss nor the defendant's gain. U. S. v.Condolon, C.A.4 (Va.) 1979, 600 F.2d 7. Telecommunications 1014(2)

In prosecution under this section, prosecution need not prove that the scheme was successful nor that the inten-ded victim suffered a loss or that defendant secured a gain; the gist of the offense is a scheme to defraud and theuse of interstate communications to further that scheme. U. S. v. Louderman, C.A.9 (Cal.) 1978, 576 F.2d 1383,certiorari denied 99 S.Ct. 257, 439 U.S. 896, 58 L.Ed.2d 243. See, also, U.S. v. O'Malley, C.A.Colo.1976, 535F.2d 589, certiorari denied 97 S.Ct. 383, 429 U.S. 960, 50 L.Ed.2d 326; U.S. v. Jackson, C.A.Tex.1971, 451F.2d 281, certiorari denied 92 S.Ct. 978, 405 U.S. 928, 30 L.Ed.2d 801. Telecommunications 1014(5);Telecommunications 1014(7)

Success of scheme and loss by defrauded person are not essential elements of crime under this section, and anallegation of such consequences is unnecessary to a proper indictment. U. S. v. Pollack, C.A.D.C.1976, 534 F.2d964, 175 U.S.App.D.C. 227, certiorari denied 97 S.Ct. 324, 429 U.S. 924, 50 L.Ed.2d 292. Postal Service35(7); Postal Service 35(9); Postal Service 48(4.1)

Financial loss to a telephone company and gain to defendants was unnecessary to conviction for conspiracy tocommit offenses against United States and for transmitting by wire and radio communications in interstate com-merce certain signals and sounds in furtherance of preconceived scheme to defraud telephone company of reven-ue for use of long distance telephone service and facilities. Brandon v. U. S., C.A.10 (Okla.) 1967, 382 F.2d 607. Conspiracy 28(3); Telecommunications 1014(7)

Where purported weight-reducing drug advertised by mail, radio and television was totally unable to do what itsadvertising and other promotional material said it could do, proof that particular purchasers were individuallydefrauded was completely superfluous in prosecution for mail fraud and wire fraud. U. S. v. Andreadis, C.A.2(N.Y.) 1966, 366 F.2d 423, certiorari denied 87 S.Ct. 703, 385 U.S. 1001, 17 L.Ed.2d 541. Postal Service49(11); Telecommunications 1170

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Fact that complaining witness suffers no loss because of alleged fraud of defendant in violation of this section,other than for time and expense of attachment caused by alleged fraud of defendant, does not make the allegedfraud any less criminal. Hoffman v. U.S., C.A.9 (Ariz.) 1957, 249 F.2d 338. Telecommunications 1014(7)

Allegations that welfare benefit plans of international longshoremen's union, and its local unions, were de-frauded when defendants, who were allegedly associates of organized crime family, and who allegedly had usedcrime family's influence to secure leadership positions within unions and plans, failed to disclose their connec-tions to crime family, which resulted in plans unknowingly entering into contracts with two entities that were af-filiated with crime family, were sufficient to plead elements of wire and mail fraud requiring that defendants'conduct result in loss of property. U.S. v. Coffey, E.D.N.Y.2005, 361 F.Supp.2d 102. Postal Service48(4.1); Telecommunications 1014(7)

Wire fraud statute forbade both obtaining money by false representations, and schemes to obtain money or prop-erty by false representation; thus, father's false submissions of timesheets through wire to stevedore company,stating that his son, not himself, was timekeeper for stevedore company and entitled to payment, constitutedwire fraud, even though stevedore company did not suffer any financial loss by the submission, as it was re-quired to pay someone for the timekeeping performed. U.S. v. Cooper, D.Del.1988, 677 F.Supp. 778. Telecom-munications 1014(7)

35. Duty to disclose, elements of offense

Under federal mail and wire fraud statutes, long-distance telephone service provider's including in its long-distance bills fees charged by company that conducted telephone gambling game, which provider had agreed tobill and collect for company, gave rise to duty on provider's part to correct mistaken impression that fees, i.e.gambling debts, were for long-distance charges and that customers would lose their long-distance service if feeswere not paid; fees appeared under heading “direct dialed calls” and were interspersed among charges for regu-lar long-distance calls. Kemp v. American Tel. & Tel. Co., C.A.11 (Ga.) 2004, 393 F.3d 1354. Postal Service


Defendant, who was head of comanaging underwriter of bonds issued by airport trust authority, could not beconvicted of mail fraud for failing to disclose to trust authority that underwriter received commission fee forbrokering collateralized guaranteed investment contract, as underwriter had no duty to disclose commission;there was no public or private regulation concerning reinvestment broker fees at time of transaction, and under-writing relationship did not create ongoing fiduciary duty or relationship of trust and confidence requiring dis-closure. U.S. v. Cochran, C.A.10 (Okla.) 1997, 109 F.3d 660. Postal Service 35(10)

Mail and wire fraud statutes do not impose any duty to reveal nonmaterial facts before trading in securities. Pan-fil v. ACC Corp., W.D.N.Y.1991, 768 F.Supp. 54, affirmed 952 F.2d 394. Securities Regulation 60.28(2.1)

36. Intent, elements of offense

Defendant attorney's intent to defraud mortgage company, required for wire fraud conviction, was established by

18 U.S.C.A. § 1343


evidence that she violated instructions not to close loan or disburse funds until receiving down payment fromborrower, and that she knew sale prices were substantially inflated. U.S. v. Stalnaker, C.A.5 (Miss.) 2009, 571F.3d 428. Telecommunications 1018(4)

There was sufficient evidence to support district court's finding that cigarette manufacturers and tobacco-relatedtrade organizations engaged in mail and wire fraud with specific intent to defraud smokers and potential smokersabout health effects of smoking and environmental tobacco smoke, addictiveness of nicotine, and health benefitsfrom low tar “light” cigarettes, despite defendants' contention that court applied impermissible “collective in-tent” standard, where companies' research indicated that cigarette smoking caused disease, that nicotine was ad-dictive, that light cigarettes did not present lower health risks than regular cigarettes due to smoker compensa-tion, and that secondhand smoke was hazardous to health, there was ensuing pattern of memoranda within cor-porations acknowledging that smoking was addictive, and accepted throughout corporations, and authors offraudulent statements were high ranking executives. U.S. v. Philip Morris USA Inc., C.A.D.C.2009, 566 F.3d1095, 386 U.S.App.D.C. 49, certiorari denied 130 S.Ct. 3501, 177 L.Ed.2d 1090, certiorari denied 130 S.Ct.3502, 177 L.Ed.2d 1090, rehearing denied 131 S.Ct. 57, 177 L.Ed.2d 1142, on remand 787 F.Supp.2d 68. PostalService 49(11); Telecommunications 1018(4)

Evidence was sufficient to sustain intent element of wire fraud conviction arising from fraudulent scheme ofmaintenance supervisor of owner of low-income housing to obtain self-dealing painting contract, notwithstand-ing defendant's contention that permissive atmosphere of owner with regard to conflicts of interest rendered himunaware of Department of Housing and Urban Development (HUD) regulations or of owner's own policies onconflicts of interest; there was evidence that defendant had employee handbook setting forth conflict-of-interestrules, and defendant informed subordinates that they were not eligible to bid on painting contract. U.S. v. Ad-cock, C.A.7 (Ill.) 2008, 534 F.3d 635. Telecommunications 1018(4)

Defendant's purported intent only to obtain use of victim's account by “freezing it” temporarily, rather than totransfer money to himself, thereby using account for his own profit and depriving defendant of ability to do so,was sufficient to satisfy wire fraud requirement that defendant devise scheme or artifice for obtaining money orproperty. U.S. v. Males, C.A.2 (N.Y.) 2006, 459 F.3d 154. Telecommunications 1014(8)

Jury could infer that defendant charged with wire fraud and money laundering acted with intent to defraud fromevidence that defendant transferred funds by wire from account of investment partnership for which he wasmanaging partner and placed funds in his personal account, that defendant used funds in personal account to in-vest in high-risk investments, in direct contravention of terms of partnership agreement, that defendant hid theseactions from his partners, and that defendant misrepresented to partners the status of partnership account, includ-ing profits allegedly made and amount of commissions he withdrew. U.S. v. Bailey, C.A.10 (Kan.) 2003, 327F.3d 1131. Telecommunications 1018(2); United States 34

In prosecution alleging that members of committee bidding for right to host Winter Olympic Games committedmail and wire fraud in bribing members of International Olympic Committee (IOC) during site selection pro-cess, complaint which alleged an intent to deprive bid committee of the right of honest services sufficiently al-leged necessary intent to defraud. U.S. v. Welch, C.A.10 (Utah) 2003, 327 F.3d 1081. Postal Service

18 U.S.C.A. § 1343


48(4.3); Telecommunications 1017

Scheme to defraud, for purposes of wire fraud statute, is conduct intended or reasonably calculated to deceivepersons of ordinary prudence or comprehension. U.S. v. Cochran, C.A.10 (Okla.) 1997, 109 F.3d 660. Telecom-munications 1014(8)

Misrepresentations amounting only to deceit are insufficient to maintain mail or wire fraud prosecution; instead,deceit must be coupled with contemplated harm to victim. U.S. v. Chandler, C.A.2 (N.Y.) 1996, 98 F.3d 711.Postal Service 35(5); Postal Service 35(11.1); Telecommunications 1014(9)

Requisite intent to defraud so as to support conviction for wire fraud exists if defendant acts knowingly and withspecific intent to deceive, ordinarily for purpose of causing some financial loss to another or bringing aboutsome financial gain to himself; proof of intent to defraud may arise by inference from all of the facts and cir-cumstances surrounding transactions. U.S. v. Keller, C.A.5 (Tex.) 1994, 14 F.3d 1051, rehearing denied. Tele-communications 1014(3); Telecommunications 1018(2)

In wire fraud prosecution, government must prove specific intent to defraud, which requires showing that de-fendant intended for some harm to result from his or her deceit; government does not need to prove that harmactually came about, however. U.S. v. Loney, C.A.5 (Tex.) 1992, 959 F.2d 1332. Telecommunications1014(3); Telecommunications 1014(7)

Focus of language in wire fraud statute defining scheme to defraud is on violator, not on victim, and definitionprovides fact finder with standard for determining from accused's actions whether accused possessed the requis-ite mens rea. U.S. v. Drake, C.A.10 (Kan.) 1991, 932 F.2d 861. Telecommunications 1014(3)

Intent by newspaper reporter and stockbroker to deceive and defraud financial newspaper employing reporterand knowing aid and abetment by another constituted requisite specific intent to defraud under mail and wirefraud statutes. U.S. v. Carpenter, C.A.2 (N.Y.) 1986, 791 F.2d 1024, certiorari granted 107 S.Ct. 666, 479 U.S.1016, 93 L.Ed.2d 718, affirmed 108 S.Ct. 316, 484 U.S. 19, 98 L.Ed.2d 275, 5 U.S.P.Q.2d 1059. Postal Service


Use of interstate wires did not have to actually further illegal scheme to support jurisdiction under this section,but only had to be intended to execute scheme. U.S. v. Pecora, C.A.5 (La.) 1982, 693 F.2d 421, rehearing denied697 F.2d 1092, certiorari denied 103 S.Ct. 3087, 462 U.S. 1119, 77 L.Ed.2d 1348. Telecommunications1014(6)

Bank's provision of general professional services to American financial services company and its Chinese affili-ate in connection with their scheme to defraud investors through improper foreign currency futures contracts didnot establish intent necessary to support investors' claims against bank for mail and wire fraud, money launder-ing, and transportation of stolen goods, where bank provided same services to public at large, and there was noindication that bank was aware of fraudulent scheme. Rosner v. Bank of China, S.D.N.Y.2007, 528 F.Supp.2d

18 U.S.C.A. § 1343


419. Postal Service 35(5); Telecommunications 1014(3); United States 34

Fraudulent statements by cigarette manufacturers and tobacco-related trade organizations regarding adversehealth effects of active smoking, addictiveness of nicotine and cigarette smoking, their manipulation of cigar-ettes' nicotine content, health risks attached to light and low tar cigarettes, their marketing to youth, and adversehealth effects of second-hand smoke evidenced specific intent to defraud necessary to establish violations of fed-eral mail and wire fraud statutes as predicate acts in action against manufacturers under Racketeer Influencedand Corrupt Organizations Act (RICO), where statements directly contradicted manufacturers' internal know-ledge, statements were made by employees who would reasonably have been expected to have knowledge ofmanufacturers' internal research, public positions, and long term strategies, and numerous executives and scient-ists of manufacturers participated actively in oversight and control of industry activities that were calculated toadvance their fraudulent scheme. U.S. v. Philip Morris USA, Inc., D.D.C.2006, 449 F.Supp.2d 1, for additionalopinion, see 449 F.Supp.2d 1, clarified 477 F.Supp.2d 191, on reconsideration in part 783 F.Supp.2d 23, staypending appeal denied 449 F.Supp.2d 988, stay granted 2006 WL 4608645, affirmed in part , vacated in part 566F.3d 1095, 386 U.S.App.D.C. 49, certiorari denied 130 S.Ct. 3501, 177 L.Ed.2d 1090, certiorari denied 130S.Ct. 3502, 177 L.Ed.2d 1090, rehearing denied 131 S.Ct. 57, 177 L.Ed.2d 1142, on remand 787 F.Supp.2d 68,clarified 778 F.Supp.2d 8, appeal dismissed 686 F.3d 839, 402 U.S.App.D.C. 41, clarification denied 793F.Supp.2d 164. Postal Service 35(12); Telecommunications 1014(9)

Wire fraud conspiracy indictment sufficiently stated fraudulent intent element by alleging that defendant had en-gaged in scheme to defraud by “doping” racehorse and then profiting by placing bets on horse; success ofscheme necessarily required that those betting on non-doped horses lose their wagers, and thus permitted infer-ence of intent to injure those bettors. U.S. v. Martin, S.D.N.Y.2006, 411 F.Supp.2d 370. Conspiracy 43(9)

An essential element of wire fraud is intent to defraud; government must prove that the defendant engaged orparticipated in a fraudulent scheme with an understanding of its fraudulent or deceptive character and with an in-tention to be involved in the scheme and to help it succeed with a purpose of causing actual financial harm to an-other. U.S. v. Dupre, S.D.N.Y.2004, 339 F.Supp.2d 534, affirmed 462 F.3d 131, certiorari denied 127 S.Ct.1026, 549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S. 1151, 166 L.Ed.2d 773,habeas corpus denied 2012 WL 2953970. Telecommunications 1014(3)

Conviction for wire fraud requires that person transmitting interstate communication do so with intent that thecommunication will further the scheme. Seaman v. Arvida Realty Sales, Inc., M.D.Fla.1995, 910 F.Supp. 581.Telecommunications 1014(4)

Breadth of mail fraud and wire fraud statute, designed to bar any kind of fraud human ingenuity can devise, isbalanced by their requirement that deliberate intent to defraud be shown in order for violation to be established,whether their provisions are invoked directly or as predicates for criminal or civil sanctions sought under aegisof other laws such as the Racketeer Influenced and Corrupt Organizations Act (RICO). U.S. v. Bryser,S.D.N.Y.1993, 838 F.Supp. 124, affirmed 40 F.3d 1236. Postal Service 35(5); Telecommunications1014(3)

18 U.S.C.A. § 1343


To show intent to defraud, for purposes of claim of mail fraud or wire fraud, plaintiffs were required to allegethat defendant accounting firm acted knowingly to deceive contemplating causing financial loss to another. In reCrazy Eddie Securities Litigation, E.D.N.Y.1993, 812 F.Supp. 338. Postal Service 35(5); Telecommunica-tions 1014(3)

Showing of intentional fraud or reckless indifference to truth is necessary element of allegations under mail andwire fraud statutes; inference of scienter may be established either by facts showing motive for committing fraudand clear opportunity for doing so or, where motive is not apparent, by identifying circumstances indicating con-scious behavior by defendant, though strength of circumstantial allegations must be correspondingly greater. At-lantic Gypsum Co., Inc. v. Lloyds Intern. Corp., S.D.N.Y.1990, 753 F.Supp. 505. Postal Service 35(5);Telecommunications 1014(3)

Contractor's claims, that local union officials used telephones and mails to organize illegal pickets, to negotiatewith company to end illegal campaign to have contractor sign collective bargaining agreement, and to requestpay records from company, did not satisfy the specific intent to defraud requirement of the mail and wire fraudstatutes. C & W Const. Co. v. Brotherhood of Carpenters and Joiners of America, Local 745, AFL-CIO,D.Hawai'i 1988, 687 F.Supp. 1453. Postal Service 35(5); Telecommunications 1014(3)

Requisite intent for mail or wire fraud includes a knowing and willful or reckless state of mind, which is thesame as the scienter requirement alleged for violations of securities antifraud statute section 10(b). Kronfeld v.First Jersey Nat. Bank, D.N.J.1986, 638 F.Supp. 1454. Postal Service 35(5)

In defendant's trial for wire fraud, evidence was sufficient for government to show beyond reasonable doubt thatdefendant, at time he indicated he could obtain funding for entrepreneur's project, never intended to fulfill hispromised performance, where defendant demanded and was paid more than $20,000 in fees even before he wasrequired to commit to obtaining a loan and bank examiner concluded that no legitimate lender would have com-mitted funding to project based on inadequate supporting materials obtained by defendant. U.S. v. Lenertz,C.A.4 (S.C.) 2003, 63 Fed.Appx. 704, 2003 WL 21129842, Unreported. Telecommunications 1018(4)

Defendant's testimony as to his knowledge of business's condition, at time when, according to testimony of oth-ers, he was promoting business's stock, provided sufficient evidence to establish scienter for purposes of wirefraud. U.S. v. Galasso, C.A.2 (N.Y.) 2002, 50 Fed.Appx. 488, 2002 WL 31505418, Unreported. Telecommunic-ations 1018(4)

37. Interstate commerce, elements of offense

Evidence that defendant transmitted information about fictitious employee's wages through interstate commerceto generate a fraudulent payroll check, which defendant later deposited, was sufficient to support defendant'swire fraud conviction. U.S. v. Shepard, C.A.10 (Kan.) 2005, 396 F.3d 1116, certiorari denied 125 S.Ct. 2560,545 U.S. 1110, 162 L.Ed.2d 286, post-conviction relief denied 2006 WL 1313392. Telecommunications1014(8)

18 U.S.C.A. § 1343


Interstate wire communications between Federal Reserve Banks in Texas and Colorado, defendant's employer'sbank, and defendant's banks were at the heart of defendant's fraudulent scheme to embezzle funds and were, ofnecessity, interstate, and so were sufficient to confer federal jurisdiction under the wire fraud statute; defendant'sscheme to defraud his employer was an ongoing venture, not a “one-shot” operation, and it depended upon con-tinued harmonious relations among defendant's personal banks, the Federal Reserve Banks, employer's bank,and employer. U.S. v. Mills, C.A.5 (Tex.) 1999, 199 F.3d 184. Telecommunications 1016

Scheme to cheat at blackjack at casino in Nevada had sufficient interstate connections to sustain conviction ofdefendant, who participated in blackjack practice sessions, for aiding and abetting wire fraud and interstatetravel. U. S. v. Garner, C.A.9 (Nev.) 1981, 663 F.2d 834, certiorari denied 102 S.Ct. 1750, 456 U.S. 905, 72L.Ed.2d 161. Commerce 82.6; Telecommunications 1014(8)

Arbitration judgment creditor failed to allege how or whether interstate wires or mails were used to commiteither mail or wire fraud in alleging that debtor's entry into settlement agreement with contractor, which warran-ted that it had paid or would pay creditor, as subcontractor on project, any amounts due or owing, constitutedpredicate act, precluding claim in action to enforce arbitration award of $314,925.59 that debtor and its affiliatedcompanies violated Racketeer Influenced and Corrupt Organizations Act (RICO). Plainville Elec. Products Co.,Inc. v. Vulcan Advanced Mobile Power Systems, LLC, D.Conn.2009, 638 F.Supp.2d 245. Fraud 44; Tele-communications 1014(12)

Where all parties are residents of same state, all telephone calls are presumed to be intrastate and, absent any in-dication otherwise, predicate act of wire fraud is not stated for purposes of Racketeer Influenced and CorruptOrganizations Act (RICO) claim. DeFazio v. Wallis, E.D.N.Y.2007, 500 F.Supp.2d 197. Telecommunications

1014(12)

Showing of wire fraud requires scheme to defraud and use of interstate wire communications to further thatscheme. Colony at Holbrook, Inc. v. Strata G.C., Inc., E.D.N.Y.1996, 928 F.Supp. 1224. Telecommunications

1014(2)

Offense of wire fraud requires communication crossing state lines. Center Cadillac, Inc. v. Bank Leumi TrustCo. of New York, S.D.N.Y.1992, 808 F.Supp. 213, affirmed 99 F.3d 401. Telecommunications 1014(2)

Statement in indictment that defendant's fraudulent credit card transactions were “electronically forward[ed]”sufficiently alleged essential element of crime of wire fraud of interstate use of the wires. U.S. v. Casey, C.A.8(Ark.) 2000, 205 F.3d 1348, 2000 WL 84459, Unreported. Telecommunications 1017

38. Knowledge, elements of offense

Defendant had “knowingly caused” use of interstate wire communications, as required to be convicted of wirefraud with regard to sewer repair contract with Virgin Islands, where use of interstate wire communications wasreasonably foreseeable; when defendant asked surety bond manager, who was in New York, to send bond ap-plication documents to defendant's accountant, who was in Virgin Islands, it was reasonably foreseeable that

18 U.S.C.A. § 1343


manager would send those documents via email or fax, and exchange multiple emails or faxes was reasonablyforeseeable given complexity of bond application process. U.S. v. Andrews, C.A.3 (Virgin Islands) 2012, 681F.3d 509. Telecommunications 1014(4)

Evidence that at times defendant, a government employee, took leave for partial-day absences and other timesdid not, of his managerial role over approximately 89 employees, that he disciplined other employees regardingabuse of timekeeping procedures, that he noted 8:00 a.m. to 4:30 p.m. as his core working hours when he tookleave for a full day, and that he had an angry confrontation with his program assistant when she encouraged himto take leave for time spent playing tennis was sufficient to show that defendant knew that falsifying his time re-cords had financial consequences, as required for defendant's convictions for theft of public money and wirefraud. U.S. v. Ransom, C.A.10 (Kan.) 2011, 642 F.3d 1285, certiorari denied 132 S.Ct. 1046, 181 L.Ed.2d 740.Larceny 55; Telecommunications 1018(4)

Sufficient evidence established that mortgage lenders were not fully informed about financial transactions re-garding home purchases, as required to support defendant's wire fraud conviction related to transfer of moneyfrom mortgage lender to title company handling closing. U.S. v. Baum, C.A.10 (Okla.) 2008, 550 F.3d 1210,withdrawn from bound volume , opinion vacated and superseded on rehearing 555 F.3d 1129, habeas corpusdenied 2011 WL 839279, affirmed 461 Fed.Appx. 736, 2012 WL 414440. Telecommunications 1018(4)

There was sufficient evidence that defendant knowingly participated in a client's scheme to defraud a mortgagelender to support a wire fraud conviction, despite claim that he merely showed bad judgment by blindly takingthe client's advice; evidence suggested that defendant and other buyers did not have to put any money down andreceived seller carry-back loans that did not have to be repaid, and moreover, defendant was a real estate attor-ney with more than 30 years experience. U.S. v. Jaffe, C.A.7 (Ill.) 2004, 387 F.3d 677. Telecommunications

1014(3)

This section prohibiting use of interstate wire to execute fraudulent scheme does not condition guilt upon know-ledge that interstate communication is used; use of interstate communication is included in this section merely asground for federal jurisdiction, and defendant could be found guilty without conclusive proof that he knew thatperson with whom he was speaking on telephone was in another state or that another out of state call would bemade. U. S. v. Blassingame, C.A.2 (N.Y.) 1970, 427 F.2d 329, certiorari denied 91 S.Ct. 1629, 402 U.S. 945, 29L.Ed.2d 114. Telecommunications 1014(4)

Acts done inadvertently or in good faith without intention to defraud do not satisfy knowledge and criminal in-tent elements of mail and wire fraud statutes. W.E. Darin Const. Enterprises, Inc. v. Detroit Coke Co.,W.D.N.Y.1993, 814 F.Supp. 325. Postal Service 35(5); Telecommunications 1014(3)

To prove a violation of this section proscribing wire fraud, government must prove that the defendant was aknowing participant in fraudulent scheme that was furthered by use of interstate transmission facilities. U. S. v.Abrams, S.D.N.Y.1982, 539 F.Supp. 378. Telecommunications 1014(2)

18 U.S.C.A. § 1343


Evidence, in prosecution for fraud and money laundering, that defendant helped codefendant choose a name forfictitious bank, obtained stationery with letterhead of another fictitious bank, and reassured suspicious victimsthat the banks were in fact reputable financial institutions was more than sufficient to allow inference that de-fendant was aware that the banks did not exist and that the investment program was fraudulent. U.S. v. McClain,C.A.2 (N.Y.) 2004, 108 Fed.Appx. 670, 2004 WL 1950415, Unreported. United States 34

39. Materiality, elements of offense

Materiality of falsehood is element of federal mail fraud, wire fraud, and bank fraud statutes. Neder v. U.S.,U.S.Fla.1999, 119 S.Ct. 1827, 527 U.S. 1, 144 L.Ed.2d 35, on remand 197 F.3d 1122. Banks And Banking509.10; Postal Service 35(2); Telecommunications 1014(2)

Materiality is not a separate essential element of wire fraud offense, need not be submitted to jury as separate es-sential issue, and is appropriately submitted as one component of larger factual question as to existence of fraudand scheme to defraud. U.S. v. Daily, C.A.10 (Kan.) 1990, 921 F.2d 994, certiorari denied 112 S.Ct. 405, 502U.S. 952, 116 L.Ed.2d 354. Telecommunications 1014(2); Telecommunications 1020

Evidence was sufficient for jury to find beyond reasonable doubt that defendant's scheme to defraud in violationof wire fraud statute involved at its very core a material misrepresentation, where defendant represented that hecould arrange and negotiate a $30 million loan commitment to finance development of entrepreneur's project butdefendant never could or would even attempt to obtain funding. U.S. v. Lenertz, C.A.4 (S.C.) 2003, 63Fed.Appx. 704, 2003 WL 21129842, Unreported. Telecommunications 1018(4)

40. Misrepresentations, elements of offense

Cigarette manufacturers' use of terms “light” and “low tar” to describe their low tar and nicotine cigarettes wasmisleading to public, and thus violated federal mail and wire fraud statutes, where manufacturers were awarethat smokers subconsciously adjusted their puff volume and frequency, and smoking frequency, so as to obtainand maintain their per hour and per day requirements for nicotine, and that puff volume and frequency were nottied to number of “light” cigarettes smoked. U.S. v. Philip Morris USA Inc., C.A.D.C.2009, 566 F.3d 1095, 386U.S.App.D.C. 49, certiorari denied 130 S.Ct. 3501, 177 L.Ed.2d 1090, certiorari denied 130 S.Ct. 3502, 177L.Ed.2d 1090, rehearing denied 131 S.Ct. 57, 177 L.Ed.2d 1142, on remand 787 F.Supp.2d 68. Postal Service


There was sufficient evidence that defendant made false representations in connection with a scheme to defrauda mortgage lender to support wire fraud conviction; fact that defendant bought property without ever looking in-side cast doubt on his claim that he planned to make it his primary residence. U.S. v. Jaffe, C.A.7 (Ill.) 2004,387 F.3d 677. Telecommunications 1018(4)

Fact that defendant attorney never made false representations to insurance company did not preclude his convic-tions for mail and wire fraud in light of evidence establishing fraudulent scheme to gain information regardingcompany's private claim files, to conceal true facts of claim, and to get adjuster to adjust claim in order to re-

18 U.S.C.A. § 1343


ceive more favorable settlement; it was immaterial that claim never progressed to point where defendant had tomake false representations directly to company. U.S. v. Richman, C.A.7 (Ill.) 1991, 944 F.2d 323, rehearingdenied. Attorney And Client 33; Postal Service 35(10); Telecommunications 1014(8)

Scope of fraud under mail and wire fraud statutes is broader than common-law fraud, and no misrepresentationof fact is required in order to establish such scheme to defraud. McEvoy Travel Bureau, Inc. v. Heritage Travel,Inc., C.A.1 (Mass.) 1990, 904 F.2d 786, certiorari denied 111 S.Ct. 536, 498 U.S. 992, 112 L.Ed.2d 546. PostalService 35(2); Telecommunications 1014(2)

In prosecution for conspiracy to commit offenses against United States and for transmission by wire and radiocommunication in interstate commerce of certain sounds and signals in furtherance of preconceived scheme todefraud telephone company of revenue for use of long distance telephone service and facilities in violation ofthis section, government was not required to prove that a false representation had been made by defendants tocompany nor that it had actually been deceived. Brandon v. U. S., C.A.10 (Okla.) 1967, 382 F.2d 607. Conspir-acy 43(12); Telecommunications 1014(9)

Participant in airline's frequent flyer program failed to allege that airline and others obtained frequent flyer milesthat he earned by means of deliberate misrepresentations, as required to make out proximate cause element ofmail and wire fraud claims, as predicate acts for purposes of his claim for violation of the Racketeer Influencedand Corrupt Organizations Act (RICO); rather, his fraud claim merely alleged that after his mileage was lost,airline and others falsely told him that it was not recoverable. Ficken v. AMR Corp., D.D.C.2008, 578F.Supp.2d 134. Racketeer Influenced And Corrupt Organizations 62

Attorney of designer's business partner did not engage in predicate acts of mail or wire fraud when he allegedlymade misrepresentations or omissions in patent application for designer's aluminum dump truck body; purportedmisrepresentations and omissions were made to designer's attorney and Patent and Trademark Office (PTO), notto designer. Heden v. Hill, S.D.Tex.1996, 937 F.Supp. 1230. Postal Service 35(3); Telecommunications

1014(11)

Under mail and wire fraud statutes, mailings and wire communications themselves need not contain any misrep-resentations. Philadelphia Reserve Supply Co. v. Nowalk & Associates, Inc., E.D.Pa.1994, 864 F.Supp. 1456.Postal Service 35(11.1); Telecommunications 1014(9)

No misrepresentation of fact is required in order to prove mail or wire fraud. Delta Pride Catfish, Inc. v. MarineMidland Business Loans, Inc., E.D.Ark.1991, 767 F.Supp. 951. Postal Service 35(2); Telecommunications

1014(9)

All that is necessary under this section prohibiting fraud by wire is that scheme be calculated to deceive, and thatit is not necessary that there be false representations or promises or misrepresentations of fact. U. S. v. Beckley,N.D.Ga.1965, 259 F.Supp. 567. Telecommunications 1014(9)

18 U.S.C.A. § 1343


41. Money or property, elements of offense--Generally

Taxes owed to a state, federal, or foreign government, even if not yet collected, are “property” in hands of thatgovernment, for purposes of mail and wire fraud statutes' requirement that “money or property” be object ofscheme. Fountain v. U.S., C.A.2 (N.Y.) 2004, 357 F.3d 250, certiorari denied 125 S.Ct. 1968, 544 U.S. 1017,161 L.Ed.2d 856, rehearing denied , rehearing denied 125 S.Ct. 2959, 545 U.S. 1150, 162 L.Ed.2d 907. PostalService 35(9); Telecommunications 1014(7)

Wire fraud statute is limited in scope to protection of money or property rights. U.S. v. Trapilo, C.A.2 (N.Y.)1997, 130 F.3d 547, certiorari denied 119 S.Ct. 45, 525 U.S. 812, 142 L.Ed.2d 35. Telecommunications1014(1)

Competing banks' interest in fair bidding opportunity to serve as depositories of toll bridge commission's reven-ues was not property right that could serve as basis for bank and wire fraud charges against commission officialsin connection with alleged bid-rigging scheme; although each bank's chance of receiving deposits was at least inpart dependent on condition that bidding process would be fair, such condition was at most a promise from thosein charge of bidding process that they would not interfere with process, and was not grant of right of exclusion,which is important aspect of traditional property. U.S. v. Henry, C.A.3 (Pa.) 1994, 29 F.3d 112. Banks AndBanking 509.10; Telecommunications 1014(3)

Manufacturers of high technology products were not defrauded of “property” by defendant's scheme to smuggletheir products to Soviet Bloc countries, so that manufacturers' interests did not support defendant's indictmentfor wire fraud based on his use of Telex machines in smuggling scheme; manufacturers received full sale pricefor products and manufacturers' interests in seeing that products they sold were not shipped to Soviet Bloc in vi-olation of federal law was not “property” of kind Congress intended to reach in wire fraud statute. U.S. v.Bruchhausen, C.A.9 (Cal.) 1992, 977 F.2d 464. Telecommunications 1014(7)

Frequent flyer award coupons obtained by defendant as part of fraudulent scheme were “property” for purposesof federal wire fraud statute. U.S. v. Loney, C.A.5 (Tex.) 1992, 959 F.2d 1332. Telecommunications1014(7)

Defendants acquired property of complaining airline for purposes of wire fraud statute by manipulating airline'sfrequent flyer program, which involved accessing airline's computer reservation system from travel service of-fice and replacing names of actual passengers who made particular flights with that of fictitious person enrolledas member of frequent flyer program; in acquiring mileage for fictitious person, defendants created liability forairline, which was no less misappropriation of its property than would be theft of asset of equal amount. U.S. v.Schreier, C.A.10 (Okla.) 1990, 908 F.2d 645, certiorari denied 111 S.Ct. 787, 498 U.S. 1069, 112 L.Ed.2d 850.Telecommunications 1014(8)

Money or property was object of alleged scheme to “dope” racehorse and then profit by placing bets on horse, asrequired to support wire fraud conspiracy indictment; bettors' wagers had value and thus qualified as “property,”and scheme arguably lowered value of wagers on non-doped horses. U.S. v. Martin, S.D.N.Y.2006, 411

18 U.S.C.A. § 1343


F.Supp.2d 370. Conspiracy 32

Alleged failure to provide city with accurate information regarding ownership of cable company did not deprivecity of any property interest protected by mail and wire fraud statutes. U.S. v. Slay, E.D.Mo.1989, 717 F.Supp.689. Postal Service 35(9); Telecommunications 1255

Indictment charging defendants with fraudulently depriving other companies of right to compete for defensecontract was based on invalid intangible rights theory and did not support wire fraud charge; other companiesdid not have cognizable property interest in mere expectation of contract that Government may have awarded toany or none of them. U.S. v. Berlin, E.D.Va.1989, 707 F.Supp. 832. Telecommunications 1017

42. ---- Control, money or property, elements of offense

Futures and options trader's scheme, whereby he lulled clearing firm into believing he would trade at a smalllevel, thus deceiving firm into backing his plan involving purchases of Treasury bond puts and sale of Treasurybond futures contracts in massive quantities, fit within wire fraud statute's prohibitions; despite trader's conten-tion that he sought profit from floor of exchange rather than from firm, he defrauded firm of right to control itsrisks. U.S. v. Catalfo, C.A.7 (Ill.) 1995, 64 F.3d 1070, rehearing and suggestion for rehearing in banc denied,certiorari denied 116 S.Ct. 1683, 517 U.S. 1192, 134 L.Ed.2d 784. Telecommunications 1014(9)

43. ---- Information, money or property, elements of offense

Evidence was sufficient to support finding that defendant caused to be transmitted interstate wire communica-tions as part of her scheme to defraud United States Department of Housing and Urban Development (HUD) byusing false information to obtain loans insured by Federal Housing Administration (FHA) for unqualified buy-ers, as required to sustain her wire fraud convictions; it was reasonably foreseeable to defendant that she wouldneed to use interstate wires to obtain FHA case numbers based on her experience as real estate agent. U.S. v.Mullins, C.A.10 (Colo.) 2010, 613 F.3d 1273, certiorari denied 131 S.Ct. 582, 178 L.Ed.2d 425. Telecommunic-ations 1014(4)

Confidential information of which county was allegedly deprived as result of scheme between its financial ad-visor on bond refunding project and party that allegedly bribed financial advisor to provide him with copy ofcompeting bid and other such information useful in preparing bid for his own firm, qualified as “property” pro-tected by wire fraud statute, notwithstanding its intangible nature. U.S. v. Poirier, C.A.11 (Ga.) 2003, 321 F.3d1024, opinion corrected 2003 WL 21211926, rehearing and rehearing en banc denied 66 Fed.Appx. 848, 2003WL 1957357, certiorari denied 124 S.Ct. 227, 540 U.S. 874, 157 L.Ed.2d 135. Telecommunications1014(8)

Defendant's unauthorized browsing of confidential taxpayer information did not defraud Internal Revenue Ser-vice (IRS) of its property within meaning of wire fraud statute, as government failed to show beyond a reason-able doubt that defendant intended to carry out a scheme to deprive IRS of its property interest in confidentialinformation. U.S. v. Czubinski, C.A.1 (Mass.) 1997, 106 F.3d 1069. Telecommunications 1018(4)

18 U.S.C.A. § 1343


Confidential bid information of defendant's employer which defendant disclosed to subcontractors in exchangefor bribe had sufficient commercial value to employer to support wire fraud conviction; subcontractors werewilling to pay significant funds for the information, employer was required to pay over $2 million in refunds toits clients due to excessive charges resulting from corrupt bidding process, and defendant's actions materially af-fected employer's reputation and ability to gain new business. Belt v. U.S., C.A.11 (Fla.) 1989, 868 F.2d 1208.Telecommunications 1014(7)

Confidential client information concerning planned acquisition of stock in a target company was “property” inhands of law firm at which defendant was a partner, for purposes of wire fraud statute, ever though code of pro-fessional responsibility strictly limited how law firm could use client confidences; according to the indictment,partner used this “nonpublic information” to purchase stock in target company. U.S. v. Elliott, N.D.Ill.1989, 711F.Supp. 425. Property 1; Telecommunications 1014(7)

Defendant's alleged obstruction of information relating to currency transactions and income, in connection withalleged money-laundering scheme, did not deprive Government of tangible interest and was not fraudulentscheme within ambit of wire fraud statute, since currency transaction reports and income information were notthemselves property belonging to Government but instead were important only insofar as they alerted Govern-ment to items in which they may have had a property interest. U.S. v. Riky, N.D.Ill.1987, 669 F.Supp. 196.Telecommunications 1014(7)

44. ---- Intangible rights, money or property, elements of offense

Canada's right to collect excise taxes on imported liquor, of which it was deprived by defendants' smugglingscheme, was “property” within meaning of federal wire fraud statute. Pasquantino v. U.S., U.S.2005, 125 S.Ct.1766, 544 U.S. 349, 161 L.Ed.2d 619, rehearing denied , rehearing denied 125 S.Ct. 2931, 545 U.S. 1135, 162L.Ed.2d 880, grant of post-conviction relief affirmed 230 Fed.Appx. 255, 2007 WL 1149917. Telecommunica-tions 1014(8)

McNally decision, precluding mail fraud conviction on basis of “intangible rights” theory, applied retroactivelyto wire fraud conviction returned before McNally was decided. U.S. v. Hilling, C.A.9 (Wash.) 1988, 891 F.2d205. Courts 100(1)

Allegations in indictment charging wire fraud arising out of tax shelter scheme, that three of defendant's object-ives were to interfere with IRS's proper ascertainment and collection of income taxes, to defraud Tax Court ofits right to conduct its proceedings free of fraud, and to defraud victims of their right to truthful representationsand reports, were insufficient to state claim of wire fraud under McNally which limited scope of mail fraud stat-ute (and wire fraud statute) to protection of property rights, and excluded intangible rights. U.S. v. Eckhardt,C.A.7 (Ill.) 1988, 843 F.2d 989, certiorari denied 109 S.Ct. 106, 488 U.S. 839, 102 L.Ed.2d 81. Telecommunica-tions 1017

Defendants, who allegedly furthered scheme to evade provision of Bank Secrecy Act [31 U.S.C.A. § 5313], re-quiring banks to report certain large currency transactions to Internal Revenue Service, by wiring funds on sev-

18 U.S.C.A. § 1343


eral occasions from United States to foreign country could not be charged with violation of federal wire fraudstatute [18 U.S.C.A. § 1343] under “intangible rights theory,” since defendants did not owe fiduciary duty toService. U.S. v. Richter, N.D.Ill.1985, 610 F.Supp. 480, affirmed 785 F.2d 312, affirmed 793 F.2d 1296, certior-ari denied 107 S.Ct. 191, 479 U.S. 855, 93 L.Ed.2d 124. Telecommunications 1014(8)

A scheme designed to cause the loss of intangible rights or benefits, including the loyal service of an employee,is actionable under this section. U. S. v. Dorfman, N.D.Ill.1981, 532 F.Supp. 1118. Telecommunications1014(8)

45. ---- Licenses, money or property, elements of offense

Arms export licenses issued to defendants, allegedly as result of fraud, were not “property” of the Governmentfor purposes of wire fraud statute, but merely formal embodiment of government regulation, and the value of thetangible property consisting of slip of paper, ink and seal of the Department of State was de minimis as a matterof law. U.S. v. Schwartz, C.A.2 (N.Y.) 1991, 924 F.2d 410. Telecommunications 1014(7)

Defendants, who obtained arms export license by fraud, acted in order to defraud the United States of “valuableproperty right”; thus, their convictions for violations of mail fraud statute were proper. U.S. v. Berg,E.D.N.Y.1989, 710 F.Supp. 438, on subsequent appeal 924 F.2d 410. Postal Service 35(9)

45a. ---- Particular cases, money or property, elements of offense

Iraqi people had valid property interest in proceeds from oil sales, deposited into escrow accounts pursuant to oilfor food program supervised by United Nations (UN), and consequently were victims of wire fraud allegedlycommitted by buyers who paid surcharges to Iraq government in order to receive oil allocations; UN resolutioncreating program specified that amounts in account “shall” be used to meet humanitarian needs of Iraqi popula-tion, and memorandum of understanding with Iraqi government implementing program reiterated need to usefunds to equitably provide humanitarian relief. U.S. v. Chalmers, S.D.N.Y.2007, 474 F.Supp.2d 555. Telecom-munications 1014(7)

46. Nature of victims, elements of offense--Generally

Wire fraud conviction involving scheme to obtain proceeds of bonds by fraud could be based on telephone con-versations with government informer or government agent; it was not necessary that telephone calls be betweendefendant and “true co-conspirator or victim.” U.S. v. Keats, C.A.2 (N.Y.) 1991, 937 F.2d 58, certiorari denied112 S.Ct. 399, 502 U.S. 950, 116 L.Ed.2d 348, post-conviction relief denied 856 F.Supp. 162, affirmed 50 F.3d3. Telecommunications 1014(6)

Wire fraud statutes apply even if persons defrauded unreasonably believed misrepresentations made to them;only issue is whether plan or scheme was intended to defraud and it makes no difference whether victims aregullible or skeptical, dull or bright. U.S. v. Maxwell, C.A.D.C.1990, 920 F.2d 1028, 287 U.S.App.D.C. 234.Telecommunications 1014(3)

18 U.S.C.A. § 1343


If a scheme to defraud has been or is intended to be devised, it makes no difference under this section and sec-tion 1341 of this title whether the persons the schemers intended to defraud are gullible or skeptical, dull orbright, and it is not necessary to show that scheme is calculated to deceive persons of ordinary prudence andcomprehension, as opposed to the must gullible. U. S. v. Brien, C.A.1 (Mass.) 1980, 617 F.2d 299, certioraridenied 100 S.Ct. 1854, 446 U.S. 919, 64 L.Ed.2d 273. Postal Service 35(7); Telecommunications1014(5)

United Nation's (UN) oil for food program had property interest in funds deposited into escrow account, qualify-ing program as victim for purposes of wire fraud case claiming that buyers of oil under program paid illegal sur-charges to Iraq government in order to obtain oil allocations. U.S. v. Chalmers, S.D.N.Y.2007, 474 F.Supp.2d555. Telecommunications 1014(7)

47. ---- Convergence, nature of victims, elements of offense

“Convergence,” meaning that defendant's scheme deceives same person whom it deprives of money or property,is not required to support conviction for mail or wire fraud. U.S. v. Christopher, C.A.1 (R.I.) 1998, 142 F.3d 46,certiorari denied 119 S.Ct. 617, 525 U.S. 1054, 142 L.Ed.2d 557, post-conviction relief denied 146 F.Supp.2d146, denial of post-conviction relief vacated 342 F.3d 378, certiorari denied 124 S.Ct. 950, 540 U.S. 1085, 157L.Ed.2d 763. Telecommunications 1014(7)

Better rule is to require convergence of identity of injured and deceived in order to establish violation of mailand wire fraud statutes. Lifschultz Fast Freight, Inc. v. Consolidated Freightways Corp. of Delaware,D.S.C.1992, 805 F.Supp. 1277, affirmed 998 F.2d 1009, certiorari denied 114 S.Ct. 553, 510 U.S. 993, 126L.Ed.2d 454. Postal Service 35(9); Telecommunications 1014(7)

48. Reliance, elements of offense

Sufficient evidence established that defendant's misstatements regarding status of funding for real estate devel-opment projects harmed developers' property interests, as required to support wire fraud conviction; defendantwas trying to arrange funding for real estate developers in hope they would continue projects at great risk andexpense, continuation of projects was defendant's only chance to earn fee, and defendant harmed developers'property interests by causing developers to make economic decisions about viability of real estate projects basedon misleading information. U.S. v. Carlo, C.A.2 (N.Y.) 2007, 507 F.3d 799. Telecommunications 1014(7)

In order to prove that the defendants' misrepresentations were material, as an element of the offense of wirefraud, government was not required to prove that victims relied on defendants' misrepresentations, as long as themisrepresentations had a tendency to influence the victims to invest their money with defendants. U.S. v. Ghilar-ducci, C.A.7 (Ill.) 2007, 480 F.3d 542, certiorari denied 128 S.Ct. 159, 552 U.S. 866, 169 L.Ed.2d 109, post-conviction relief denied 2010 WL 1609700, opinion after remand from court of appeals 2012 WL 1279929, cer-tiorari denied 128 S.Ct. 252, 552 U.S. 909, 169 L.Ed.2d 185. Telecommunications 1014(6)

In mail and wire fraud-predicated Racketeer Influenced and Corrupt Organizations (RICO) Act civil suit arising

18 U.S.C.A. § 1343


from long-distance telephone service provider's including in its long-distance bills fees charged by company thatconducted telephone gambling game, which provider had agreed to bill and collect for company, reliance ele-ment was not negated by fact that plaintiff customer called local exchange carrier (LEC) and was told, falsely,that his telephone service would be terminated if he did not pay listed fees; if provider's bill had contained ne-cessary disclosures, customer's call to LEC would have been unnecessary. Kemp v. American Tel. & Tel. Co.,C.A.11 (Ga.) 2004, 393 F.3d 1354. Racketeer Influenced And Corrupt Organizations 10

Although government need not prove victim reliance to make out case of mail or wire fraud, such evidence doestend to show existence of scheme to defraud and deceptive nature of defendants' solicitations. U.S. v. Ranney,C.A.1 (Mass.) 1983, 719 F.2d 1183. Postal Service 49(11); Telecommunications 1014(6)

Reliance is not a requirement in order to demonstrate mail fraud or wire fraud under the Racketeer Influencedand Corrupt Organizations Act (RICO). American Medical Ass'n v. United Healthcare Corp., S.D.N.Y.2008,588 F.Supp.2d 432. Racketeer Influenced And Corrupt Organizations 10

Plant growers, who were sophisticated actors in adversarial relationship with fungicide manufacturer which hadbeen accused of actual fraud in similar cases, could not have reasonably relied on manufacturer's representationsin course of settlement negotiations, as required to meet proximate cause requirement for Florida Civil Remediesfor Criminal Practices Act (Florida RICO) claim based on organized fraud and communications fraud in viola-tion of Florida law and mail and wire fraud in violation of federal law. Florida Evergreen Foliage v. E.I. DupontDe Nemours and Co., S.D.Fla.2004, 336 F.Supp.2d 1239, affirmed 470 F.3d 1036. Federal Civil Procedure851; Racketeer Influenced And Corrupt Organizations 111

Reliance is not an element of mail or wire fraud. In re Crazy Eddie Securities Litigation, E.D.N.Y.1993, 812F.Supp. 338. Postal Service 35(8)

49. Scheme or artifice to defraud, elements of offense--Generally

Interstate transmission of defendant's website, which was an indispensable part of the communication strand ne-cessary to provide both clients with access to defendant's deceptive website, was “incident to the accomplish-ment of an essential part of the scheme,” within meaning of federal wire fraud statute; pursuant to scheme, de-fendant designed the content of his website to give the impression that he was a criminal defense attorney au-thorized to engage in the practice of law, and defendant duped clients so that for a substantial fee he could“represent” one client's sister on criminal charges. U.S. v. Kieffer, C.A.10 (Colo.) 2012, 681 F.3d 1143, certior-ari denied 133 S.Ct. 996, 184 L.Ed.2d 772. Telecommunications 1014(6)

Evidence was sufficient to sustain element of wire fraud conviction that defendant caused wire transfer in fur-therance of fraudulent scheme, where use of the wires to transfer money from the Department of Housing andUrban Development (HUD) to owner of low-income housing was reasonably foreseeable to defendant who con-cocted fraudulent painting contract scheme to obtain such money, due to his position as maintenance supervisorwho was responsible for working with owner's board to develop five-year maintenance plan. U.S. v. Adcock,C.A.7 (Ill.) 2008, 534 F.3d 635. Telecommunications 1014(4)

18 U.S.C.A. § 1343


Wire transfer of funds, which had already been embezzled from insurance company, was not part of execution ofscheme to defraud, as required for wire fraud conviction, where funds had been under executives' control andimmediately available to them from moment that funds were transferred from insurance company's account toexecutives' personal accounts at same bank, and purpose of wire transfer to out-of-state investment accounts wasnot to conceal fraud or speed funds' availability. U.S. v. Redcorn, C.A.10 (Okla.) 2008, 528 F.3d 727, denial ofpost-conviction relief affirmed 355 Fed.Appx. 230, 2009 WL 4642369, certiorari denied 131 S.Ct. 366, 178L.Ed.2d 150. Telecommunications 1014(6)

“Organizer or leader” aggravating role sentencing enhancement was warranted in wire fraud prosecution, whicharose from defendants' scheme to “fence” property that codefendants stole from retailers by storing it at defend-ants' pawn shops and reselling it on Internet auction site; although codefendants had already been engaged inthievery prior to association with defendants, defendants and not codefendants were at forefront of underlyingwire fraud, owned shops that facilitated scheme, and directed codefendants by specifying items to be stolen,fronting expenses, and instructing as to methods for disguising sources of goods. U.S. v. Wasz, C.A.7 (Ill.)2006, 450 F.3d 720. Sentencing And Punishment 752

Phrase “scheme to defraud” means the same thing under mail fraud, wire fraud, and bank fraud statutes. U.S. v.Doherty, C.A.7 (Wis.) 1992, 969 F.2d 425, certiorari denied 113 S.Ct. 607, 506 U.S. 1002, 121 L.Ed.2d 542.Banks And Banking 509.20; Postal Service 35(10); Telecommunications 1014(8)

Radio broadcast by defendant in wire fraud case during which he stated that in his opinion there was no law re-quiring individual American freemen to file returns or pay income tax and that the Internal Revenue Service andstate got their powers over individuals from fear and intimidation rather than law, which did not include a soli-citation for money, did not constitute use of wire to further scheme or artifice to defraud; even though broadcastwas made at same time as magazine advertisement soliciting payment in return for “basics” kit on how to avoidpaying tax broadcast did not mention article or otherwise solicit money. U.S. v. Mann, C.A.10 (Utah) 1989, 884F.2d 532, rehearing denied. Telecommunications 1014(8)

Essential element of Government's proof in mail or wire fraud prosecution is proof of scheme or artifice to de-fraud. (Per Meskill, Circuit Judge, with one Circuit Judge concurring.) U.S. v. Starr, C.A.2 (Vt.) 1987, 816 F.2d94. Postal Service 35(2); Telecommunications 1014(2)

It was enough that defendant was still trying to take advantage of his victim's belief that valid option contractexisted for the purchase of rental property in order for there to be violation of this section. U. S. v. Tackett,C.A.8 (Mo.) 1981, 646 F.2d 1240. Telecommunications 1014(8)

For purposes of prosecution under this section, fraudulent scheme need not be designed to obtain money orproperty, nor need it involve breach of fiduciary relationship. U. S. v. Condolon, C.A.4 (Va.) 1979, 600 F.2d 7.Telecommunications 1014(8)

Defendant's operation of bogus talent agency which he established to meet and seduce young women was a

18 U.S.C.A. § 1343


“scheme to defraud” within meaning of this section. U. S. v. Condolon, C.A.4 (Va.) 1979, 600 F.2d 7. Telecom-munications 1014(8)

Defendants' alleged action in obtaining confidential information from telephone company and United States PostOffice by misrepresentations constituted a prosecutable scheme to defraud within tenor of this section. U. S. v.Louderman, C.A.9 (Cal.) 1978, 576 F.2d 1383, certiorari denied 99 S.Ct. 257, 439 U.S. 896, 58 L.Ed.2d 243.Telecommunications 1014(8)

Although each of alleged acts in furtherance of conspiracy to use interstate wire facilities in carrying out schemeto defraud certain hotel casinos, standing alone, may not have been unlawful, acts were impressed with criminal-ity as elements of charged “scheme and artifice to defraud” involving transmission in interstate commerce bymeans of wire communications of signs, signals and sounds in violation of this section. U. S. v. Scallion, C.A.5(La.) 1976, 533 F.2d 903, certiorari denied 97 S.Ct. 824, 429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548 F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S.943, 56 L.Ed.2d 784. Conspiracy 43(6)

Establishment of charges of mail fraud, using a fictitious name to defraud, and wire fraud required proof ofscheme to defraud. Fineberg v. U. S., C.A.9 (Cal.) 1968, 393 F.2d 417. Postal Service 35(2); Telecommu-nications 1014(2)

Actions of defendants, indicted for violation of this section and for conspiracy to do so, to secure money for re-lease of person allegedly held by Mexican police officials on a charge of robbery, amounted to a fraudulentscheme of implied or expressed misrepresentations. Huff v. U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certioraridenied 83 S.Ct. 289, 371 U.S. 922, 9 L.Ed.2d 230. Telecommunications 1014(9)

Complaint alleging mail and wire fraud must show existence of scheme to defraud, defendant's knowing or in-tentional participation in scheme, and use of interstate mails or transmission facilities in furtherance of scheme.Bernstein v. Misk, E.D.N.Y.1997, 948 F.Supp. 228. Postal Service 35(2); Telecommunications1014(2)

Scheme to defraud is an essential element of the crimes of mail and wire fraud, and government must allege andprove that defendant possessed a fraudulent intent; government need not prove that intended victim of the fraudwas actually harmed; it is enough to show defendant contemplated doing actual harm, that is, something morethan merely deceiving the victim. U.S. v. Harris, S.D.N.Y.1992, 805 F.Supp. 166. Postal Service 35(5);Telecommunications 1014(3); Telecommunications 1014(7)

Scope of fraud is broader under wire and mail fraud statutes than it is under the common law, but the schememust be intended to deceive another by means of false or fraudulent pretenses, representations, promises, or oth-er deceptive conduct. Lavery v. Kearns, D.Me.1992, 792 F.Supp. 847. Postal Service 35(2); Telecommu-nications 1014(9)

18 U.S.C.A. § 1343


Fraudulent invoice scheme did not come to fruition when the scheme was detected or when defendant receivedlast payment from victim, for purposes of wire fraud and mail fraud charges stemming from wire transfer andmailing that occurred after detection of the scheme, where the scheme was a continuing scheme in which de-fendant repeatedly submitted fraudulent invoices to and received payment from victim. U.S. v. Viertel, C.A.2(N.Y.) 2004, 98 Fed.Appx. 68, 2004 WL 1178777, Unreported, post-conviction relief denied 2009 WL 22863,error coram nobis denied 2012 WL 1604712, affirmed 505 Fed.Appx. 40, 2012 WL 6116512. Postal Service

35(7); Postal Service 35(8); Telecommunications 1014(8)

50. ---- Aiding and abetting, scheme or artifice to defraud, elements of offense

By continuing to handle principal's loan closings despite being aware of inflated values of the properties andtrue source of the down payments, defendant attorney played integral part in perpetrating wire fraud, as requiredto support aiding and abetting conviction. U.S. v. Stalnaker, C.A.5 (Miss.) 2009, 571 F.3d 428. Telecommunica-tions 1014(11)

Defendant, whose act of verifying information to vendor's agent was part of the continuing scheme to defraud,could be convicted of aiding and abetting a scheme to defraud by wire based on a telephone call betweenlender's agent and the principal. U.S. v. Westbo, C.A.5 (Tex.) 1984, 746 F.2d 1022. Telecommunications1014(11)

Despite particular defendant's contention that cigarettes were packaged in plain brown cardboard cartons andthat he could not be charged with knowledge that he was transporting untaxed cigarettes, evidence in prosecu-tion for wire fraud was sufficient to sustain his conviction for aiding and abetting, it being not necessary thatsuch defendant know all details of the criminal venture to be considered a participant in its criminal purpose.U.S. v. DeFiore, C.A.2 (N.Y.) 1983, 720 F.2d 757, certiorari denied 104 S.Ct. 1684, 466 U.S. 906, 80 L.Ed.2d158, certiorari denied 104 S.Ct. 3511, 467 U.S. 1241, 82 L.Ed.2d 820. Telecommunications 1018(4)

Even assuming that conversation between defendant and other party eight weeks before money order was sentdid not give rise to inference that defendant assented to other party's scheme before interstate transmission, de-fendant's acts of negotiating money order drafts were still part of continuing scheme to defraud for purposes ofconvicting defendant of aiding and abetting a wire fraud scheme to defraud telegraph company. U. S. v. Phillips,C.A.8 (Mo.) 1982, 688 F.2d 52. Telecommunications 1014(6)

In prosecution for devising scheme to defraud purchasers of corporate bonds which had been stolen, forged andfalsely made, and executing scheme by transmitting wire communications in interstate and foreign commerce,defendant who had possession of stolen bonds and carried them to place where he received down payment wasaider and abettor and was therefore equally guilty as principal. U. S. v. Conte, C.A.6 (Ohio) 1965, 349 F.2d 304,certiorari denied 86 S.Ct. 313, 382 U.S. 926, 15 L.Ed.2d 339. Telecommunications 1014(11)

In prosecution for wire fraud and wire fraud conspiracy arising from alleged scheme to “dope” racehorse andthen profit by placing bets on horse, indictment sufficiently stated fraudulent intent element of substantive of-fense as to defendant under aider and abettor theory, even though defendant was alleged only to have doped

18 U.S.C.A. § 1343


horse but not to have used wires or placed bets himself; defendant's specific intent to advance wire fraud ofcodefendant, who was alleged to have used wires and placed bets, could be inferred from defendant's allegedparticipation in conspiracy. U.S. v. Martin, S.D.N.Y.2006, 411 F.Supp.2d 370. Conspiracy 43(9); Tele-communications 1017

To prevail on claim of aiding and abetting mail or wire fraud, plaintiff must prove existence of primary fraud,knowledge of the fraud by the alleged aider and abettor, and substantial assistance in the fraud. GLM Corp. v.Klein, S.D.N.Y.1988, 684 F.Supp. 1242. Postal Service 35(20); Telecommunications 1014(2)

51. ---- Banks and banking, scheme or artifice to defraud, elements of offense

Fact that borrowers, in contractors' fraud scheme in which bridge loans released for purpose of financing houseconstruction instead were used to pay for previous unfinished projects, were made whole by bank after schemefell apart, did not preclude inclusion of made-whole loan amounts in loss calculation of federal wire fraud pro-secution against contractors. U.S. v. Castellano, C.A.7 (Ill.) 2003, 349 F.3d 483. Sentencing And Punishment

736

Wire fraud offense “affected” financial institution only if institution itself were victimized by fraud, as opposedto scheme's mere utilization of financial institution in transfer of funds. U.S. v. Ubakanma, C.A.4 (Md.) 2000,215 F.3d 421, appeal from dismissal of post-conviction relief dismissed 56 Fed.Appx. 145, 2003 WL 329694.Telecommunications 1014(2)

Defendant, who created a bank to issue phony paper that was passed at other banks, was guilty of violating thissection based on action of two purchasers of bogus paper in transmitting telegraphic money orders from Ok-lahoma to New York to pay for the phony cashiers' checks as payment was an integral part of the overall schemefrom its inception and defendant intended to profit, and scheme to defraud had not previously terminated astransmissions were made by codefendants to transfer proceeds and to insure delivery of additional boguscashiers checks. U. S. v. Puckett, C.A.10 (Okla.) 1982, 692 F.2d 663, certiorari denied 103 S.Ct. 579, 459 U.S.1091, 74 L.Ed.2d 939, certiorari denied 103 S.Ct. 1276, 460 U.S. 1024, 75 L.Ed.2d 497. Telecommunications

1014(8)

Telephone calls made to fictitious bank in West Indies by Las Vegas hotel, which granted defendant cash orcredit upon receipt of worthless cashier's checks issued by such “bank,” for purpose of verifying the checks werewithin reach of this section. U. S. v. Wolfson, C.A.9 (Nev.) 1980, 634 F.2d 1217. Telecommunications1014(8)

Government's complaint, which sought to hold bank and one employee civilly liable under Financial InstitutionsReform, Recovery, and Enforcement Act (FIRREA), did not sufficiently plead claims of wire or mail fraud“affecting” a financial institution based bank's fraudulent omissions or on alleged misrepresentations to custom-ers that bank's pricing of foreign exchange (FX) trades under bank's “standing instructions” program were de-signed to “minimize costs,” provide the “best rate of the day” and the same pricing for ERISA and non-ERISAcustomers, or provide netting service; to whatever extent cost minimization reference could have been mislead-

18 U.S.C.A. § 1343


ing, complaint failed to allege facts giving rise to a strong inference that the bank intended to deceive its clients,complaint did not allege that “best rate of the day” statement was misleading, the representations regarding net-ting reasonably could have been understood to mean that netting was a service the bank offered, without neces-sarily guaranteeing that netting always would occur, complaint failed to allege any customs of the trade or otherobjective circumstances permitting the conclusion that the bank's customers reasonably would have expecteddisclosure of the bank's pricing practices, profits, or any other information so as to have rendered the transac-tions inherently unfair, and the allegations were insufficient to found a claim of fraud on any fiduciary relation-ships the bank may have had. U.S. v. Bank of New York Mellon, S.D.N.Y.2013, 2013 WL 1749418. Postal Ser-vice 35(14); Telecommunications 1014(12)

52. ---- Breach of fiduciary duty, scheme or artifice to defraud, elements of offense

Abuse of trust sentencing enhancement was warranted in federal wire fraud prosecution arising from contractors'scheme in which bridge loans released for purpose of financing house construction instead were used to pay forprevious unfinished projects; contractors persuaded their customers to let them act on their behalf in certifyingconstruction milestones required for bank's release of loans, then abused trust reposed by those customers. U.S.v. Castellano, C.A.7 (Ill.) 2003, 349 F.3d 483. Sentencing And Punishment 758

For purposes of wire fraud prosecution, fiduciary duties are breached by freight forwarder who, for his own per-sonal gain causes his principal to breach exclusive dealing agreement, locates favorable freight rates, concealsthat rate from principal, brings in middleman to have middleman file tariff with 50 percent higher rate, andcauses his principal to pay 50 percent higher rate, all in order to take for himself share of difference between fa-vorable rate and higher rate. U.S. v. Ventura, C.A.2 (N.Y.) 1983, 724 F.2d 305. Telecommunications1014(8)

Evidence that defendants, corporate officers, received cash proceeds and used them for noncorporate purposes inbreach of their fiduciary duties to act in best interests of the corporation and to disclose material information tocorporation and its stockholders was sufficient to sustain defendants' convictions for wire fraud. U.S. v. Siegel,C.A.2 (N.Y.) 1983, 717 F.2d 9. Telecommunications 1018(4)

Indictment charging sitting member of United States House of Representatives with violations of honest serviceswire fraud statute adequately alleged honest services fraud predicated on conflict of interest, where indictmentalleged that defendant devised scheme to defraud citizens of his honest services, transmitted wire communica-tion in furtherance of that scheme, and failed to disclose fact that he had solicited and received bribes when per-forming official acts. U.S. v. Jefferson, E.D.Va.2008, 562 F.Supp.2d 719. Telecommunications 1017

Mere breach of a fiduciary duty, without more, did not rise to level of a criminal violation under this section, butfailure to disclose material information and affirmative conduct designed to deprive union pension fund of relev-ant information were allegations which made breach a criminal act. U. S. v. Dorfman, N.D.Ill.1981, 532 F.Supp.1118. Telecommunications 1014(8)

Breach of trust of fiduciary who uses his position to make secret profits has been held to be fraud within mean-

18 U.S.C.A. § 1343


ing of this section and section 1341 of this title. U. S. v. Dorfman, S.D.N.Y.1971, 335 F.Supp. 675. Postal Ser-vice 35(10); Telecommunications 1014(8)

52a. ---- Embezzlement, scheme or artifice to defraud, elements of offense

False statements or deception were not a necessary component of scheme to defraud for purposes of wire fraudallegedly committed by insurance executives by embezzling incoming premiums by moving them from insur-ance company's accounts to their personal accounts and then wiring funds to personal investment accounts heldout of state. U.S. v. Redcorn, C.A.10 (Okla.) 2008, 528 F.3d 727, denial of post-conviction relief affirmed 355Fed.Appx. 230, 2009 WL 4642369, certiorari denied 131 S.Ct. 366, 178 L.Ed.2d 150. Telecommunications1014(8)

52b. ---- Bribery, scheme or artifice to defraud, elements of offense

Relationships between defendant, a hospital administrator, and three state legislators satisfied the quid pro quorequirement for convictions for conspiracy to commit bribery and conspiracy to commit honest services fraud bya scheme to bribe state legislators; defendant made regular cash payments to two of the legislators, which de-fendant attempted to cloak as compensation for their virtually non-existent “consulting” services, and securedthe award of a hospital vendor contract to a contractor in which the third legislator had an interest, in return forofficial acts by the legislators that benefited various hospitals defendant administered. U.S. v. Rosen,S.D.N.Y.2011, 809 F.Supp.2d 263, affirmed 716 F.3d 691. Conspiracy 28(3); Conspiracy 33(2.1)

Indictment's allegations that, through six interstate wire communications, lobbyist gave things of value to publicofficials including one at Department of Justice (DOJ), was aware of disclosure rules and that the officials werein violation of those rules by accepting his gifts, and officials took actions favorable to lobbyist's clients weresufficient to charge lobbyist with honest services fraud by means of bribery; even though there was no linkbetween gift-giving and a specific official act, allegations claimed stream-of-benefits theory. U.S. v. Ring,D.D.C.2009, 628 F.Supp.2d 195. Telecommunications 1017

53. ---- Cable company frauds, scheme or artifice to defraud, elements of offense

Alleged scheme to build and sell descramblers enabling cable television subscribers to receive additional cablechannels without paying cable company is scheme or artifice to defraud and violates mail and wire fraud stat-utes, even if no false representation or statement is made. U.S. v. Norris, N.D.Ind.1993, 833 F.Supp. 1392, af-firmed 34 F.3d 530. Postal Service 35(10); Telecommunications 1014(8)

54. ---- Check kiting, scheme or artifice to defraud, elements of offense

“Check kiting” scheme, involving passing of number of checks backed by insufficient funds, could form basisfor wire fraud conviction under federal statute; scheme, not single instance, was involved. U.S. v. Rafsky, C.A.3(Pa.) 1986, 803 F.2d 105, certiorari denied 107 S.Ct. 1568, 480 U.S. 931, 94 L.Ed.2d 760. Telecommunications

1014(8)

18 U.S.C.A. § 1343


Viewed in the light more favorable to the government, evidence concerning defendant's participation in large-scale “kiting” operation which left telegraph company short almost $68,000 clearly supported inference that de-fendant had devised a scheme to defraud the telegraph company within scope of this section which provides pen-alties for using interstate telegraph wire services in a scheme to defraud. U. S. v. Davila, C.A.5 (Tex.) 1979, 592F.2d 1261, rehearing denied 597 F.2d 283, certiorari denied 100 S.Ct. 85, 444 U.S. 843, 62 L.Ed.2d 56. Tele-communications 1018(2)

Check kiting is within reach of this section and section 1343 of this title. U. S. v. Gross, C.A.8 (Iowa) 1969, 416F.2d 1205, certiorari denied 90 S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Postal Service 35(10); Tele-communications 1014(8)

55. ---- Coins, scheme or artifice to defraud, elements of offense

Evidence established that defendants possessed coins in question, had sold coins to interested collectors anddealers and had used mails and interstate wires to advertise and promote sale of coins to public, in prosecutionfor mail fraud, wire fraud, and fraudulent possession and sale of altered coins and conspiracy. U. S. v. Sheiner,S.D.N.Y.1967, 273 F.Supp. 977, affirmed 410 F.2d 337, certiorari denied 90 S.Ct. 127, 396 U.S. 859, 24L.Ed.2d 110, certiorari denied 90 S.Ct. 68, 396 U.S. 825, 24 L.Ed.2d 76. Conspiracy 47(5); Counterfeiting

18; Postal Service 49(11); Telecommunications 1018(4)

56. ---- Credit, scheme or artifice to defraud, elements of offense

Defendant's placement of orders far in excess of his ability to pay, selling goods in bulk at or below cost and di-verting proceeds to secret bank accounts before petitioning for bankruptcy established scheme to defraud so asto support convictions for mail and wire fraud. U.S. v. Griffith, C.A.6 (Ky.) 1994, 17 F.3d 865, certiorari denied115 S.Ct. 149, 513 U.S. 850, 130 L.Ed.2d 89. Postal Service 35(10); Telecommunications 1014(8)

Evidence was sufficient to support convictions of conspiracy, wire fraud and interstate transportation of stolenproperty, arising out of fraudulent loan brokerage business wherein defendants induced investors into advancingfunds for purchase of so-called “ICC-290 letters of credit” which were not the investments they were represen-ted to be. U.S. v. Brown, C.A.7 (Ill.) 1984, 739 F.2d 1136, certiorari denied 105 S.Ct. 331, 469 U.S. 933, 83L.Ed.2d 268. Conspiracy 47(5); Receiving Stolen Goods 8(3); Telecommunications 1018(4)

In prosecution for conspiracy and wire fraud, evidence that, while not causing wires charging money orders tovictims' credit cards to be sent, defendant picked up money orders after they had been sent was sufficient to sup-port her conviction. U. S. v. Saavedra, C.A.9 (Cal.) 1982, 684 F.2d 1293. Conspiracy 47(5); Telecommu-nications 1018(4)

Evidence was sufficient to sustain conviction of using fictitious credit card numbers in connection with long dis-tance telephone calls. U. S. v. Jones, C.A.5 (Fla.) 1977, 554 F.2d 251, certiorari denied 98 S.Ct. 202, 434 U.S.866, 54 L.Ed.2d 142. Telecommunications 1018(4)

18 U.S.C.A. § 1343


Evidence was sufficient to support conviction of defendant, who along with codefendant set up an office, estab-lished phony line of credit, and obtained and resold series of shipments of frozen food while only paying for firstorder in series of purchases, of conspiracy, mail fraud, fraud by wire and interstate transportation of goods takenby fraud. U. S. v. Payne, C.A.9 (Cal.) 1973, 474 F.2d 603. Conspiracy 47(5); Postal Service 49(11);Receiving Stolen Goods 8(3); Telecommunications 1018(4)

Artifice of defendant of buying food products on falsely described credit of two dummy companies to defraudcomplaining witness by intended nonpayment in full of credited purchase price and immediate sale by defendantof food products for cash to be kept for sole use of defendant and not for assets of companies and use of inter-state wires for that purpose violates this section. Hoffman v. U.S., C.A.9 (Ariz.) 1957, 249 F.2d 338. Telecom-munications 1014(8)

57. ---- Extortion, scheme or artifice to defraud, elements of offense

For purposes of this section, fraud and extortion are not mutually exclusive, and mere fact extortion may consti-tute one aspect of transaction does not insulate fraudulent representations and plan from prosecution as schemeto defraud. Huff v. U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certiorari denied 83 S.Ct. 289, 371 U.S. 922, 9L.Ed.2d 230. Telecommunications 1014(8)

58. ---- Foreign policy, scheme or artifice to defraud, elements of offense

Defendant could not be convicted of wire fraud involving scheme to defraud United States of right to implementits foreign policy free from stealth, false statement and fraud. U.S. v. Elkins, C.A.11 (Ga.) 1989, 885 F.2d 775,certiorari denied 110 S.Ct. 1300, 494 U.S. 1005, 108 L.Ed.2d 477. Telecommunications 1014(7)

59. ---- Foreign government frauds, scheme or artifice to defraud, elements of offense

Common law revenue rule, which bars court from enforcing foreign sovereign's tax laws, did not preclude wirefraud prosecution of defendants who were engaged in smuggling scheme in order to evade Canadian liquor im-portation taxes; any resulting enforcement of foreign revenue law was mere collateral consequence of govern-ment's independent interest in punishing fraudulent domestic criminal conduct. Pasquantino v. U.S., U.S.2005,125 S.Ct. 1766, 544 U.S. 349, 161 L.Ed.2d 619, rehearing denied , rehearing denied 125 S.Ct. 2931, 545 U.S.1135, 162 L.Ed.2d 880, grant of post-conviction relief affirmed 230 Fed.Appx. 255, 2007 WL 1149917. Tele-communications 1016

Defendants could not be convicted of wire fraud based on scheme to defraud Canada and province of Nova Sco-tia of excise duties and tax revenues on tobacco, as part of smuggling scheme involving transportation of to-bacco from Akwesasne Reservation in New York through Passamaquoddy Reservation in Maine, as scheme todefraud foreign government of customs and tax revenues imposed under foreign law is outside parameters offrauds cognizable under federal wire fraud statute; district court and Court of Appeals could not constitutionallydetermine whether defendants had violated or intended to violate revenue laws of foreign sovereign, both undercommon law revenue rule against enforcement of foreign tax judgments and principle of judicial noninterferencein legislative and executive branches' exercise of foreign policy-making powers, particularly in light of federal

18 U.S.C.A. § 1343


smuggling statute criminalizing such activities only if foreign government had reciprocal law, as effect could notbe given to wire fraud statute in these conditions without threatening reciprocity provision in smuggling statute.U.S. v. Boots, C.A.1 (Me.) 1996, 80 F.3d 580, certiorari denied 117 S.Ct. 263, 519 U.S. 905, 136 L.Ed.2d 188.Telecommunications 1014(8)

60. ---- Franchises, scheme or artifice to defraud, elements of offense

Evidence that defendants sold franchise rights to commercial cooking units, that cooking units were not shippedto franchisees as agreed and that defendants did not have facilities which were represented to franchisees sus-tained convictions of wire and mail fraud. U. S. v. Hildebrand, C.A.5 (Fla.) 1975, 506 F.2d 406, certioraridenied 95 S.Ct. 1961, 421 U.S. 968, 44 L.Ed.2d 457. Postal Service 49(11); Telecommunications1018(4)

61. ---- Good government, scheme or artifice to defraud, elements of offense

Payments by lobbyist to legislator for entertainment, lodging, golf, sports events, and the like would not consti-tute violations of Travel Act, mail fraud statutes, or wire fraud statutes if aim of lobbyist were simply to cultiv-ate business or political “friendship” with legislator. U.S. v. Sawyer, C.A.1 (Mass.) 1996, 85 F.3d 713. Com-merce 82.10; Postal Service 35(9); Telecommunications 1014(8)

62. ---- Phone company frauds, scheme or artifice to defraud, elements of offense

Fact that defendants themselves did not make fraudulent statements to victims over the telephone did not pre-clude liability for wire fraud so long as they were knowing participants in scheme to defraud. U.S. v. Hanley,C.A.9 (Nev.) 1999, 190 F.3d 1017, denial of post-conviction relief affirmed 322 F.3d 1198, denial of post-conviction relief affirmed in part, reversed in part 87 Fed.Appx. 668, 2004 WL 259250, habeas corpus dismissed2005 WL 2615381. Telecommunications 1014(4)

Evidence supported defendant's conviction of wire fraud on showing that he illegally used two multifrequencysignal generators or “blue boxes” which enabled callers to reroute long-distance telephone calls and avoid beingbilled for services. U. S. v. Cornfeld, C.A.9 (Cal.) 1977, 563 F.2d 967, certiorari denied 98 S.Ct. 1484, 435 U.S.922, 55 L.Ed.2d 515. Telecommunications 1018(4)

The operation of a “black box” to subvert the billing system of a telephone communication carrier is a violationof this section. U. S. v. Harvey, C.A.8 (Ark.) 1976, 540 F.2d 1345. Telecommunications 1014(8)

Where defendant devised scheme to defraud telephone company through promotion and sale of “blue boxes” tocustomers for purpose of making fraudulent phone calls and, in furtherance of that scheme, defendant demon-strated “blue box” to undercover agent by making several overseas calls to information operators, defendantcould be convicted of wire fraud and there was no requirement that call be completed for which toll chargeswere imposed. U. S. v. Patterson, C.A.5 (Tex.) 1976, 534 F.2d 1113. Telecommunications 1014(6)

18 U.S.C.A. § 1343


There was sufficient evidence in prosecution of defendant for wire fraud in connection with his placing ofdemonstration calls in connection with his attempt to sell blue boxes to show that the telephone calls were com-pleted, contrary to claim of defendant that government failed to prove as an essential element the completion ofphone calls. U. S. v. Patterson, C.A.5 (Tex.) 1976, 528 F.2d 1037, rehearing denied 534 F.2d 1113, certioraridenied 97 S.Ct. 361, 429 U.S. 942, 50 L.Ed.2d 313. Telecommunications 1018(4)

Even though friends of president and general manager of telephone company were entitled to calls free from thetariffs, the conversion of received collect to sent paid messages and the timing and ticketing of these calls atthree minutes or less, regardless of actual duration, constituted fraud in connection with settlement agreementwith telephone company with interconnecting lines. U. S. v. Henny, C.A.9 (Wash.) 1975, 527 F.2d 479, certior-ari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815. Telecommunications 1012

Use of a blue-box to bypass telephone company recording devices and avoid charges for long distance calls viol-ated this section, as against defendant's contention that this section only proscribed fraudulent schemes in whichthe party intended to be defrauded was the party receiving the communication, not the party transmitting thecommunication. U. S. v. Freeman, C.A.7 (Ind.) 1975, 524 F.2d 337, certiorari denied 96 S.Ct. 1126, 424 U.S.920, 47 L.Ed.2d 327. Telecommunications 1014(8)

Evidence, including evidence that codefendants made unauthorized connection with telephone company's line,made long distance interstate calls without having subscribed for telephone service, and gave for billing pur-poses phone numbers of other persons who did not know codefendants and who did not give permission for theirnumbers to be so used, sustained conviction under this section relating to fraud by wire, radio, or television.Scott v. U. S., C.A.5 (Ga.) 1971, 448 F.2d 581, certiorari denied 92 S.Ct. 955, 405 U.S. 921, 30 L.Ed.2d 791.Telecommunications 1018(4)

This section relating to fraud by wire, radio or television is not applicable only to schemes to defraud third per-sons to whom communications are directed by means of wire, radio or television, but is also applicable to mereschemes to obtain free telephone service. U.S. v. DeLeeuw, E.D.Wis.1974, 368 F.Supp. 426. Telecommunica-tions 1012

This section proscribing transmission, by means of wire, of sounds for purpose of executing scheme to defraudwould be violated if defendant attached to wires of telephone company a “blue box” which set forth electronicsounds or frequencies which activated telephone company's long-distance telephonic mechanisms and enableddefendant to circumvent telephone company's billing equipment in making long distance calls. U. S. v. Jaworski,D.C.Minn.1972, 343 F.Supp. 406. Telecommunications 1014(8)

Alleged scheme whereby defendants employed one defendant, telephone company employee, to place long dis-tance calls without charge, thus allegedly depriving telephone company of money due for calls and honest ser-vices of its employee, constituted scheme to deceive and defraud telephone company within this section prohib-iting fraud by wire. U. S. v. Beckley, N.D.Ga.1965, 259 F.Supp. 567. Telecommunications 1014(10)

18 U.S.C.A. § 1343


63. ---- Race-fixing, scheme or artifice to defraud, elements of offense

Evidence sustained convictions of two counts of fraud by wire involving scheme to obtain money by means offalse and fraudulent pretenses and representations concerning past-posting scheme for placing of wagers onraces which had been completed. Battaglia v. U. S., C.A.9 (Cal.) 1965, 349 F.2d 556, certiorari denied 86 S.Ct.430, 382 U.S. 955, 15 L.Ed.2d 360, rehearing denied 86 S.Ct. 613, 382 U.S. 1021, 15 L.Ed.2d 537. Telecommu-nications 1018(4)

Evidence warranted conviction of violation of this section in obtaining money from another by fraudulentscheme in connection with alleged “fixed” horse race, in execution of which scheme defendant used interstatecommunication by telephone, and received money by interstate telegraph. House v. U.S., C.A.6 (Mich.) 1957,241 F.2d 414. Telecommunications 1018(4)

Alleged scheme to “dope” racehorse and profit thereby was within wire fraud statute's “scheme to defraud” ele-ment, regardless of absence of affirmative misrepresentations; doping scheme violated fundamental notions ofhonesty, fair play and right dealing. U.S. v. Martin, S.D.N.Y.2006, 411 F.Supp.2d 370. Telecommunications

1014(8)

In prosecution for violation of this section proscribing fraud by wire, evidence established that defendant wasguilty of certain violations of this section in that he made a number of telephone calls from Maryland to Virginiain which he made various false statements to induce two parties to put up money in furtherance of a pretendedplan whereby they were to win bets on horse races through the purported act of defendant in placing the betsafter the races had been run. U. S. v. Bagdasian, D.C.Md.1960, 188 F.Supp. 683, affirmed 291 F.2d 163, certior-ari denied 82 S.Ct. 60, 368 U.S. 834, 7 L.Ed.2d 36. Telecommunications 1018(4)

64. ---- Securities, scheme or artifice to defraud, elements of offense

Scheme to defraud Securities Exchange Commission and obstruct its investigation of insider trading did not vi-olate wire fraud statute. U.S. v. Victor Teicher & Co., L.P., S.D.N.Y.1989, 726 F.Supp. 1424. Telecommunica-tions 1014(8)

Defendant engaged in wire fraud by making telephone calls in furtherance of scheme to defraud investors in oiland gas wells. George v. Blue Diamond Petroleum, Inc., W.D.La.1989, 718 F.Supp. 539, affirmed 922 F.2d 838.Telecommunications 1014(8)

65. ---- Taxes, scheme or artifice to defraud, elements of offense

Defendants' routine concealment of imported liquor from Canadian officials and failure to declare those goodson customs forms constituted “scheme or artifice to defraud” Canada of import tax revenues, within meaning offederal wire fraud statute. Pasquantino v. U.S., U.S.2005, 125 S.Ct. 1766, 544 U.S. 349, 161 L.Ed.2d 619, re-hearing denied , rehearing denied 125 S.Ct. 2931, 545 U.S. 1135, 162 L.Ed.2d 880, grant of post-conviction re-lief affirmed 230 Fed.Appx. 255, 2007 WL 1149917. Telecommunications 1014(8)

18 U.S.C.A. § 1343


Scheme alleged in indictment charging defendants with wire fraud, which was based upon alleged misrepresent-ation by which defendant led manufacturer to believe that regulated solvent defendant was buying for distribu-tion would be exported and thus was not subject to excise tax, was scheme to deprive within meaning of wirefraud statute, as required for indictment to be legally sufficient, given that alleged misrepresentation allowed de-fendant to avoid paying price increase necessitated by excise tax and prevented manufacturer from receivingmoney due it under agreement, regardless of whether those funds would have been passed on to government.U.S. v. Shellef, C.A.2 (N.Y.) 2007, 507 F.3d 82. Telecommunications 1017

Canada's right to collect taxes and duties was property right, for purposes of defendants' conviction under wirefraud statute over scheme to defraud governments of Canada and Province of Ontario of excise duties and taxrevenues applicable to importation and sale of liquor, even though Canada's interest would not have vested untildefendants crossed the border; success of scheme was irrelevant, Canada would have been deprived of revenuesif defendants succeeded in completing border crossings without paying duties. U.S. v. Pasquantino, C.A.4 (Md.)2002, 305 F.3d 291, rehearing en banc granted , on rehearing 336 F.3d 321, certiorari granted 124 S.Ct. 1875,541 U.S. 972, 158 L.Ed.2d 466, affirmed 125 S.Ct. 1766, 544 U.S. 349, 161 L.Ed.2d 619, rehearing denied , re-hearing denied 125 S.Ct. 2931, 545 U.S. 1135, 162 L.Ed.2d 880, grant of post-conviction relief affirmed 230Fed.Appx. 255, 2007 WL 1149917. Telecommunications 1014(7)

Internal Revenue Code is not exclusive basis for tax fraud prosecutions; such fraud may also be pursued undergeneral “wire fraud” statute. U.S. v. Dale, C.A.D.C.1993, 991 F.2d 819, 301 U.S.App.D.C. 110, rehearingdenied, certiorari denied 114 S.Ct. 286, 510 U.S. 906, 126 L.Ed.2d 236, certiorari denied 114 S.Ct. 650, 510U.S. 1030, 126 L.Ed.2d 607. Internal Revenue 5263.20; Telecommunications 1014(1)

Defendants were not guilty of wire fraud violation for conspiring and scheming to launder money by introducinglarge sums of money into domestic banking system without triggering financial institution's reporting require-ment and using interstate wire communications to achieve that goal, where there was no allegation that purposeof scheme was to avoid payment of federal income taxes. U.S. v. Herron, C.A.5 (Tex.) 1987, 825 F.2d 50. Tele-communications 1014(8)

Federal wire fraud statute is not inapplicable to scheme to defraud the United States of tax revenues by evadingthe payment of income taxes on theory that this is an impermissible attempt to pyramid sentences for fraud con-viction bottomed on essentially the same allegations as those required to sustain tax evasion and perjury counts.U.S. v. Dale, D.D.C.1991, 782 F.Supp. 615. Criminal Law 29(5.5)

For purposes of government's action in rem for forfeiture of alleged contraband cigarettes, alleging that defend-ant's cigarettes were subject to forfeiture because they represented property that was proceeds of claimants' wirefraud scheme designed to deprive states of cigarette excise tax revenue, state's right to collect excise taxes dueon cigarettes was a property right within meaning of wire fraud statute. U.S. v. 1,920,000 Cigarettes,W.D.N.Y.2003, 2003 WL 21730528, Unreported. Forfeitures 4; Telecommunications 1014(7)

65a. ---- Undisclosed conflict of interest, scheme or artifice to defraud, elements of offense

18 U.S.C.A. § 1343


Allegations that federal congressmen concealed their receipt of gifts from lobbyist by filling out materially falsefinancial disclosure forms in violation of congressional rules, and that lobbyist was aware congressmen were inviolation of disclosure rules and concealed violations when filling out his own client expense reports, were suffi-cient to charge lobbyist with honest services fraud by means of undisclosed conflict of interest; despite conten-tion that breach of congressional rules were not offenses under state law and could not support honest servicescharges, federal officials' duties to disclose material conflicts of interest were not defined by state law. U.S. v.Ring, D.D.C.2009, 628 F.Supp.2d 195. Telecommunications 1014(10)

66. Success of scheme, elements of offense

Crime of wire fraud does not require that defendant's object be attained; it requires only that defendant devisescheme to defraud and then transmit wire communication for purpose of executing scheme. U.S. v. Carrington,C.A.1 (Mass.) 1996, 96 F.3d 1, certiorari denied 117 S.Ct. 1328, 520 U.S. 1150, 137 L.Ed.2d 489. Telecommu-nications 1014(5)

To obtain conviction for wire fraud or mail fraud, prosecution must establish scheme to defraud, money or prop-erty as object of scheme, and use of mails, or wires, to further scheme; government need not prove that schemesuccessfully defrauded intended victim, but rather must show only that some actual harm or injury was contem-plated by schemer, including depriving victim of information that victim would consider valuable deciding howto use his or her assets. U.S. v. Dinome, C.A.2 (N.Y.) 1996, 86 F.3d 277. Postal Service 35(2); Telecom-munications 1014(2)

Actual success is not an element of wire fraud. U.S. v. Ames Sintering Co., C.A.6 (Mich.) 1990, 927 F.2d 232.Telecommunications 1014(5)

Union pension officials could be convicted of wire fraud for their role in attempting to manipulate sale of pen-sion fund property, though indictment and jury instructions contained language supporting invalid intangiblerights theory, where jury, in order to convict, was nonetheless required by indictment and instructions to findthat defendants, though unsuccessful, nevertheless schemed to deprive pension fund of higher price for its prop-erty. Lombardo v. U.S., C.A.7 (Ill.) 1989, 865 F.2d 155, certiorari denied 109 S.Ct. 3186, 491 U.S. 905, 105L.Ed.2d 695, rehearing denied 110 S.Ct. 12, 492 U.S. 932, 106 L.Ed.2d 627. Telecommunications 1017;Telecommunications 1021

Scheme to defraud need not be successful to create violation of this section. U.S. v. Johnson, C.A.5 (Tex.) 1983,700 F.2d 163, on rehearing 718 F.2d 1317. Telecommunications 1014(5)

A scheme to defraud does not have to be successfully completed for there to be a violation of this section. U. S.v. Tackett, C.A.8 (Mo.) 1981, 646 F.2d 1240. See, also, Weisser v. Ciccone, C.A.Mo.1976, 532 F.2d 101. Tele-communications 1014(5)

18 U.S.C.A. § 1343


Scheme to defraud and its activation do not have to be successful in order to qualify as crime under this sectionand section 1341 of this title. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205, certiorari denied 90 S.Ct. 1245,397 U.S. 1013, 25 L.Ed.2d 427. Postal Service 35(7); Telecommunications 1014(5)

Crime of fraud by wire was complete if proof showed that defendant devised, as part of a scheme to defraud aretired school teacher, that she should through his misrepresentations be induced to have money sent across statelines by wire for his use, and whether the teacher was so induced was immaterial. Lindsey v. U. S., C.A.9 (Nev.)1964, 332 F.2d 688. Telecommunications 1014(2)

To constitute violation of this section, it is not required that victim be actually deceived, but only that there be ascheme to defraud and that telephone be used as a step in execution of scheme, and it is not essential thatscheme be successful. Huff v. U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certiorari denied 83 S.Ct. 289, 371 U.S.922, 9 L.Ed.2d 230. Telecommunications 1014(5)

67. Defenses, elements of offense--Generally

Despite defendants' judicially directed acquittals on wire fraud charges, collateral estoppel, as embodied in theFifth Amendment's guarantee against double jeopardy, did not bar their retrial on charges of conspiracy to com-mit wire fraud; reason for defendants' acquittal on substantive charges was government's failure to introduce anyevidence that value of defendants' use of corporate aircraft, measured correctly by marginal cost imposed on cor-poration, exceeded $50,000.00, and thus that certain Securities and Exchange Commission (SEC) reports werefalse, and this same issue did not have to be relitigated in order to convict defendants of the conspiracy charges,as conspiracy count described a much wider ranging fraudulent scheme than defendants' use of corporate air-craft, including their alleged abuse of company's relocation reimbursement program, alleged plot to remove cor-porate directors, and alleged push for split-merge transaction to enrich themselves rather than company. U.S. v.Wittig, C.A.10 (Kan.) 2009, 575 F.3d 1085. Double Jeopardy 151(3.1)

In prosecution for mail fraud and wire fraud involving fraudulent scheme to obtain real estate loans throughfalse representations, it was not a valid defense that defendant intended to repay bank that was victim of fraudfour months after fraudulent transaction with proceeds from a later transaction, since the fraud against the bankwas complete at time of fraudulent transaction. U.S. v. Radziszewski, C.A.7 (Ill.) 2007, 474 F.3d 480, amendedon denial of rehearing. Postal Service 35(9); Telecommunications 1014(7)

In prosecution for conspiring to violate the wire and travel fraud statutes, and substantive violations thereof,arising from corporation's alleged bribery of city officials to secure a sludge-hauling contract, defendant corpor-ate officer's extortion defense, which alleged that he lacked intent to bribe and made payments only to satisfyextortionate demands, was unavailable if that defendant did not believe he had a legal entitlement to the officialaction for which the payments were made. U. S. v. McPartlin, C.A.7 (Ill.) 1979, 595 F.2d 1321, certiorari denied100 S.Ct. 65, 444 U.S. 833, 62 L.Ed.2d 43. Bribery 3

Acquittals on charges of wire fraud, in prosecution alleging that defendants had engaged in scheme to defraudcorporation in which they served as officers, did not collaterally estop subsequent prosecutions for tax evasion;

18 U.S.C.A. § 1343


even if acquittals established that jury had concluded that defendants had not engaged in scheme to defraud cor-poration, they did not establish that defendants had not received funds from corporation for their personal use,and tax evasion prosecution could proceed regardless of whether funds had been received with intent to defraudcorporation. U.S. v. Rigas, M.D.Pa.2008, 565 F.Supp.2d 620, affirmed in part , remanded in part 584 F.3d 594,rehearing en banc granted 592 F.3d 460, on rehearing en banc 605 F.3d 194. Judgment 751

Criminal defendants in federal wire fraud cases had every incentive to litigate their cases fully and vigorously,and, thus, collateral estoppel applied as to issues actually litigated in those prosecutions, for purposes of laterfederal civil fraud litigation. Instituto Nacional De Comercializacion Agricola (Indeca) v. Continental IllinoisNat. Bank and Trust Co. of Chicago, N.D.Ill.1983, 576 F.Supp. 991. Judgment 751

68. ---- Double jeopardy, defenses, elements of offense

Despite defendants' judicially directed acquittals on wire fraud charges, collateral estoppel, as embodied in theFifth Amendment's guarantee against double jeopardy, did not bar their retrial on charges of conspiracy to com-mit money laundry; reason for defendants' acquittal on substantive charges was government's failure to intro-duce any evidence that value of defendants' use of corporate aircraft, measured correctly by marginal cost im-posed on corporation, exceeded $50,000.00, and thus that certain Securities and Exchange Commission (SEC)reports were false, and this same issue did not have to be relitigated in order to convict defendants of the con-spiracy charges, as conspiracy count described a much wider ranging fraudulent scheme than use of corporateaircraft, conspiracy could have involved any of the many other transactions mentioned in the indictment, and de-fendants' acquittal did not mean that all the money they obtained from their former company was in fact clean.U.S. v. Wittig, C.A.10 (Kan.) 2009, 575 F.3d 1085. Double Jeopardy 151(3.1)

Convictions for wire fraud and federal funds theft did not violate the Double Jeopardy Clause of the FifthAmendment because each offense required proof of an element not required by the other. U.S. v. Williams,C.A.11 (Ga.) 2008, 527 F.3d 1235. Double Jeopardy 143

Defendant's simultaneous indictments for wire fraud in one district court and for mail fraud in another districtcourt did not violate Double Jeopardy Clause, since offenses of wire fraud and mail fraud each required proof ofat least one distinct fact that the other did not, namely, the existence of a mailing or a wire transfer. U.S. v. Ghil-arducci, C.A.7 (Ill.) 2007, 480 F.3d 542, certiorari denied 128 S.Ct. 159, 552 U.S. 866, 169 L.Ed.2d 109, post-conviction relief denied 2010 WL 1609700, opinion after remand from court of appeals 2012 WL 1279929, cer-tiorari denied 128 S.Ct. 252, 552 U.S. 909, 169 L.Ed.2d 185. Double Jeopardy 139.1

Prosecution for using telephone in aid of racketeering scheme did not violate defendant's right under U.S.C.A.Const. Amend. 5 not to be subject to double jeopardy, where earlier conviction for defrauding phone company,although involving common facts, the use of telephone, involved proof of additional facts. U. S. v. Garner,C.A.9 (Nev.) 1980, 632 F.2d 758, certiorari denied 101 S.Ct. 1373, 450 U.S. 923, 67 L.Ed.2d 351. Double Jeop-ardy 151(4)

As the evidence at defendant's 1965 trial, at which he was convicted of the interstate transportation of govern-

18 U.S.C.A. § 1343


ment bearer bonds obtained by fraud, wire fraud and conspiracy, was materially different from the evidence at1959 trial, at which he was convicted of concealing government bearer bonds from trustee in bankruptcy, inter-state transportation of those bonds and mail fraud, and as the same evidence was not required to sustain both ofthe interstate transportation charges, a plea of double jeopardy was not available to defendant at his second trial,notwithstanding his claim that the bonds were the same in both cases except for denominational changes. U. S.v. Engle, C.A.6 (Ohio) 1972, 458 F.2d 1021, certiorari denied 93 S.Ct. 154, 409 U.S. 863, 34 L.Ed.2d 111.Double Jeopardy 143

Fact that two previous grand juries may have refused to indict defendants on mail and wire fraud charges did notbar later indictment by third grand jury on same charges. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205, cer-tiorari denied 90 S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Indictment And Information 16

Government's use of evidence related to 32 properties not mentioned in defendants' indictment for wire fraud,mail fraud, and witness tampering, as substantive evidence of a scheme to arrange fraudulent home mortgages,would not place defendants in double jeopardy if government used the same additional properties to charge de-fendants with additional specific uses of mail and wires in later prosecution; in any later prosecution, at least oneelement, the specific use of the mails and wire, would be distinct from current offense. U.S. v. Weiss,D.Colo.2007, 469 F.Supp.2d 941. Double Jeopardy 139.1

Double jeopardy was not violated by imposition of consecutive sentences on four counts of mail fraud and wirefraud; separate mailings and wire communications in furtherance of same scheme to defraud constituted separateoffenses under applicable statutes. U.S. v. Hodge, N.D.Ohio 1987, 674 F.Supp. 585. Double Jeopardy139.1

69. ---- Entrapment, defenses, elements of offense

Defendant charged with wire fraud and money laundering was predisposed to trafficking in food stamps, andthus was not entitled to entrapment instruction, despite his assertion that confidential informant (CI) persisted atlength and said that she really needed money, where he admitted that he had been engaging in food stamp fraudfor at least one year before his arrest, many food stamp transactions occurred before CI approached defendant,and defendant was not unwilling participant. U.S. v. Haddad, C.A.7 (Ill.) 2006, 462 F.3d 783. Criminal Law

37(6.1)

Evidence, including proof that defendant offered to sell government agents fraudulent securities, cashierschecks, certificates of deposit and letters of credit, and thereafter made most of the arrangements to procure thefraudulent documents by insuring their printing and clearance through a bank in the British West Indies, suppor-ted finding that defendant not only had a predisposition to engage in the illegal activity but played a significantrole in the enterprise as well, thereby supporting conclusion that conduct of government agents was not so out-rageous as to deprive defendant of due process of law and to therefore preclude his conviction of fraudulentlyobtaining money from bank and financial institutions by use of wire, radio, or television communications, andconspiring to do so. U.S. v. Puett, C.A.11 (Ga.) 1984, 735 F.2d 1331. Criminal Law 569

18 U.S.C.A. § 1343


Since actions of telephone company security supervisor and informant in having defendant give demonstrationof “blue boxes” in the district in which he was prosecuted for fraud, were in response to defendant's stated desireto sell the “blue boxes,” the creativity activity necessary for entrapment was not present. U. S. v. Patterson,C.A.5 (Tex.) 1976, 528 F.2d 1037, rehearing denied 534 F.2d 1113, certiorari denied 97 S.Ct. 361, 429 U.S.942, 50 L.Ed.2d 313. Criminal Law 37(6.1)

70. ---- Failure of scheme, defenses, elements of offense

That alleged scheme to defraud by sending cables between New York and Rio de Janeiro failed of its purposewas not defense. U. S. v. Whiting, C.A.2 (N.Y.) 1962, 308 F.2d 537, certiorari denied 83 S.Ct. 722, 372 U.S.909, 9 L.Ed.2d 718, certiorari denied 83 S.Ct. 734, 372 U.S. 919, 9 L.Ed.2d 718. Conspiracy 24.10

71. ---- Good faith, defenses, elements of offense

Good faith is a defense to charges of wire fraud. U. S. v. Westbo, C.A.10 (Colo.) 1978, 576 F.2d 285. PostalService 35(5); Telecommunications 1014(3)

It is no defense to prosecution for use of mail and wire communications in furtherance of fraudulent scheme thatdefendant first made representation in good faith if later at any time within period covered by indictment defend-ant realized representations were false and deliberately continued to make them. U. S. v. Lamont, C.A.2 (N.Y.)1977, 565 F.2d 212, certiorari denied 98 S.Ct. 1467, 435 U.S. 914, 55 L.Ed.2d 505. Postal Service 35(5);Telecommunications 1014(3)

Even if defendant had an honest belief that his corporate enterprise would eventually succeed, a question waspresented as to his guilt of using the mails, radio and television in interstate commerce with intent to defraud,where funds of investors were obtained by willful misrepresentation as to financial strength of the corporation.U. S. v. Painter, C.A.4 (W.Va.) 1963, 314 F.2d 939, certiorari denied 83 S.Ct. 1873, 374 U.S. 831, 10 L.Ed.2d1054. Postal Service 35(5); Telecommunications 1014(3)

Under the wire fraud statute, even false representations or statements or omissions of material facts do notamount to a fraud unless done with fraudulent intent; however misleading or deceptive a plan may be, it is notfraudulent if it was devised or carried out in good faith. U.S. v. Dupre, S.D.N.Y.2004, 339 F.Supp.2d 534, af-firmed 462 F.3d 131, certiorari denied 127 S.Ct. 1026, 549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127S.Ct. 1030, 549 U.S. 1151, 166 L.Ed.2d 773, habeas corpus denied 2012 WL 2953970. Telecommunications

1014(3)

If defendants' acts were done inadvertently, mistakenly or in good faith without intention to defraud then de-fendants must be acquitted of charges of mail fraud, wire fraud, fraudulent possession and sale of altered coinsand conspiracy. U. S. v. Sheiner, S.D.N.Y.1967, 273 F.Supp. 977, affirmed 410 F.2d 337, certiorari denied 90S.Ct. 127, 396 U.S. 859, 24 L.Ed.2d 110, certiorari denied 90 S.Ct. 68, 396 U.S. 825, 24 L.Ed.2d 76. Conspiracy

24.5; Counterfeiting 10; Postal Service 35(5); Telecommunications 1014(3)

18 U.S.C.A. § 1343


72. ---- Limitations, defenses, elements of offense

Prosecution for use of mails and interstate wire communications to further a scheme to defraud was not barredby five-year statute of limitations where the scheme, which was devised more than five years prior to date in-dictment was returned, continued to a date within the limitation period. U. S. v. Andreas, C.A.8 (Mo.) 1972, 458F.2d 491, certiorari denied 93 S.Ct. 54, 409 U.S. 848, 34 L.Ed.2d 89. Criminal Law 150

Prosecution of mail and wire fraud charges under indictment which was returned on Dec. 6, 1966 and whichspecified Aug. 21, 1961, the date when defendants opened checking account to be used in check kiting scheme,as beginning date of scheme was not barred by five-year statute of limitations where each alleged offense waswire or letter sent between May 2, 1962 and Oct. 14, 1963. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205,certiorari denied 90 S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Criminal Law 149

Facsimile transmission sent by defendant to contractor responsible for the renovations to his apartment, whichwere allegedly undertaken in return for defendant's use of his status as Commissioner of Corrections, and sub-sequently as New York City Police Commissioner, to vouch for a company in order to influence regulators andother public officials to issue permits and licenses to company, was not a “lulling letter,” in furtherance of un-derlying honest services fraud scheme, and thus, it did not constitute an overt act within wire fraud limitationsperiod; fax was not sent to victim in order to lull victim into thinking that no fraud occurred, but was sent to awitness, purportedly to plant a false statement with that witness, and at the time the fax was sent, defendant wasalready under investigation. U.S. v. Kerik, S.D.N.Y.2009, 615 F.Supp.2d 256. Criminal Law 150

Even if transactions involving loans and false financial statements occurred more than five years prior to returnof indictment for use of interstate wire and radio communications in fraudulent scheme, inasmuch as the inter-state telephone call alleged was made within five years of return of indictment, prosecution was not barred bystatute of limitations. U. S. v. Garland, N.D.Ill.1971, 337 F.Supp. 1. Criminal Law 149

73. ---- Restitution, defenses, elements of offense

Restitution, in federal wire fraud prosecution arising from contractors' scheme in which bridge loans released forpurpose of financing house construction instead were used to pay for previous unfinished projects, properlycomprised bank's losses as well as customers'. U.S. v. Castellano, C.A.7 (Ill.) 2003, 349 F.3d 483. SentencingAnd Punishment 2146

Defendant-agricultural cooperative could be convicted of wire fraud based on its employee's conduct in devisingscheme to obtain $5,000 temporarily from parent corporation of its public relations firm by false pretenses so asto make illegal campaign contribution; although $5,000 was promptly reimbursed, misrepresentation caused par-ent to authorize expenditure when it otherwise would not have and exposed parent to costly legal entanglements.U.S. v. Sun-Diamond Growers of California, C.A.D.C.1998, 138 F.3d 961, 329 U.S.App.D.C. 149, rehearingdenied , certiorari granted in part 119 S.Ct. 402, 525 U.S. 961, 142 L.Ed.2d 326, certiorari denied 119 S.Ct. 409,525 U.S. 964, 142 L.Ed.2d 332, affirmed 119 S.Ct. 1402, 526 U.S. 398, 143 L.Ed.2d 576. Telecommunications

1014(9)

18 U.S.C.A. § 1343


Fact that defendant who was charged with mail and wire fraud eventually reimbursed victim for her loss did noterase fraud. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205, certiorari denied 90 S.Ct. 1245, 397 U.S. 1013,25 L.Ed.2d 427. Criminal Law 41

Where some immediate loss to the victim is contemplated by a wire fraud defendant, the fact that defendant be-lieves (rightly or wrongly) that he will ultimately be able to work things out so that the victim suffers no loss isno excuse for the real and immediate loss contemplated to result from defendant's fraudulent conduct. U.S. v.Dupre, S.D.N.Y.2004, 339 F.Supp.2d 534, affirmed 462 F.3d 131, certiorari denied 127 S.Ct. 1026, 549 U.S.1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S. 1151, 166 L.Ed.2d 773, habeas corpus denied2012 WL 2953970. Telecommunications 1014(7)

74. ---- Speedy trial, defenses, elements of offense

Fact that some five years elapsed between dates of offenses and date of indictment charging fraud by wire, didnot deprive defendant of fair and speedy trial where prosecution resulted from extended investigation into com-plicated affairs of defendant and his corporations and there was no suggestion of any purposeful or otherwiseimproper delay in conduct of investigation and there was no showing of prejudice caused by the delay. U. S. v.Orsinger, C.A.D.C.1970, 428 F.2d 1105, 138 U.S.App.D.C. 403, certiorari denied 91 S.Ct. 62, 400 U.S. 831, 27L.Ed.2d 61. Indictment And Information 7

Defendant, who was apprehended on or about Dec. 28, 1955, pursuant to a warrant and who was released on bailuntil indictment was found in Oct. 1959, during which time defendant made no effort to have complaint dis-missed, was not entitled to dismissal of indictment alleging scheme to defraud by use of telephone and telegraphcommunications, on ground defendant had been denied speedy trial. U. S. v. Fassoulis, C.A.2 (N.Y.) 1961, 293F.2d 243, certiorari denied 82 S.Ct. 240, 368 U.S. 919, 7 L.Ed.2d 134. Criminal Law 576(6)

Defendant, a Lebanese citizen and resident of Kuwait, rather than government, could be held responsible forpre-trial delay of six years in prosecution for fraud and wire fraud, for purposes of defendant's Sixth Amendmentspeedy trial claim; defendant chose to remain beyond government's reach by remaining in Kuwait, despite gov-ernment's due diligence. U.S. v. Hijazi, C.D.Ill.2011, 845 F.Supp.2d 874. Criminal Law 577.11(2)

III. USE OF WIRE, RADIO OR TELEVISION

<Subdivision Index>

Generally 101Accountants, persons liable 120Causation 102-105

Causation - Generally 102Causation - Foreseeability 103Causation - Overt acts 104Causation - Personal wiring 105

18 U.S.C.A. § 1343


Conspiracy, persons liable 121Execution of scheme or device 106Faxes, means of transmission 112Foreseeability, causation 103Furtherance of scheme or device 107Intent or knowledge 109Interstate commerce 110Means of transmission 111-114a

Means of transmission - Generally 111Means of transmission - Faxes 112Means of transmission - Microwaves 113Means of transmission - Telephones 114Means of transmission - Wire-transmission 114a

Microwaves, means of transmission 113Number of transmissions 115Overt acts, causation 104Personal wiring, causation 105Persons liable 119-121

Persons liable - Generally 119Persons liable - Accountants 120Persons liable - Conspiracy 121

Purpose 108Recipients of transmissions 118Telephones, means of transmission 114Time of transmission 116Transmittal of communication 117Wire-transmission, means of transmission 114a

101. Generally, use of wire, radio or television

Without regard to whether Nevada location of corporation's bank account was a matter of the choosing of the de-fendant, who had promoted the corporation and was charged with wire fraud, that location made the wires whichtransferred funds back to his bank useful to him for the purposes of obtaining funds from the corporation andthat usefulness was sufficient to permit a conviction for wire fraud. U. S. v. Cusino, C.A.9 (Cal.) 1982, 694 F.2d185, certiorari denied 103 S.Ct. 2096, 461 U.S. 932, 77 L.Ed.2d 305. Telecommunications 1014(6)

Gist of offense of fraud by wire, radio or television is not the scheme to defraud but the unlawful use of inter-state wire communications. U. S. v. Garland, N.D.Ill.1971, 337 F.Supp. 1. Telecommunications 1014(2);Telecommunications 1168

102. Causation, use of wire, radio or television--Generally

In prosecution for causing interstate telephone calls to be made pursuant to scheme of securities fraud, evidence,including defendant's attachment of business card of out-of-state bank allegedly holding assets underlying docu-ment in issue to such document, was sufficient to enable jury to reasonably conclude that defendant's actions

18 U.S.C.A. § 1343


“caused” telephone calls to be made, thus supporting conviction. U.S. v. Johnson, C.A.5 (Tex.) 1983, 700 F.2d163, on rehearing 718 F.2d 1317. Telecommunications 1018(4)

In prosecution for transmitting or causing to be transmitted any writings, signs, signals, pictures, or sounds forpurpose of executing scheme to defraud, evidence was sufficient to support finding that defendants, as prin-cipals, caused sending of telex to bank from which defendants sought loan. U. S. v. Calandrella, C.A.6 (Ky.)1979, 605 F.2d 236, certiorari denied 100 S.Ct. 522, 444 U.S. 991, 62 L.Ed.2d 420. Fraud 69(5)

Victim's testimony that making interstate telephone call was his idea but that defendant knew about calls and en-couraged him to arrange deal was sufficient to prove that defendant caused calls to be made and was sufficientto establish offense of wire fraud. U. S. v. Bohr, C.A.8 (Mo.) 1978, 581 F.2d 1294, certiorari denied 99 S.Ct.361, 439 U.S. 958, 58 L.Ed.2d 351. Telecommunications 1018(4)

Evidence in prosecution for wire fraud arising out of alleged scheme to defraud insurers by faked automobile ac-cidents, including evidence as to whether defendant had caused telephone to be used, sustained conviction.Hawkins v. U. S., C.A.5 (Fla.) 1962, 305 F.2d 658, certiorari denied 83 S.Ct. 737, 372 U.S. 924, 9 L.Ed.2d 729,application denied 83 S.Ct. 884, 372 U.S. 933, 9 L.Ed.2d 765, rehearing denied 83 S.Ct. 939, 372 U.S. 950, 9L.Ed.2d 976. Telecommunications 1018(4)

Conviction for violation of this section prohibiting fraud by wire, radio, or television would be sustained even ifdefendant was not shown to have sent all telegrams in evidence, in view of fact that he was positively identifiedas sender of one of them, that evidence as to such telegram, together with the other circumstances, was sufficientto connect him with the other telegrams, that sentence imposed on the various counts of the indictment ran con-currently, and that punishment imposed was supported by conviction under count relating to telegram which de-fendant was shown, by direct evidence, to have sent. Wiltsey v. U.S., C.A.4 (Va.) 1955, 222 F.2d 600. CriminalLaw 1177.3(1)

103. ---- Foreseeability, causation, use of wire, radio or television

Defendant could reasonably have foreseen that telephone would be used to make hotel reservations for out-of-state conference for lobbyist from whom defendant received gratuities, and therefore “caused” wiring for pur-poses of wire fraud conviction based on scheme to defraud public of right to defendant's honest services as statelegislator. U.S. v. Woodward, C.A.1 (Mass.) 1998, 149 F.3d 46, certiorari denied 119 S.Ct. 1026, 525 U.S.1138, 143 L.Ed.2d 37. Telecommunications 1014(4)

Evidence supported convictions for wire fraud based on findings that defendant was consulted before coconspir-ator sent telexes to lender, that communications were integral to scheme to defraud lender through fictitiousequipment leases offered as collateral for line of credit, and that communications were reasonably foreseeablepart of scheme in which defendant participated, even though defendant did not personally send or instructcoconspirator to send telexes. U.S. v. Rogers, C.A.2 (N.Y.) 1993, 9 F.3d 1025, certiorari denied 115 S.Ct. 95,513 U.S. 827, 130 L.Ed.2d 45. Telecommunications 1018(4)

18 U.S.C.A. § 1343


Defendant's lack of direct involvement in codefendant's decision to transfer invested money by wire did notforeclose finding that defendant “caused” transfer, under wire fraud statute, in view of evidence indicating thatdefendant knew of past wire transfers and thus could foresee charged wire transfer. U.S. v. Gill, C.A.7 (Wis.)1990, 909 F.2d 274. Telecommunications 1014(11)

Telegrams sent from a Missouri city to another Missouri city could form basis for wire fraud convictions not-withstanding Government's failure to prove that defendants knew or reasonably could have foreseen that thetelegrams were sent interstate as result of routing through Virginia. U.S. v. Bryant, C.A.8 (Mo.) 1985, 766 F.2d370, certiorari denied 106 S.Ct. 790, 474 U.S. 1054, 88 L.Ed.2d 768. Telecommunications 1014(4)

Merchant caused interstate communication for purposes of criminal liability under this section when he tele-phoned local authorization center in connection with use of counterfeit credit cards to charge spurious purchaseswith resultant credits to his account, where interstate communications by local authorization center to credit cardfacilities in Virginia and Missouri were reasonably foreseeable in light of common knowledge that cards are is-sued by banks throughout the country and that computers are used in transactions and obtained revenue, thustending to avoid suspicion. U. S. v. Muni, C.A.2 (N.Y.) 1981, 668 F.2d 87. Telecommunications 1014(4)

Jury could properly conclude that mailings and wires between local insurance agents and home offices whichresulted in issuance of “key man” insurance policies on defendant's partner, whom defendant intended to murderor have murdered in order to collect the proceeds of the policies, were foreseeable as a result of applications forthe policies filed by defendant's father as part of defendant's plan. U. S. v. Calvert, C.A.8 (Mo.) 1975, 523 F.2d895, certiorari denied 96 S.Ct. 1106, 424 U.S. 911, 47 L.Ed.2d 314. Postal Service 50; Telecommunica-tions 1014(4)

Ample factual basis existed to conclude that defendant convicted of conspiracy was a knowing participant in al-leged scheme to defraud and that she should have reasonably foreseen the use of the mails and other interstatefacilities. U. S. v. Marino, C.A.2 (N.Y.) 1970, 421 F.2d 640. Conspiracy 47(5)

Indictment's allegations that congress person's chief of staff sent interstate email to lobbyist, and a bank trans-ferred $5000 to the account of another congressman's wife, were sufficient to charge lobbyist with honest ser-vices wire fraud; even if lobbyist did not initiate wire communications, lobbyist caused the email from the chiefof staff when he sent a prior email and a response by email was reasonably foreseeable, and it was reasonablyforeseeable that bank would wire transfer funds from another bank for lobbyist's payment to the wife. U.S. v.Ring, D.D.C.2009, 628 F.Supp.2d 195. Telecommunications 1014(4)

For mail or wire fraud claim, defendant need not actually use mails or wires, so long as defendant causes suchuse; causation, for this purpose, merely requires allegation to support claim that use of mails or wires was reas-onably foreseeable, or likely to follow in ordinary course of business. Burke v. Dowling, E.D.N.Y.1995, 944F.Supp. 1036. Postal Service 35(6); Telecommunications 1014(4)

To violate mail and wire fraud statutes, defendants need not have been actual individuals who used mails and

18 U.S.C.A. § 1343


wires, nor need they have known of specific communications; it is sufficient that use of mails and wires by oth-ers occurred in ordinary course of business related to fraudulent scheme, or was foreseeable as part of further-ance of fraudulent scheme. Philadelphia Reserve Supply Co. v. Nowalk & Associates, Inc., E.D.Pa.1994, 864F.Supp. 1456. Postal Service 35(5); Postal Service 35(6); Telecommunications 1014(4)

104. ---- Overt acts, causation, use of wire, radio or television

Evidence that defendant's accountant faxed unsigned letters as courtesy for defendant, that company cover sheet,prepared by accounting firm, stated that letter was from defendant, and that contents of letter revealed that it wasresponse to earlier letter of inquiry to defendant concerning defendant's alleged unauthorized withdrawals frompartnership reserve accounts, was sufficient to establish defendant caused letter to be faxed as required to sup-port wire element of wire fraud. U.S. v. Lopez, C.A.1 (Puerto Rico) 1995, 71 F.3d 954, certiorari denied 116S.Ct. 2529, 518 U.S. 1008, 135 L.Ed.2d 1053, certiorari dismissed 117 S.Ct. 38, 518 U.S. 1057, 135 L.Ed.2d1129. Telecommunications 1018(4)

In prosecution for using interstate wire facilities in carrying out scheme to defraud certain hotel casinos, evid-ence of overt acts, which went far beyond mere “association,” was sufficient for jury to find that one defendant,along with two other defendants and government witness, had caused placing of telephone calls in carrying outscheme to defraud casinos and that he was involved in conspiracy to carry out that scheme even though govern-ment witness did not know such defendant or that he was involved in scheme. U. S. v. Scallion, C.A.5 (La.)1976, 533 F.2d 903, certiorari denied 97 S.Ct. 824, 429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97 S.Ct.1342, 430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548 F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S. 943,56 L.Ed.2d 784. Fraud 69(5)

105. ---- Personal wiring, causation, use of wire, radio or television

In prosecution for causing interstate telephone calls to be made pursuant to a scheme of securities fraud, it wasnot necessary to find that defendant placed calls himself in order to find that he “caused them to be placed.” U.S.v. Johnson, C.A.5 (Tex.) 1983, 700 F.2d 163, on rehearing 718 F.2d 1317. Telecommunications 1014(4)

Where interstate communication is made either by defendant or by some other person for whose acts defendantis liable either as a coconspirator or as an aider or abettor, issue of responsibility for causing the communication,for purposes of criminal liability under this section, does not arise. U. S. v. Muni, C.A.2 (N.Y.) 1981, 668 F.2d87. Postal Service 35(20)

In prosecution for mail and wire fraud, it made no difference that defendant did not personally mail or telephoneany communications, in view of his direct and vicarious participation in devising scheme to defraud in whichuse of mails and interstate telephoning would foreseeably follow in ordinary course of business. U. S. v. Ben-muhar, C.A.1 (Puerto Rico) 1981, 658 F.2d 14, certiorari denied 102 S.Ct. 2927, 457 U.S. 1117, 73 L.Ed.2d1328, rehearing denied 103 S.Ct. 16, 458 U.S. 1132, 73 L.Ed.2d 1402. Postal Service 35(2); Telecommu-nications 1014(4)

18 U.S.C.A. § 1343


Section 1341 of this title reaches schemes in which defendant does not place any matter in the mail; it is suffi-cient to show that he caused the mailing; scope of this section is equally broad. U. S. v. Calvert, C.A.8 (Mo.)1975, 523 F.2d 895, certiorari denied 96 S.Ct. 1106, 424 U.S. 911, 47 L.Ed.2d 314. Postal Service 35(6);Telecommunications 1014(4)

To be guilty of violating this section prohibiting use of interstate wire to execute fraudulent scheme, one neednot be proven to have actually participated in or initiated an interstate communication. U. S. v. Snyder, C.A.5(Ala.) 1974, 505 F.2d 595, certiorari denied 95 S.Ct. 1433, 420 U.S. 993, 43 L.Ed.2d 676. Telecommunications

1014(4)

To sustain prosecution for devising fraudulent scheme and executing it by transmitting wire communications ininterstate and foreign commerce it was not necessary to prove that particular defendant actually sent messagesover wires, and it was sufficient if messages were foreseeable result of acts of defendants. U. S. v. Conte, C.A.6(Ohio) 1965, 349 F.2d 304, certiorari denied 86 S.Ct. 313, 382 U.S. 926, 15 L.Ed.2d 339. Telecommunications

1014(4)

To convict for mail fraud, wire fraud and interstate transportation of stolen securities in connection with schemefor purchasing bank with its own assets, government was required to show that scheme existed and that defend-ant caused mailings, use of telegraph and telephone and interstate transportation of securities, but proof that de-fendant directly participated therein was not required. U. S. v. Houlihan, C.A.2 (N.Y.) 1964, 332 F.2d 8, certior-ari denied 85 S.Ct. 115, 379 U.S. 859, 13 L.Ed.2d 61, certiorari denied 85 S.Ct. 56, 379 U.S. 828, 13 L.Ed.2d 37. Postal Service 35(20); Receiving Stolen Goods 6; Telecommunications 1014(11)

Fact that the defendant had not initiated telephone call which was basis of charge that he had committed fraudby wire in making representations to lender's agent as to borrower's assets would not preclude violation of thissection making commission of fraud by wire a crime. U.S. v. Hancock, C.A.2 (Vt.) 1959, 268 F.2d 205, certior-ari denied 80 S.Ct. 89, 361 U.S. 837, 4 L.Ed.2d 77. Fraud 68

“Use” of wires, within meaning of wire fraud statute, does not require personal use of wires; rather, it requiresthat one act with knowledge, or that it be reasonably foreseeable, that use of wires will follow in ordinary courseof business. Venzor v. Gonzalez, N.D.Ill.1996, 936 F.Supp. 445. Telecommunications 1014(4)

106. Execution of scheme or device, use of wire, radio or television

In connection with scheme whereby defendant merchant used counterfeit credit cards to charge spurious pur-chases and then received credits in those amounts in his checking account, obtaining authorization codes for thetransactions was done for the purpose of executing the scheme, as required by this section, where securing au-thorization, even if not absolutely required, was done before merchant sent credit card charges to bank and re-ceived credit and was a normal and customary part of the way merchants processed charge transactions and ob-tained revenue, thus tending to avoid suspicion. U. S. v. Muni, C.A.2 (N.Y.) 1981, 668 F.2d 87. Telecommunic-ations 1014(6)

18 U.S.C.A. § 1343


Evidence sufficiently sustained convictions for mail and wire fraud in connection with securities scheme, sincemailings referred to in certain counts were made for purpose of executing the proven scheme and even thoughmailings alluded to another count contained only confirmations of sale of certain stocks. U. S. v. Pollack,C.A.D.C.1976, 534 F.2d 964, 175 U.S.App.D.C. 227, certiorari denied 97 S.Ct. 324, 429 U.S. 924, 50 L.Ed.2d292. Postal Service 49(11); Telecommunications 1018(4)

Interstate “executing” referred to in this section may be in course of scheme rather than in its completion. Weis-ser v. Ciccone, C.A.8 (Mo.) 1976, 532 F.2d 101. Telecommunications 1014(6)

Telephone call to coconspirator by defendants to inform him that they had obtained approval for stock swindler'sparticipation in securities fraud was made for the purpose of “executing” the stock swindle scheme within mean-ing of this section governing wire fraud where approval of coconspirator was, to the conspirators, at least, a re-quired part of the scheme. U. S. v. Aloi, C.A.2 (N.Y.) 1975, 511 F.2d 585, certiorari denied 96 S.Ct. 447, 423U.S. 1015, 46 L.Ed.2d 386. Telecommunications 1014(6)

Conviction under one count of prosecution for violation of this section and section 1343 of this title, would bevacated where telephone call from one defendant to another, the purpose of which was unclear from the record,failed to fulfill requirement of this section involved that the communication be “for the purpose of executingsuch scheme”. U. S. v. Marino, C.A.2 (N.Y.) 1970, 421 F.2d 640. Telecommunications 1014(6)

When interstate telephone call is relied upon to establish violation of wire fraud statute [18 U.S.C.A. § 1343], itis not necessary that use of telephone be central or essential to fraudulent scheme. U.S. v. Brennan,E.D.N.Y.1986, 629 F.Supp. 283, affirmed 798 F.2d 581, habeas corpus granted 685 F.Supp. 883, affirmed 867F.2d 111, certiorari denied 109 S.Ct. 1750, 490 U.S. 1022, 104 L.Ed.2d 187. Telecommunications 1014(6)

Action of telegraph company employee in wiring transfer of funds after employee had received money from cus-tomers for telegraph company money orders and had converted the funds to his own use did not constitute use oftelegraph wires for purpose of executing any scheme or artifice to defraud within meaning of this section prohib-iting the transmitting or causing to be transmitted by means of wires a communication for purpose of executingscheme or artifice. U. S. v. Holmes, W.D.Mo.1975, 390 F.Supp. 1077. Telecommunications 1014(6)

107. Furtherance of scheme or device, use of wire, radio or television

Defendant could be convicted of mail fraud based on his wire communications responding to government offi-cial's request for information and granting official extension of time to make her determination on defendant'squalifications; the transmissions in question were in furtherance of defendant's scheme. U.S. v. Merklinger,C.A.6 (Tenn.) 1994, 16 F.3d 670. Postal Service 35(8)

Fact that mailing and wiring of statements confirming execution of trades of futures contracts to customers wasrequired by Chicago Board of Trade (CBOT) rules did not preclude finding that mailing and wiring of state-ments were “in furtherance of” traders' and brokers' scheme to defraud customers, where confirmations were dir-ect result of fraudulent trading and had defendants not executed arranged transactions, those specific trades

18 U.S.C.A. § 1343


would not have occurred, obviating need for any confirmation. U.S. v. Ashman, C.A.7 (Ill.) 1992, 979 F.2d 469,rehearing denied, certiorari denied 114 S.Ct. 62, 510 U.S. 814, 126 L.Ed.2d 32. Postal Service 35(8); Tele-communications 1014(6)

Telexes sent between banks to verify and collect on certificate of deposit given bank customer by defendant assecurity for debt were not in furtherance of scheme to lull customer into believing that sham certificate of depos-it provided security for defendant's debt and thus could not provide basis for wire fraud prosecution; telexes didnot aid scheme, but resulted in its discovery. U.S. v. Pietri Giraldi, C.A.1 (Puerto Rico) 1988, 864 F.2d 222.Telecommunications 1014(6)

Where one defendant sent second defendant and coconspirators $100 by telegram to enable them to eat and sleepin city from which stowaway scheme was to originate, overnight stay was necessary to implementation of planand telegraphic transfer of money was intended to further scheme; thus, defendants' use of wire communicationfell within ambit of this section. U.S. v. Johnson, C.A.11 (Ga.) 1983, 713 F.2d 633, certiorari denied 104 S.Ct.1447, 465 U.S. 1081, 79 L.Ed.2d 766. Telecommunications 1014(6)

Evidence that interstate telephone call, although not an essential part of scheme to cheat at blackjack, was madefor the purpose of finding out if and when another would be coming to Reno to execute the scheme was suffi-cient to meet government's burden of proving a telephone call in furtherance of unlawful activity for purposes ofwire fraud prosecution. U. S. v. Garner, C.A.9 (Nev.) 1981, 663 F.2d 834, certiorari denied 102 S.Ct. 1750, 456U.S. 905, 72 L.Ed.2d 161. Telecommunications 1018(4)

In view of substantial evidence from which jury could find that the defendant expected seller of grain to tele-phone bank regarding status of defendant's bank account before accepting check and that the call to the bankwas made at behest of person who defendant allegedly procured to participate in fraudulent scheme involvingpurchasing of grain with checks which would be dishonored, telephone call to bank was in furtherance of thefraudulent scheme and was sufficient to sustain conviction for use of interstate telephone wires in connectionwith fraudulent scheme. U. S. v. Wise, C.A.8 (Minn.) 1977, 553 F.2d 1173. Telecommunications 1014(6)

In prosecution under this section, proscribing the interstate transmission by wire, radio, or television of any writ-ings, signs, signals, pictures, or sounds for the purpose of executing a fraudulent scheme or artifice, where al-leged telephone call was made to explain delay in arriving at place where alleged fraudulent deal was to beclosed, evidence was sufficient to show that telephone call was made in furtherance of scheme to defraud.Roberts v. U. S., C.A.6 (Ky.) 1955, 226 F.2d 464, certiorari denied 76 S.Ct. 307, 350 U.S. 935, 100 L.Ed. 817.Telecommunications 1014(4)

In wire fraud conspiracy prosecution arising from alleged scheme to “dope” racehorse and then profit by placingbets on horse, indictment's allegation that codefendant had used wires to place bets and to invite others to bet ondoped horse sufficiently stated “use of wires to further scheme” element of conspiracy charge against defendant,even though wires were not alleged to have been used to further doping portion of scheme; use alleged was ar-guably in furtherance of profiting part of scheme. U.S. v. Martin, S.D.N.Y.2006, 411 F.Supp.2d 370. Conspiracy

43(9)

18 U.S.C.A. § 1343


Wire transfer of Title IV student financial aid funds, as part of school's cash management system, did not sup-port wire fraud convictions of cosmetology and business school and its president; wire transfers were not shownto have furthered any alleged scheme involving financial aid funds. U.S. v. Jakeway, M.D.Fla.1992, 783 F.Supp.590. Telecommunications 1014(8)

108. Purpose, use of wire, radio or television

Telefacsimile sent by student loan center in New York to futures and options trader in Chicago so that tradercould receive his membership with Chicago Board of Trade (CBOT) and execute his trades was sufficiently forthe purpose of executing his trading scheme to support conviction for wire fraud. U.S. v. Catalfo, C.A.7 (Ill.)1995, 64 F.3d 1070, rehearing and suggestion for rehearing in banc denied, certiorari denied 116 S.Ct. 1683, 517U.S. 1192, 134 L.Ed.2d 784. Telecommunications 1014(6)

Communications in which defendants, who had scheme in which they would purport to buy a boat, would obtaininsurance, and would report the boat missing, were contacted with insurance quote and provided incorrect hullidentification number (HIN) were made for the purpose of executing the scheme, even though HIN was not re-quired for the insurance quote. U.S. v. Frey, C.A.3 (Pa.) 1994, 42 F.3d 795. Postal Service 35(8); Telecom-munications 1014(6)

This section does not require an interstate or foreign communication which actually furthers the scheme to de-fraud; this provision only requires that the communication must be made “for the purpose of executing suchscheme” and one can make a communication for the purpose of executing a scheme, even when that communic-ation does not actually further the scheme. U. S. v. Hammond, C.A.5 (Fla.) 1979, 598 F.2d 1008, on rehearing605 F.2d 862. Telecommunications 1014(6)

Wire fraud statute does not require that particular communication be fraudulent in and of itself; once a schemeto defraud is proven, “any writings” communicated by wire “for the purpose of executing such scheme” violatethe statute. U.S. v. Harris, S.D.N.Y.1992, 805 F.Supp. 166. Telecommunications 1014(6)

Where use of wires is an essential part of scheme to defraud, such use is for purpose of executing scheme, with-in this section prohibiting fraud by wire. U. S. v. Beckley, N.D.Ga.1965, 259 F.Supp. 567. Telecommunications

1014(6)

109. Intent or knowledge, use of wire, radio or television

In prosecution for wire fraud, district court did not abuse its discretion in giving “ostrich” jury instruction onconscious or deliberate avoidance; there was evidence that defendant knew that clients referred to her by mort-gage broker who was operating fraudulent mortgage scheme could not qualify for mortgages yet sought 100 per-cent financing on purchase price of homes, that defendant provided broker with incomplete or blank purchasecontracts and that finalized contracts she received from him listed as buyer someone other than buyer withwhom she had worked, and did not include her buyers' names, that same name was used as purported buyer forthree purchases in six-week period, and that participant in scheme told her that he was taking on persona of that

18 U.S.C.A. § 1343


purported buyer as needed. U.S. v. Ramirez, C.A.7 (Ill.) 2009, 574 F.3d 869. Criminal Law 772(5); Tele-communications 1014(3); Telecommunications 1021

Government need not prove that interstate nature of telephone calls was foreseeable for those calls to satisfy“interstate nexus” in wire fraud prosecution; government must prove that defendant acted with knowledge thattelephone calls would be made in furtherance of scheme to defraud or that it was reasonably foreseeable thattelephone calls would be made in furtherance of scheme to defraud and that calls actually made in furtherance ofscheme were of interstate nature. U.S. v. Lindemann, C.A.7 (Ill.) 1996, 85 F.3d 1232, rehearing and suggestionfor rehearing en banc denied, certiorari denied 117 S.Ct. 392, 519 U.S. 966, 136 L.Ed.2d 307. Telecommunica-tions 1014(4)

Seller of scrap metal, charged with wire fraud, did not knowingly cause use of wire in furthering scheme to de-fraud when buyer paid for metal by checks generated through buyer's main frame computer in foreign state;seller did not know that buyer used wire transmissions in ordinary course of business, nor should seller reason-ably have anticipated that buyer made wire transmissions when preparing checks. U.S. v. Bentz, C.A.3 (Pa.)1994, 21 F.3d 37. Telecommunications 1014(4)

Wire fraud defendant, who sent fraudulent and misleading documents to insurance company to induce companyto issue surety bonds on promissory notes and then used surety bonds to secure loans from financial institutions,did not merely intend to deceive the company, but also intended to deceive the institutions, despite defendant'scontention that he did not intend to deprive the institutions of property because company was ultimately re-sponsible for paying the loans. U.S. v. St. Gelais, C.A.5 (Tex.) 1992, 952 F.2d 90, certiorari denied 113 S.Ct.439, 506 U.S. 965, 121 L.Ed.2d 358. Telecommunications 1014(3)

In prosecution for wire fraud and inducing interstate travel pursuant to fraudulent scheme, evidence that code-fendants referred potential investors in pizza distributorships to defendant who falsely represented amount ofearnings from his distributorship supported finding that defendant was knowing and active participant in thescheme to defraud. U.S. v. Wiehoff, C.A.7 (Ill.) 1984, 748 F.2d 1158. Receiving Stolen Goods 8(3); Tele-communications 1018(4)

In order to convict for violation of this section jury is not required to find that defendant specifically contem-plated the use of the wires or that, without such use, the alleged scheme could not have succeeded. U. S. v. Cal-vert, C.A.8 (Mo.) 1975, 523 F.2d 895, certiorari denied 96 S.Ct. 1106, 424 U.S. 911, 47 L.Ed.2d 314. PostalService 35(6); Telecommunications 1014(4)

Defendant causes use of mails or wires in violation of federal law when, in furtherance of scheme to defraud, hedoes act with knowledge that use of mails or wires will follow in ordinary course of business or where such usecan reasonably be foreseen, even though not actually intended. Standard Chlorine of Delaware, Inc. v. Sinibaldi,D.Del.1992, 821 F.Supp. 232. Postal Service 35(6)

Defendant who ultimately published “911” text file stolen from telephone company's computer was not mere

18 U.S.C.A. § 1343


“innocent tipee” such that wire fraud charge against him had to allege fiduciary relationship between him andcompany; defendant participated in scheme with codefendant from outset and was completely aware of code-fendant's activities in unlawfully accessing company's computer and concealing theft of text file. U.S. v. Riggs,N.D.Ill.1990, 739 F.Supp. 414. Telecommunications 1014(11)

110. Interstate commerce, use of wire, radio or television

Evidence of interstate telephone calls between investor and insurance agents, was sufficient evidence of use ofthe wires to find agents liable for wire fraud, arising out of agents' sale of insurance products by means of fraud-ulent promotion that investors could avoid payment of income taxes. Hofstetter v. Fletcher, C.A.6 (Ohio) 1988,905 F.2d 897. Telecommunications 1014(12)

Interstate communication necessary to support conviction of supplier of counterfeit credit card slips for wirefraud existed where, even though merchant using the counterfeit slips made authorization calls intrastate, thisresulted in interstate authorization communication between local bank's clerk and national credit card facility.U.S. v. De Biasi, C.A.2 (N.Y.) 1983, 712 F.2d 785, certiorari denied 104 S.Ct. 397, 464 U.S. 962, 78 L.Ed.2d339. Telecommunications 1014(6)

Under this section prohibiting fraud by wire, radio or television, government was required to prove that defend-ant engaged in interstate telephone conversation for purpose of executing fraudulent scheme. U.S. v. Griffin,C.A.11 (Fla.) 1983, 699 F.2d 1102. Telecommunications 1014(2)

For purposes of prosecution for aiding and abetting wire fraud and interstate travel, government is not requiredto establish an interstate connection with respect to each defendant's activity; rather, the government need onlyshow that the scheme as a whole has substantial interstate connections. U. S. v. Garner, C.A.9 (Nev.) 1981, 663F.2d 834, certiorari denied 102 S.Ct. 1750, 456 U.S. 905, 72 L.Ed.2d 161. Commerce 82.6; Telecommu-nications 1014(2)

This section is not limited to interstate wire communications regulated by Federal Communications Commis-sion; therefore, fraudulent scheme of defendant and another airline ticket agent in which they made use of com-munications network linking airline computer in Kansas City to terminals in Pittsburgh in order to defraud air-line out of price of one-way tickets sold for cash fell within this section. U. S. v. Giovengo, C.A.3 (Pa.) 1980,637 F.2d 941, certiorari denied 101 S.Ct. 1743, 450 U.S. 1032, 68 L.Ed.2d 228. Telecommunications1014(8)

In prosecution of co-owner of real estate company for conspiracy and aiding and abetting wire fraud, mortgagecompany's approval of loan applications via telephone or telecopier from its Florida office to its branch office inGeorgia formed basis of interstate communication element of wire fraud. U. S. v. Cowart, C.A.5 (Ga.) 1979, 595F.2d 1023. Telecommunications 1014(2)

Fact that wires utilized in “kiting” scheme were sent from point to point within a single state did not take wiresoutside scope of this section which provides penalties for using interstate telegraphic wire services in a scheme

18 U.S.C.A. § 1343


to defraud where the wires were actually routed through another state and traveled thousands of miles interstateand where the interstate wires were essential to the fraudulent scheme by reason of fact that it was delay occa-sioned by the transmissions which made it possible for defendant to defraud telegraph company of nearly$68,000. U. S. v. Davila, C.A.5 (Tex.) 1979, 592 F.2d 1261, rehearing denied 597 F.2d 283, certiorari denied100 S.Ct. 85, 444 U.S. 843, 62 L.Ed.2d 56. Telecommunications 716

Telephone call between defendant located in Illinois and coconspirator in Missouri provided sufficient interstatenexus for this section. Weisser v. Ciccone, C.A.8 (Mo.) 1976, 532 F.2d 101. Telecommunications 1014(1)

Where a telegram, which indictment alleged that defendants caused to be transmitted by interstate and foreignwire from Los Angeles, California, to Mexico City, Mexico by Dallas and San Antonio, Texas, for purpose ofexecuting scheme and artifice to defraud named persons, went over telegraph company's lines to Dallas, where itceased to be electric signal and took on tangible form for retransmission to San Antonio and thence to MexicoCity, there was interstate transmission of message, proscribed by statutes in effect at time of alleged offense nota foreign communication. Wentz v. U. S., C.A.9 (Cal.) 1957, 244 F.2d 172, certiorari denied 78 S.Ct. 49, 355U.S. 806, 2 L.Ed.2d 50. Telecommunications 1014(2)

Arbitration judgment creditor failed to provide any particular detail indicating locations of debtor's chairman andtreasurer when they had alleged interstate phone call regarding outstanding debt owed to creditor, or to allegethat they discussed avoiding paying creditor, as would have constituted predicate acts of mail or wire fraud, pre-cluding claim in action to enforce arbitration award of $314,925.59 that debtor and its affiliated companies viol-ated Racketeer Influenced and Corrupt Organizations Act (RICO). Plainville Elec. Products Co., Inc. v. VulcanAdvanced Mobile Power Systems, LLC, D.Conn.2009, 638 F.Supp.2d 245. Fraud 44; Telecommunications

1014(12)

Wire fraud statute requires that the transmission itself must be “in interstate or foreign commerce,” and, thus,government must prove beyond a reasonable doubt that the pertinent wire transmissions actually crossed statelines; “use” of the mechanisms of interstate commerce is not enough for conviction under the statute. U.S. v.Phillips, D.Mass.2005, 376 F.Supp.2d 6, affirmed 238 Fed.Appx. 631, 2007 WL 2404476, certiorari denied 128S.Ct. 1288, 552 U.S. 1210, 170 L.Ed.2d 113. Telecommunications 1014(2)

Where communications that were pled by plaintiff as predicate acts of wire fraud in support of her civil claimunder the Racketeer Influenced and Corrupt Organizations Act (RICO) all occurred in Puerto Rico, and did notextend across state lines, such communications could not violate federal wire fraud statute and were insufficientto qualify as predicate acts required by RICO. Hernandez v. Ballesteros, D.Puerto Rico 2004, 333 F.Supp.2d 6,affirmed 449 F.3d 240, rehearing and rehearing en banc denied , certiorari denied 127 S.Ct. 964, 549 U.S. 1128,166 L.Ed.2d 732. Racketeer Influenced And Corrupt Organizations 10; Telecommunications1014(12)

Invocation of wire fraud statute requires interstate telephone call. Bernstein v. Misk, E.D.N.Y.1997, 948 F.Supp.228. Telecommunications 1014(2)

18 U.S.C.A. § 1343


Where investor and investment advisor were both New York residents, telephone calls between them were pre-sumed to be intrastate, and jurisdictional prerequisite for invocation of wire fraud statute, as predicate act ofRacketeer Influenced and Corrupt Organizations Act (RICO) claim, was not satisfied. McCoy v. Goldberg,S.D.N.Y.1990, 748 F.Supp. 146. Telecommunications 1014(12)

111. Means of transmission, use of wire, radio or television--Generally

Wire fraud conviction can be sustained on basis of telephone communication even though the communicationoccurred by means other than wire. U. S. v. Foley, C.A.8 (Ark.) 1982, 683 F.2d 273, certiorari denied 103 S.Ct.463, 459 U.S. 1043, 74 L.Ed.2d 613. Telecommunications 1014(2)

Government failed to establish that operators of Internet prescription drug business violated mail and wire fraudstatutes, as required to establish criminal contempt based on disobedience of preliminary injunction barring op-eration of business in violation of those statutes; there was insufficient showing that procedure for obtaining on-line prescriptions was inadequate. U.S. v. Smith, D.Minn.2007, 502 F.Supp.2d 852. Injunction 1737

112. ---- Faxes, means of transmission, use of wire, radio or television

Sufficient evidence established that transmission of fax from lead attorney to defendant's office which containedchart of diet drug settlement claimants' names and settlement amounts and requesting releases was sent pursuantto fraud scheme to recover funds from diet drug settlement, as required to support defendant's wire fraud convic-tion; scheme was not completed until defendant received attorney fees for his participation in scheme to recoverfunds from settlement. U.S. v. Arledge, C.A.5 (Miss.) 2008, 553 F.3d 881, certiorari denied 129 S.Ct. 2028, 173L.Ed.2d 1088. Telecommunications 1018(4)

Evidence that defendant had facsimile machine and routinely sent purchase orders to victim, seeking to acquirecomputer software at discounted prices by fraudulently claiming that he represented different educational insti-tutions, was sufficient to permit reasonable jury to infer that each of the eight fraudulent purchase orders that de-fendant had transmitted to victim was sent using the wires, and to support wire fraud convictions with respect toeach of these eight orders, though no evidence was presented as to how one order was sent. U.S. v. Robertson,C.A.11 (Ga.) 2007, 493 F.3d 1322, certiorari denied 128 S.Ct. 1295, 552 U.S. 1212, 170 L.Ed.2d 117. Telecom-munications 1018(4)

Faxes sent by defendant in response to inquiries about unauthorized withdrawals from partnership reserve ac-counts, sent three years after money was withdrawn, satisfied wire element of wire fraud; although faxes werenot direct responses to the inquiries, they did refer to the withdrawals, and could be read as attempted to talkaround issue, to confuse matters, and ultimately to delay or avoid detection. U.S. v. Lopez, C.A.1 (Puerto Rico)1995, 71 F.3d 954, certiorari denied 116 S.Ct. 2529, 518 U.S. 1008, 135 L.Ed.2d 1053, certiorari dismissed 117S.Ct. 38, 518 U.S. 1057, 135 L.Ed.2d 1129. Telecommunications 1014(6)

113. ---- Microwaves, means of transmission, use of wire, radio or television

Fact that part of interstate telephone call may possibly have been carried in part by a microwave does not mean

18 U.S.C.A. § 1343


that it would not constitute a wire or radio communication within meaning of this section proscribing wire fraud.U. S. v. King, C.A.8 (Mo.) 1978, 590 F.2d 253, certiorari denied 99 S.Ct. 1538, 440 U.S. 973, 59 L.Ed.2d 790.Telecommunications 1014(1)

Fact that portion of interstate telephone calls are transmitted by microwave, a radio relay, does not exclude tele-phone calls from scope of this section. U. S. v. Bohr, C.A.8 (Mo.) 1978, 581 F.2d 1294, certiorari denied 99S.Ct. 361, 439 U.S. 958, 58 L.Ed.2d 351. Telecommunications 1014(1)

114. ---- Telephones, means of transmission, use of wire, radio or television

Evidence was sufficient to support federal convictions for mail and wire fraud and conspiracy arising out of tele-marketing scam involving phony insurance contracts, contrary to defendant's contention that evidence estab-lished nothing more than that defendant was employee of fraudulent scheme; defendant admitted to police thathe was office manager at scheme's headquarters, and there was evidence that defendant himself leased officespace, rented mailboxes, received mail, and cashed money orders on behalf of sham companies set up to carryout scheme. U.S. v. Mornan, C.A.3 (Pa.) 2005, 413 F.3d 372, appeal after new sentencing hearing 186Fed.Appx. 192, 2006 WL 1795122, post-conviction relief denied 2008 WL 2578638. Conspiracy 47(5);Postal Service 49(11); Telecommunications 1018(4)

Judgment creditor's allegation that judgment debtor's owner falsely stated during telephone conversation thatjudgment debtor no longer existed, thereby leading judgment creditor not to sue for breach of contract whilejudgment debtor still had assets, adequately alleged wire fraud claim against owner. Deck v. Engineered Lamin-ates, C.A.10 (Kan.) 2003, 349 F.3d 1253. Fraud 43

Use of interstate telephones to defraud was sustained by evidence that defendant used interstate phone calls toregulate and control contract between his employer and supplier whereby defendant got payments on percentagebasis depending upon amount of paper delivered under contract which had been obtained by fraud. U. S. v. Ha-senstab, C.A.2 (N.Y.) 1978, 575 F.2d 1035, certiorari denied 99 S.Ct. 100, 439 U.S. 827, 58 L.Ed.2d 120. Tele-communications 1018(4)

Under this section penalizing fraud by radio, wire or television, defendant could be convicted of devising ascheme to obtain money by false and fraudulent pretenses and representations transmitted by means of interstatetelephone. Rose v. U. S., C.A.10 (Colo.) 1955, 227 F.2d 448. Telecommunications 1014(9)

Plaintiff failed to identify dates of alleged phone calls with defendants, where phone calls took place, or thatduring phone calls, defendants knowingly made false representations to plaintiff, as required to plead wire fraudwith particularity under rules of civil procedure. Mathon v. Feldstein, E.D.N.Y.2004, 303 F.Supp.2d 317. Feder-al Civil Procedure 636

All that is needed for violation of statute proscribing wire fraud is scheme to defraud and at least one jurisdic-tional telephone call made in furtherance of that scheme. Banco de Desarrollo Agropecuario, S.A. v. Gibbs,S.D.Fla.1986, 640 F.Supp. 1168. Telecommunications 1014(2)

18 U.S.C.A. § 1343


Telephone calls which were inferably between Manhattan locations and were thus intrastate in nature were notsufficient to constitute violation of the wire fraud statute [18 U.S.C.A. § 1343] for purposes of establishing pre-dicate act in action under the Racketeer Influenced and Corrupt Organizations Act [18 U.S.C.A. § 1961 et seq.].Utz v. Correa, S.D.N.Y.1986, 631 F.Supp. 592. Racketeer Influenced And Corrupt Organizations 10

This section, extending mail fraud, could apply to telephone conversation alleged to have been held for purposeof executing scheme to defraud. U S v. Guterma, E.D.N.Y.1959, 179 F.Supp. 420, adhered to on rehearing 181F.Supp. 195. Telecommunications 1014(2)

114a. ---- Wire-transmission, means of transmission, use of wire, radio or television

In prosecution for wire fraud arising out of mortgage fraud scheme, wire-transmission was established by testi-mony from mortgage company employees about company's customary business practice of using wire system toprocess mortgage loan transactions, a system that it began using at least three years before defendants' conduct.U.S. v. Stalnaker, C.A.5 (Miss.) 2009, 571 F.3d 428. Telecommunications 1018(4)

115. Number of transmissions, use of wire, radio or television

Single interstate telephone call made by defendant at request of sheriff, whom defendant allegedly attempted tobribe, was sufficient to establish jurisdiction under this section where ample evidence supported finding thatsheriff requested defendant's call before sheriff knew that defendant was out of state, and call facilitated briberyand was made for purpose of executing bribery scheme. U.S. v. Pecora, C.A.5 (La.) 1982, 693 F.2d 421, rehear-ing denied 697 F.2d 1092, certiorari denied 103 S.Ct. 3087, 462 U.S. 1119, 77 L.Ed.2d 1348. Telecommunica-tions 1014(6)

All that is needed for violation of this section are a scheme to defraud and at least one jurisdictional telephonecall made in furtherance of that scheme. U. S. v. Patterson, C.A.5 (Tex.) 1976, 534 F.2d 1113. Telecommunica-tions 1014(2)

116. Time of transmission, use of wire, radio or television

Calls made after defendant had fraudulently obtained goods nevertheless furthered fraudulent scheme by lullingvictims into not acting, and thus could form basis for wire fraud charges. U.S. v. O'Connor, C.A.7 (Wis.) 1989,874 F.2d 483. Telecommunications 1014(6)

Evidence was sufficient to sustain defendant's conviction on count of wire fraud, in view of evidence of long-distance telephone conversation in which defendant reassured assignee, who had previously, and subsequently,loaned defendant money, that fictitious assigned option to purchase did exist and that documents evidencing op-tion would be provided since, from such evidence, jury could reasonably have concluded that fraudulent schemehad not reached fruition before telephone call or that, even if fraud was executed on previous date when defend-ant misrepresented existence of option to purchase and obtained loan from assignee in exchange for assignmentof option to him, telephone call on later date was in furtherance of scheme. U. S. v. Tackett, C.A.8 (Mo.) 1981,646 F.2d 1240. Telecommunications 1018(4)

18 U.S.C.A. § 1343


Defendant was properly convicted of mail fraud and wire fraud even though telegram, telegraph and mail wereused after delivery of money, where calls and wires occurred before scheme to defraud had been completed inthat after receiving sums of money on false invoices the defendants sought to obtain further funds on false in-voices. Hayden v. U. S., C.A.9 (Cal.) 1965, 343 F.2d 459, certiorari denied 86 S.Ct. 63, 382 U.S. 828, 15L.Ed.2d 72. Postal Service 35(8); Telecommunications 1014(6)

Telegrams, which were “lulling” telegrams sent for purpose of conveying assurances to victims of fraud and ofpreventing, on their part, action which might have interfered with carrying out of scheme, were sufficient to beconsidered as evidence of violation of this section prohibiting fraud by wire, radio, or television, even thoughsuch telegrams were sent after fraud had been perpetrated. Wiltsey v. U.S., C.A.4 (Va.) 1955, 222 F.2d 600.Telecommunications 1014(6)

117. Transmittal of communication, use of wire, radio or television

Transfers underlying wire fraud charges were communicative, notwithstanding contention that evidence failed toshow use of wire “communications” to further fraudulent scheme, in that transfers conveyed information aboutaccounts from and into which funds were to be transferred and amounts to be transferred, and they in fact trans-ferred those funds. U.S. v. Bailey, C.A.10 (Kan.) 2003, 327 F.3d 1131. Telecommunications 1014(6)

In this section providing that whoever, having devised or intending to devise any scheme or artifice to defraud,transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or for-eign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or ar-tifice shall be fined or imprisoned, “transmit” is not limited to the initial act which sends the message on theway, but embraces both the sending and the receiving of the message. U. S. v. Fassoulis, S.D.N.Y.1960, 185F.Supp. 138. Telecommunications 1014(6); Telecommunications 1168

118. Recipients of transmissions, use of wire, radio or television

A conviction for causing interstate telephone calls to be made pursuant to a scheme of securities fraud does notrequire that calls be placed to victim of fraud. U.S. v. Johnson, C.A.5 (Tex.) 1983, 700 F.2d 163, on rehearing718 F.2d 1317. Telecommunications 1014(6)

Where, when defendant talked on the phone with government agent he was unaware of agent's status but felt thathe was an accomplice in scheme to defraud brokerage house and in such phone calls defendant explained toagent exactly what he was supposed to do, such call could form basis for prosecution under this section. U. S. v.Hammond, C.A.5 (Fla.) 1979, 598 F.2d 1008, on rehearing 605 F.2d 862. Telecommunications 1014(6)

All that this section requires is a scheme to defraud and an interstate call made in furtherance of that scheme;communication need not be directed to victim of the fraudulent scheme. U. S. v. Wise, C.A.8 (Minn.) 1977, 553F.2d 1173. Telecommunications 1014(6)

Contention that this section only proscribes conduct which defrauds party receiving wire communication, not

18 U.S.C.A. § 1343


party transmitting it, was without merit. U. S. v. Auler, C.A.7 (Wis.) 1976, 539 F.2d 642, certiorari denied 97S.Ct. 1132, 429 U.S. 1104, 51 L.Ed.2d 555. Telecommunications 1014(1)

This section does not have to be read to apply only to frauds committed on recipient of the message, rather thanon the transmitter. U. S. v. Scaramuzzo, C.A.9 (Nev.) 1974, 505 F.2d 102. Telecommunications 1014(2)

119. Persons liable, use of wire, radio or television--Generally

Defendant's supervisory cover for state janitors' theft by fraud or money of property, by which state janitors fals-ified their attendance logs and collected full salaries through direct deposit, was sufficient to establish “use ofwires” element of federal wire fraud conviction. U.S. v. Turner, C.A.7 (Ill.) 2008, 551 F.3d 657, rehearing andrehearing en banc denied , certiorari denied 129 S.Ct. 2748, 174 L.Ed.2d 249, post-conviction relief dismissed2010 WL 1994858, post-conviction relief granted in part, denied in part 2011 WL 3859726, reversed and re-manded 693 F.3d 756. Telecommunications 1014(2)

Defendant may be convicted of wire fraud even if she did not perform every key act herself as long as it isshown that she knowingly and willingly participated in scheme. U.S. v. Maxwell, C.A.D.C.1990, 920 F.2d 1028,287 U.S.App.D.C. 234. Telecommunications 1014(11)

In prosecution for wire fraud and for possession and delivery of false, forged, or counterfeit stock certificates ofa foreign corporation with intent to defraud, evidence was sufficient to sustain convictions of defendant who wasa major stockholder and officer of shell corporation which was trying to borrow $5,000,000 from a Europeanbank by using counterfeit stock as collateral and an active participant in venture. U.S. v. Pitt, C.A.11 (Fla.)1983, 717 F.2d 1334, rehearing denied 720 F.2d 1294, certiorari denied 104 S.Ct. 1421, 465 U.S. 1068, 79L.Ed.2d 746. Receiving Stolen Goods 8(3); Telecommunications 1018(4)

Evidence that defendant acted as escrow agent in scheme whereby brokerage fees for arranging loans wereplaced in escrow until loan commitments were issued and “paper” corporation subsequently issued valuelessloan commitments and that defendant had assured numerous borrowers that the corporation had assets in excessof 100 million dollars sustained determination that defendant was an active participant in the scheme and wasguilty of fraud by mail, fraud by wire, interstate transportation of a check taken and converted by fraud and con-spiracy. U. S. v. Moore, C.A.5 (Fla.) 1974, 505 F.2d 620, certiorari denied 95 S.Ct. 1581, 421 U.S. 918, 43L.Ed.2d 785. Conspiracy 47(5); Postal Service 49(11); Receiving Stolen Goods 8(3); Telecom-munications 1018(4)

Where one of the defendants was present at meetings among alleged conspirators at which details of schemewere planned and carried out, and he received substantial shares of proceeds of fraudulently obtained advancefees, and he presented himself, or was presented, to various victims under aliases and in false capacities andmade a variety of misrepresentations to victims about corporation, he was properly convicted of seven counts ofwire and mail fraud, interstate travel in execution of a fraud and conspiracy. U. S. v. Crisona, C.A.2 (N.Y.)1969, 416 F.2d 107, certiorari denied 90 S.Ct. 991, 397 U.S. 961, 25 L.Ed.2d 253, certiorari denied 90 S.Ct.993, 397 U.S. 961, 25 L.Ed.2d 253. Commerce 82.10; Conspiracy 28(3); Postal Service 35(20);

18 U.S.C.A. § 1343


Telecommunications 1014(11)

Even though president of corporation was not proved by government to have specifically directed advertisingagency to advertise factually false claims made by “live endorsers” with respect to corporation's alleged weight-reducing drug, inasmuch as president reviewed and approved the “live endorser” campaign, he was not insulatedfrom liability for propagation of false claims. U. S. v. Andreadis, C.A.2 (N.Y.) 1966, 366 F.2d 423, certioraridenied 87 S.Ct. 703, 385 U.S. 1001, 17 L.Ed.2d 541. Corporations And Business Organizations 2016

In prosecution for violations of Securities Act of 1933, section 77a et seq. of Title 15, and this chapter, fact thatdefendant might not have been a party to sales which were made by brokerage personnel pursuant to scheme didnot exonerate him from charges of securities fraud and mail fraud and, if defendant with criminal intent to de-fraud joined the scheme and thus became part of it, he was guilty. U. S. v. Dukow, W.D.Pa.1971, 330 F.Supp.360. Postal Service 35(20); Securities Regulation 192; Securities Regulation 193

120. ---- Accountants, persons liable, use of wire, radio or television

In prosecution for conspiracy, mail fraud, and wire fraud arising out of operation of loan brokerage business,evidence of intent to defraud and conspiratorial agreement was insufficient to sustain conviction of business'bookkeeper, who had endorsed checks payable to corporation, had written salesmen's commission checks, had“logged in” contracts as they were received from sales staff, had occasionally answered telephone, and had actedas secretary-treasurer of corporation, in view of lack of any evidence that bookkeeper played any part in sub-stantive decisionmaking and in view of affirmative, uncontradicted testimony that she did not actively particip-ate in sales and board of directors meetings. U. S. v. Wrehe, C.A.8 (S.D.) 1980, 628 F.2d 1079. Conspiracy47(5); Postal Service 49(11); Telecommunications 1018(4)

Evidence that defendant, an accountant for corporation which allegedly issued and sold mortgage-backed loansas part of scheme to defraud investor banks, was aware that loans were being sold to investors across country,that wire transfers were commonly used in banking industry, and that corporation instructed its investors to wirefunds for loan purchases to its bank account, was sufficient to support finding that wire transfers were caused tobe made by members of scheme, and supported defendant's wire fraud conviction. U.S. v. Butler, E.D.Va.1989,704 F.Supp. 1338, affirmed 905 F.2d 1532, certiorari denied 111 S.Ct. 257, 498 U.S. 900, 112 L.Ed.2d 215.Telecommunications 1018(4)

121. ---- Conspiracy, persons liable, use of wire, radio or television

Defendant need not have made telephone calls himself to be criminally responsible for others' use of interstatewires in furtherance of scheme to defraud; as member of conspiracy, he was responsible for wire communica-tions caused by other conspirators, whether he knew of or agreed to any specific communication. U.S. v.Lindemann, C.A.7 (Ill.) 1996, 85 F.3d 1232, rehearing and suggestion for rehearing en banc denied, certioraridenied 117 S.Ct. 392, 519 U.S. 966, 136 L.Ed.2d 307. Telecommunications 1014(11)

IV. PRACTICE AND PROCEDURE

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<Subdivision Index>

Admissibility of evidence 169-186, 211Admissibility of evidence - Generally 169Admissibility of evidence - Bank records 170Admissibility of evidence - Business records 171Admissibility of evidence - Checks or money orders 172Admissibility of evidence - Circumstantial evidence 185Admissibility of evidence - Codefendant's testimony 173Admissibility of evidence - Expert testimony 174Admissibility of evidence - Harmless or prejudicial error 211Admissibility of evidence - Identification of defendant 175Admissibility of evidence - Motive and intent 184Admissibility of evidence - Other crimes 176Admissibility of evidence - Photographs 178Admissibility of evidence - Pleas 177Admissibility of evidence - Relevant evidence 186Admissibility of evidence - Similar acts or transactions 179Admissibility of evidence - Tapes, transcripts, or wiretaps 180Admissibility of evidence - Telephone bills 181Admissibility of evidence - Telephone conversations 182Admissibility of evidence - Voice identification 183

Affirmance 216Arrest 152Bank records, admissibility of evidence 170Bill of particulars 161Burden of proof 168Business records, admissibility of evidence 171Checks or money orders, admissibility of evidence 172Circumstantial evidence, admissibility of evidence 185Circumstantial evidence, weight and sufficiency of evidence 193Clearly erroneous standard 219, 220

Clearly erroneous standard - Miscellaneous not clearly erroneous 219Clearly erroneous standard - Misleading representations 220

Codefendant's testimony, admissibility of evidence 173Comments or conduct of counsel 165Comments or conduct of counsel, harmless or prejudicial error 212Comments or conduct of court 164Conspiracy, weight and sufficiency of evidence 194Continuance 156Discovery and inspection 166Evidentiary basis, sentence and punishment 205Examination of witnesses 187Examination of witnesses, harmless or prejudicial error 213Expert testimony, admissibility of evidence 174

18 U.S.C.A. § 1343


Harmless or prejudicial error 210-214Harmless or prejudicial error - Generally 210Harmless or prejudicial error - Admissibility of evidence 211Harmless or prejudicial error - Comments or conduct of counsel 212Harmless or prejudicial error - Examination of witnesses 213Harmless or prejudicial error - Instructions 214

Identification of defendant, admissibility of evidence 175Indictment or information 158-160

Indictment or information - Generally 158Indictment or information - Surplusage 159Indictment or information - Variance 160

Injunction 155Instructions 189Instructions, harmless or prejudicial error 214Intent, weight and sufficiency of evidence 195Issues reviewable, scope of review 208Jurisdiction 153Jury deliberations 190Knowledge, weight and sufficiency of evidence 196Miscellaneous not clearly erroneous, clearly erroneous standard 219Misleading representations, clearly erroneous standard 220Mistrial 202Motive and intent, admissibility of evidence 184New trial 203Other crimes, admissibility of evidence 176Photographs, admissibility of evidence 178Pleas 162Pleas, admissibility of evidence 177Preliminary hearing 163Presumptions 167Questions for jury 188Relevant evidence, admissibility of evidence 186Remand 218Restitution, sentence and punishment 206Reversal 217Schemes, weight and sufficiency of evidence 197Scope of review 207-209

Scope of review - Generally 207Scope of review - Issues reviewable 208Scope of review - Sentence 209

Search and seizure 151Sentence and punishment 204-206

Sentence and punishment - Generally 204Sentence and punishment - Evidentiary basis 205Sentence and punishment - Restitution 206

18 U.S.C.A. § 1343


Sentence, scope of review 209Severance 157Similar acts or transactions, admissibility of evidence 179Statements, weight and sufficiency of evidence 200aSubstitution of jurors 191Surplusage, indictment or information 159Tapes, transcripts, or wiretaps, admissibility of evidence 180Tapes, transcripts, or wiretaps, weight and sufficiency of evidence 198Telephone bills, admissibility of evidence 181Telephone conversations, admissibility of evidence 182Telephone conversations, weight and sufficiency of evidence 199Vacation of judgment 215Variance, indictment or information 160Venue 154Verdict 201Voice identification, admissibility of evidence 183Voice identification, weight and sufficiency of evidence 200Weight and sufficiency of evidence 192-200a

Weight and sufficiency of evidence - Generally 192Weight and sufficiency of evidence - Circumstantial evidence 193Weight and sufficiency of evidence - Conspiracy 194Weight and sufficiency of evidence - Intent 195Weight and sufficiency of evidence - Knowledge 196Weight and sufficiency of evidence - Schemes 197Weight and sufficiency of evidence - Statements 200aWeight and sufficiency of evidence - Tapes, transcripts, or wiretaps 198Weight and sufficiency of evidence - Telephone conversations 199Weight and sufficiency of evidence - Voice identification 200

151. Search and seizure, practice and procedure

Issuing judge had substantial basis for concluding that probable cause existed that defendant had engaged inconspiracy to commit wire fraud and money laundering, as required for search warrant, where, among otherthings, person involved in offense came forward to admit his wrongdoing and that person stated that co-conspirators had solicited individuals to purchase homes, fraudulent construction invoices were prepared for de-fendant which claimed that work had been performed, and, at closing, checks were issued to defendant eventhough no work had been performed. U.S. v. Clay, C.A.8 (Ark.) 2010, 618 F.3d 946, rehearing and rehearing enbanc denied , certiorari denied 131 S.Ct. 1540, 179 L.Ed.2d 309, denial of post-conviction relief affirmed 720F.3d 1021. Searches And Seizures 114

Bills, invoices, bills of lading, and yellow pads with handwritten notes about orders, which items were in plainview of officers executing search warrant at storage warehouse for miscellaneous merchandise fraudulently ob-tained from vendors in violation of mail fraud statutes, were properly seized by the officers under plain view ex-ception to warrant requirement, despite defendants' contention that box full of miscellaneous papers could nothave been immediately recognized as evidence without going through the box and reading each item to determ-

18 U.S.C.A. § 1343


ine its evidentiary importance. U.S. v. Blum, C.A.11 (Ala.) 1985, 753 F.2d 999. Searches And Seizures148

Record supported conclusion that telephone company had not been acting as instrument or agent of federal gov-ernment in tapping defendant's home telephone to record times of calls made, numbers dialed and fact that de-fendant had used a “blue box,” a type of signal frequency generator, to circumvent long-distance billing equip-ment, in prosecution for wire fraud. U. S. v. Manning, C.A.6 (Tenn.) 1976, 542 F.2d 685, certiorari denied 97S.Ct. 1103, 429 U.S. 1092, 51 L.Ed.2d 537. Criminal Law 392.49(9)

Although recital in special agent's affidavit that telephone company plant manager had advised agent that a tele-phone company search had revealed that electronic devices were being used to circumvent billing and record-keeping machinery for long-distance calls over specified telephone number might not have been sufficient inand of itself to justify issuance of search warrant, there was sufficient probable cause to justify warrant in viewof additional recitals that records of defendant's telephone number showed numerous calls to inoperative “800”number in Massachusetts and fact that affidavit revealed telephonic expertise in accumulation of the affidavits'contents; thus, two “blue boxes”, which officers discovered during course of search under warrant, were admiss-ible. U. S. v. Douglas, C.A.9 (Nev.) 1975, 510 F.2d 266. Criminal Law 392.16(2); Searches And Seizures

114

Defendants who were charged with mail and wire fraud as result of scheme involving purchase of money ordersand use of bank account had no standing to assert rights under U.S.C.A. Const.Amends. 4 and 5 with respect tobank records and telegraph company records. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205, certioraridenied 90 S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Constitutional Law 725; Searches And Seizures

164

There was no merit to contention of defendant, convicted of violations of this section relating to schemes to ob-tain money by means of fraudulent pretenses transmitted by wire, radio or television communications, in inter-state commerce and for sale of stolen goods which have moved in interstate commerce, that incriminating evid-ence had been obtained as result of an illegal search. Lofland v. U. S., C.A.9 (Cal.) 1966, 357 F.2d 472, certior-ari denied 87 S.Ct. 755, 385 U.S. 1026, 17 L.Ed.2d 675. Criminal Law 392.15(1)

Defendant has no standing to object to submission of evidence obtained by Federal Bureau of Investigationagents from a third party where evidence at trial disclosed that defendant gave items to his agent as his salesmanto show third party to induce purchases that were subject of wire fraud prosecution. U. S. v. Buttram,W.D.Pa.1977, 432 F.Supp. 1269, affirmed 568 F.2d 770, certiorari denied 98 S.Ct. 1646, 435 U.S. 995, 56L.Ed.2d 84. Criminal Law 392.41

Where telephone company, having experienced technical difficulties with dialed number recorder placed on de-fendant's line to determine if he was using a “blue box,” placed a tape recorder on the line which recorded thefirst two minutes of each conversation, where recorder remained in service from August 1 to September 18th,where telephone call placed with use of “blue box” was traced on September 17th, and where recordings of alllegally placed calls were destroyed, telephone company had not exceeded its statutory authority to investigate

18 U.S.C.A. § 1343


cases involving “blue boxes” on theory that it had continued the recordings after it had enough information toobtain wire fraud indictment against defendant. U. S. v. Harvey, E.D.Ark.1975, 394 F.Supp. 228, affirmed 540F.2d 1345. Telecommunications 1440

Evidence of alleged scheme to defraud and of alleged violation of Communications Act, section 605 of Title 47,obtained by telephone company through monitoring calls by its own employee, was not obtained in violation ofU.S.C.A. Const.Amend. 4 rights and telephone company did not violate rights by divulging information ac-quired. U. S. v. Beckley, N.D.Ga.1965, 259 F.Supp. 567. Telecommunications 1440

152. Arrest, practice and procedure

Complaint, which indicated that husband and wife were billed for four tires and repairs, that such services hadbeen performed on accused's car on request of person using husband's name, that wife was billed for seven longdistance phone calls which she did not make, that one of calls was placed to certain residence and that ownerstated that a long distance call had been received from a person bearing same name as accused, contained an ad-equate basis on its face for finding probable cause for issuance of warrant for accused's arrest for wire fraud. U.S. v. Olsen, C.A.8 (Minn.) 1973, 487 F.2d 77, certiorari denied 94 S.Ct. 1594, 415 U.S. 993, 39 L.Ed.2d 890, re-hearing denied 94 S.Ct. 2005, 416 U.S. 975, 40 L.Ed.2d 565. Criminal Law 211(3)

153. Jurisdiction, practice and procedure

Application of wire fraud statute to defendants who were engaged in smuggling scheme in order to evade Cana-dian liquor importation taxes did not improperly give statute extraterritorial effect; offense was complete whendefendants executed there scheme, intending to defraud Canada of tax revenues, inside United States.Pasquantino v. U.S., U.S.2005, 125 S.Ct. 1766, 544 U.S. 349, 161 L.Ed.2d 619, rehearing denied , rehearingdenied 125 S.Ct. 2931, 545 U.S. 1135, 162 L.Ed.2d 880, grant of post-conviction relief affirmed 230 Fed.Appx.255, 2007 WL 1149917. Telecommunications 1014(1)

District court had jurisdiction over case in which defendant was charged with wire fraud in connection with ascheme to defraud the government by making false statements in an effort to obtain more than $320,000 in vet-erans' benefits, although defendant's appeal from decision of the Board of Veterans' Appeals regarding his disab-ility rating and entitlement to benefits was pending before the Court of Appeals for Veterans Claims, wherecriminal prosecution was independent of the administrative review process. U.S. v. Roberts, C.A.7 (Wis.) 2008,534 F.3d 560, rehearing en banc denied , certiorari denied 129 S.Ct. 1028, 555 U.S. 1139, 173 L.Ed.2d 297.Criminal Law 95

District court had no authority to correct defendant's sentence for wire fraud in order to bring it into compliancewith applicable statutory maximum sentence three months after expiration of seven-day period provided for inrules of criminal procedure for correction of sentence that resulted from arithmetical, technical, or other clear er-ror. U.S. v. Baldwin, C.A.7 (Ill.) 2005, 414 F.3d 791. Sentencing And Punishment 2285

Wire fraud statute could be extraterritorially applied to reach fraud involving inflated travel invoices committed

18 U.S.C.A. § 1343


by American citizen while on foreign soil against United Nations where fraud was furthered by wire transmis-sions to and from New York bank. U.S. v. Kim, C.A.2 (N.Y.) 2001, 246 F.3d 186. Criminal Law 18

District court had jurisdiction to prosecute Native American defendants for wire fraud in furtherance of schemeto defraud residents of Passamaquoddy Reservation of honest services of their police chief in connection withtobacco smuggling scheme, as federal statutory violations were not specific to Native Americans but were ofgeneral applicability, given interest of United States in preventing use of wires in interstate commerce to furtherscheme to defraud, including scheme to deprive another of intangible right to honest services, and defendantsfailed to show how application of federal statutes would interfere with any Native American right that was pro-tected by statute or treaty or integral to self-government. U.S. v. Boots, C.A.1 (Me.) 1996, 80 F.3d 580, certior-ari denied 117 S.Ct. 263, 519 U.S. 905, 136 L.Ed.2d 188. Indians 272

District court had jurisdiction over charges of causing commission of wire fraud and causing commission of in-terstate and foreign transportation of fraudulently obtained money, even though transfer and transportation inquestion were between two foreign cities, since transfer and transportation was caused by actions of defendant,an American national located in United States, using instrumentality of innocent persons to bring about transferand causing an intentional effect upon foreign commerce. U.S. v. Goldberg, C.A.3 (Pa.) 1987, 830 F.2d 459.Criminal Law 97(.5)

Based upon coconspirator's testimony in wire fraud prosecution, a rational trier of fact could have found beyonda reasonable doubt that telephone call from which the charge arose was an interstate call and, thus, district courthad subject manner jurisdiction over the case. U.S. v. Vincent, C.A.9 (Nev.) 1985, 758 F.2d 379, certioraridenied 106 S.Ct. 116, 474 U.S. 838, 88 L.Ed.2d 95. Criminal Law 95

Wire transfers from Swiss bank to personal accounts of vice-president of Canadian bank were sufficient jurisdic-tional predicate for counts charging defendant with wire fraud in connection with illegal payments to vice-president, since there was sufficient evidence for jury to find that defendant effectively controlled Swiss bank;until vice-president arranged to transfer funds to his accounts at Canadian bank, crime was not complete. U. S.v. Sindona, C.A.2 (N.Y.) 1980, 636 F.2d 792, certiorari denied 101 S.Ct. 1984, 451 U.S. 912, 68 L.Ed.2d 302.Telecommunications 1014(8)

In view of evidence indicating that defendant had formulated plan to defraud telephone company and his wholesales pitch for “blue boxes” was based on the scheme, by making interstate and foreign phone calls to demon-strate device federal jurisdiction was invoked and such calls violated this section regardless of alleged lack ofactual financial loss because calls were made to information operators and were not subject to tolls. U. S. v. Pat-terson, C.A.5 (Tex.) 1976, 528 F.2d 1037, rehearing denied 534 F.2d 1113, certiorari denied 97 S.Ct. 361, 429U.S. 942, 50 L.Ed.2d 313. Telecommunications 1014(7)

Where scheme was devised in Cleveland and, in executing it, wires were used in sending teletype messages toNew York and from New York to Cleveland and telephone calls were made from Cleveland to Toronto and fromToronto to Cleveland, and victim resided in Cleveland, Federal District Court in Ohio had jurisdiction of prosec-ution for defrauding purchasers of corporate bonds which had been stolen, forged and falsely made, and execut-

18 U.S.C.A. § 1343


ing same by transmitting wire communications in interstate and foreign commerce. U. S. v. Conte, C.A.6 (Ohio)1965, 349 F.2d 304, certiorari denied 86 S.Ct. 313, 382 U.S. 926, 15 L.Ed.2d 339. Criminal Law 113

District Court for Southern District of California, Central Division, had personal jurisdiction over one chargedwith transmitting telegram from city within such division to Mexico City, Mexico, for purpose of executingfraudulent scheme, though he was denied attorney and no proceedings were held for him in Mexico after hisseizure and detention therein by Mexican authorities, who transported him to Laredo, Texas, where he wasturned over to United States government agents who took him to a United States Commissioner, where his affi-davit related no illegal action of United States officers, alleged denial of due process being in Mexico by Mexic-ans. Wentz v. U. S., C.A.9 (Cal.) 1957, 244 F.2d 172, certiorari denied 78 S.Ct. 49, 355 U.S. 806, 2 L.Ed.2d 50.Criminal Law 99

In prosecution under this section, proscribing the interstate transmission by wire, radio, or television, of anywritings, signs, signals, pictures, or sounds for the purpose of executing a fraudulent scheme or artifice, whereevidence showed that telephone call had been made by one of defendants from certain city within jurisdiction ofcourt, evidence was sufficient to support jurisdiction of court to try both defendants for offense. Roberts v. U.S., C.A.6 (Ky.) 1955, 226 F.2d 464, certiorari denied 76 S.Ct. 307, 350 U.S. 935, 100 L.Ed. 817. Criminal Law

564(1)

Major Fraud Act and wire fraud statute applied extraterritorially to alleged conduct of defendant, a Lebanese cit-izen and resident of Kuwait, in defrauding United States by entering into inflated subcontract on prime contractto which United States was party; Major Fraud Act was designed to prevent fraud against United States in mak-ing of contracts in which United States had interest, and same reasoning applied to wire fraud statute to extentthat it was used to prosecute frauds committed against United States. U.S. v. Hijazi, C.D.Ill.2011, 845 F.Supp.2d874. Fraud 68.10(1); International Law 7; Telecommunications 1014(1); United States 121

Mortgagor's claims against mortgagee, which alleged that mortgagee's conduct in unlawfully obtaining moneyfrom mortgagor under federal wire fraud statute constituted a predicate act under Georgia Racketeer Influencedand Corrupt Organizations (RICO) statute, did not raise a substantial federal question, as required to support re-moval of case to federal district court; mortgagor's allegations did not require the court to interpret an independ-ent federal statute, and allegations did not rest solely on federal law, but rather, allegations that mortgagee com-mitted theft by deception and theft by taking could also have served as predicate acts under RICO statute. Austinv. Ameriquest Mortg. Co., N.D.Ga.2007, 510 F.Supp.2d 1218. Removal Of Cases 25(1)

154. Venue, practice and procedure

In prosecution for wire fraud, evidence that defendant transmitted or caused to be transmitted faxes to victims inthe Northern District of Ohio, inducing victims to create an investment partnership that deposited in an Ohiobank account funds eventually acquired by defendant and his coconspirators, was sufficient to support venue inthe Northern District of Ohio. U.S. v. Grenoble, C.A.6 (Ohio) 2005, 413 F.3d 569. Criminal Law 564(1)

Where defendant pursuant to scheme to defraud, placed a person-to-person call from California to Illinois and

18 U.S.C.A. § 1343


the person called being in New York, defendant left a message requesting that such person call him and this wasdone and resulted in perpetration of fraud, venue of prosecution for fraud committed with use of telephone com-munications was properly laid in Illinois federal court. U. S. v. Spiro, C.A.7 (Ill.) 1967, 385 F.2d 210. CriminalLaw 113

The Middle District of Georgia did not have venue of a prosecution for committing fraud by wire, where a partyin Michigan was induced to telegraph money to Atlanta, Georgia on a will call basis, and thereafter the moneywas telegraphed from Atlanta to another point in Georgia with the transmission from Atlanta to the other pointin Georgia paid for by defendant who picked up the money, in view of fact that under such circumstances, theonly interstate transmission was completed upon receipt of the authorization to pay in Atlanta. Boruff v. U. S.,C.A.5 (Ga.) 1962, 310 F.2d 918. Criminal Law 113

Defendant's interstate telephone call with a co-conspirator he knew to be in New York, in which defendant dir-ected the co-conspirator to make more fraudulent purchases of stock so that defendant could sell his stock at anartificially inflated price, was sufficient to establish venue in Eastern District of New York as to count of con-spiracy to commit securities and wire fraud, even though the co-conspirator had been arrested prior to the calland had agreed to cooperate with law enforcement; conspiracy continued after the arrest, since there was com-pelling evidence that defendant and a different co-conspirator worked closely together to unload shares into thecooperating co-conspirator's false buy orders, and the telephone call was in furtherance of that conspiracy. U.S.v. Abdallah, E.D.N.Y.2012, 840 F.Supp.2d 584, affirmed 2013 WL 3198163. Criminal Law 113

Venue for wire fraud and wire fraud conspiracy prosecution was proper in district where codefendant had origin-ated telephone calls incident to fraudulent scheme, even though defendant did not live in that district and de-fendant's alleged part in conspiracy was not performed in that district. U.S. v. Martin, S.D.N.Y.2006, 411F.Supp.2d 370. Criminal Law 113

Venue for bank fraud and wire fraud counts, arising from fraudulent scheme to obtain funds from bank accounts,lay in district where bank and bank accounts were located and through which wire transfers effectuating schemewere routed, though defendant's acts occurred in another district. U.S. v. Korolkov, S.D.N.Y.1994, 870 F.Supp.60. Criminal Law 113

The mailing to Iowa addresses of 200,000 of 15 million postcards sent nationwide in scheme to defraud con-sumers constituted a substantial part of the events giving rise to Government's mail and wire fraud claims, andfact that defendant had agreed to temporarily cease his activities during pendency of Government's action for in-junction did not render venue in Southern District of Iowa improper. U.S. v. Hartbrodt, S.D.Iowa 1991, 773F.Supp. 1240. Federal Courts 88

One of three defendants, prosecuted for mail fraud, wire fraud, and conspiracy to defraud, failed to show thattransfer of proceedings from place of his residence would further interests of justice or convenience of partiesand witnesses, and transfer was therefore denied although motion of another of the three defendants was granted.U. S. v. Aronoff, S.D.N.Y.1978, 463 F.Supp. 454. Criminal Law 124; Criminal Law 127

18 U.S.C.A. § 1343


Where defendant, an alleged agent of a pension fund, had been indicted in seven counts for conspiracy to solicitkickbacks, for substantive offense of agreeing to receive and receiving a kickback and for substantive offensesof wire and mail fraud, and books and records of pension fund in Chicago did not appear to be directly involved,there was no claim of financial hardship, principal witness for government resided in New York and govern-ment's preparation for trial had been done there, trial was imminent and trial was not likely to be protracted sothat inconvenience to defendant and his counsel whose residences were located in Chicago area was not so greatas to be unfair, motion for change of venue to the Northern District of Illinois, Eastern Division, would bedenied. U. S. v. Dorfman, S.D.N.Y.1971, 335 F.Supp. 675. Criminal Law 124

The alleged crime of fraud by telephone and telegraph from Ohio to New York was not required to be prosec-uted in Ohio federal district court but could be prosecuted in New York federal district court. U. S. v. Fassoulis,S.D.N.Y.1960, 185 F.Supp. 138. Criminal Law 113

155. Injunction, practice and procedure

Mail fraud required for issuance of injunction to prohibit sale of devices that allegedly located contraband byidentifying molecular frequencies was established by evidence of false representations were made to numerousconsumers regarding structure and ability of the remote sensing devices, while knowing there was no reasonablescientific basis for the devices to operate as advertised, and that representations were made throughout at least16 states through use of telephone calls and faxes. U.S. v. Quadro Corp., E.D.Tex.1996, 928 F.Supp. 688, af-firmed 127 F.3d 34. Injunction 1195

156. Continuance, practice and procedure

Defendant failed to show that he was prejudiced as result of denial of a two-day continuance, which forced hislead attorney to proceed to trial without cocounsel and required the remaining attorney to cross-examine thegovernment's main witness where record disclosed that the witness' cross-examination was thoroughly adequateto develop defendant's defense; furthermore, trial judge did not abuse his discretion by causing defendant to goto trial with one attorney instead of three. U.S. v. Westbo, C.A.5 (Tex.) 1984, 746 F.2d 1022. Criminal Law

1166(7)

In prosecution for wire fraud, trial court did not abuse its discretion in denying defendant's motion for continu-ance on the first day of trial, in view of fact that defendant sought such continuance in order to enable him to ex-amine certain documents which were made available to defense counsel the day before trial as a courtesy to en-able him to locate materials throughout the trial. U. S. v. Louderman, C.A.9 (Cal.) 1978, 576 F.2d 1383, certior-ari denied 99 S.Ct. 257, 439 U.S. 896, 58 L.Ed.2d 243. Criminal Law 590(1)

157. Severance, practice and procedure

District court did not abuse its discretion in denying defendants' motions for severance in prosecution of moneylaundering and wire fraud charges; illegal scheme involved all three defendants in different ways that were notlikely to cause jury to confuse each defendant's role, jury was adequately instructed on how to assess evidence

18 U.S.C.A. § 1343


independently with respect to each defendant, and all defendants testified. U.S. v. Smith, C.A.4 (Md.) 1995, 44F.3d 1259, certiorari denied 115 S.Ct. 1970, 514 U.S. 1113, 131 L.Ed.2d 859. Criminal Law 622.7(1)

Defendant charged with conspiracy to defraud and four counts of wire fraud was not entitled to severance of histrial from that of codefendant on ground there was great deal of evidence against codefendant relating to fraudu-lent conduct by corporation of which defendant was principal after defendant's participation had ended, wheregovernment stipulated that proof was not being offered against defendant, and trial judge, in charging jury, in-corporated government stipulation and took care to admonish jury to disregard any testimony or exhibits with re-gard to later events when determining guilt of defendant. U.S. v. Ventura, C.A.2 (N.Y.) 1983, 724 F.2d 305.Criminal Law 622.7(8)

In prosecution for wire fraud, trial court did not abuse its discretion in refusing to sever trial of first defendantfrom that of second defendant where first defendant failed to make sufficient showing that second defendantwould waive his privilege under U.S.C.A. Const.Amend. 5 and testify at a separate trial, proposed testimony ofsecond defendant was cumulative and was likely to be subject to substantial impeachment, and burdens wouldhave been placed on the judicial system since motion to sever was not made until near end of the trial. U.S. v.Siegel, C.A.2 (N.Y.) 1983, 717 F.2d 9. Criminal Law 622.7(10)

In prosecution for using interstate wire facilities in carrying out scheme to defraud certain hotel casinos and forconspiracy involving same scheme, adverse pretrial publicity regarding one defendant, who had been convictedon related indictment, did not require severance and separate trials, in view of general rule that persons jointlyindicted should be tried together, where there was no evidence that newspapers containing allegedly prejudicialarticles were circulated in area of trial, and both before and during trial jury was instructed to totally disregardand pay no attention to anything members might read or hear in news media. U. S. v. Scallion, C.A.5 (La.) 1976,533 F.2d 903, certiorari denied 97 S.Ct. 824, 429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97 S.Ct. 1342,430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548 F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S. 943, 56L.Ed.2d 784. Criminal Law 622.7(4)

In prosecution for mail fraud and unlawful transportation of property wherein conspiracy was not alleged but de-fendants were charged with having devised scheme to defraud, denial of severance was not shown to have beenabuse of discretion. U. S. v. Cudd, C.A.10 (Kan.) 1974, 499 F.2d 1239. Criminal Law 622.7(1)

Denial of motions for severance and for continuance in prosecutions for conspiring to defraud and for defraud-ing certain persons through the use of mails and interstate telephonic communications was not an abuse of dis-cretion. U. S. v. Frick, C.A.5 (La.) 1973, 490 F.2d 666, certiorari denied 95 S.Ct. 55, 419 U.S. 831, 42 L.Ed.2d57. Criminal Law 586; Criminal Law 622.7(4)

In exercise of its discretion, court would sever count alleging that employee of securities brokerage firm con-spired to launder money obtained from drug transactions, and counts charging that employee conspired withbank employee to commit bank and wire fraud by using money from bank depositors' accounts to make personalinvestments; evidence connecting defendant with corrupt politician and powerful, violent narcotics cartel mightinfluence jury in less severe bank fraud situation, in which appropriated funds were returned, causing no injury

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to depositors. U.S. v. Villanueva Madrid, S.D.N.Y.2003, 302 F.Supp.2d 187. Criminal Law 620(6)

Where indictment charging conspiracy to violate mail fraud and wire fraud statutes charged a single conspiracy,defendant's motion for severance on ground that there were two conspiracies was premature. U. S. v. Pilnick,S.D.N.Y.1967, 267 F.Supp. 791. Criminal Law 622.8(3)

Thirteen counts of indictment dealing with mail fraud, four counts dealing with wire fraud, and two counts deal-ing with transportation of security taken by fraud should be severed and tried together, where such countsagainst same defendants presented series of acts or transactions constituting offenses connected together andconstituting part of common scheme or plan. U. S. v. Talenfeld, W.D.Pa.1960, 190 F.Supp. 108. Criminal Law

620(6); Criminal Law 622.7(2)

158. Indictment or information, practice and procedure--Generally

Convictions for mail and wire fraud pursuant to honest services theory, in connection with scheme to obtaincommercial driver's licenses (CDL) for students in defendant's truck driving school from defendant's coconspir-ator, a licensed agent of the state who served as CDL examiner, conducted inadequate testing, and submittedfalse paperwork for CDL licenses to the state, thereby depriving state of the honest services of its agent, did notamount to constructive amendment of indictment, as would violate Fifth Amendment; although indictment failedto use phrase “honest services,” its factual allegations indicated that the substance of the charged fraudulentscheme amounted to honest services fraud, indictment cited to the appropriate substantive wire fraud and mailfraud statutes which incorporated the deprivation of honest services theory, and jury instructions advised jury todetermine whether coconspirator had submitted to the state false records for CDL tests purportedly given to de-fendant's students. U.S. v. Redzic, C.A.8 (Mo.) 2009, 569 F.3d 841, rehearing and rehearing en banc denied , va-cated 130 S.Ct. 3543, 177 L.Ed.2d 1121, on remand 627 F.3d 683. Indictment And Information 159(2)

Indictment charging multiple counts of wire fraud based on seven separate wire transmissions made on differentdates and in different amounts of federal funds into account controlled by defendant was not multiplicitous in vi-olation of double jeopardy principles. U.S. v. Williams, C.A.11 (Ga.) 2008, 527 F.3d 1235. Double Jeopardy

26

Indictment charging wire fraud under no-sale theory was legally insufficient when indictment did not assert thatdefendant's alleged misrepresentation had relevance to object of parties' contract in alleging that defendant, asdistributor of regulated solvent, misrepresented that solvent he bought would be exported, such that it was notsubject to excise tax, thereby inducing solvent manufacturer to sell to him product which it would not have soldif it had known that defendant intended to sell solvent domestically. U.S. v. Shellef, C.A.2 (N.Y.) 2007, 507F.3d 82. Telecommunications 1017

Prosecution did not constructively amend superseding indictment that charged that defendant “knowingly de-vised, intended to devise, and participated in a scheme to defraud and obtain money from the United States ofAmerica, through the Department of Veterans Affairs (VA), by means of materially false and fraudulent pre-tenses” by pinpointing a particular step in the payment process and proving at trial another; the evidence at trial

18 U.S.C.A. § 1343


concerned the same elaborate scheme to defraud the United States as was described in the indictment, the start-ing and ending dates of the scheme noted in the indictment and proved at trial were identical, and the evidenceadduced at trial showed that, as described in the indictment, the defendant caused the VA to deposit approxim-ately $32,100 in funds representing payment for services purportedly performed by defendant's sham companyinto an account defendant's bank, well knowing that the company had not provided any such services. U.S. v.Ratliff-White, C.A.7 (Ill.) 2007, 493 F.3d 812, certiorari denied 128 S.Ct. 1070, 552 U.S. 1141, 169 L.Ed.2d 808. Indictment And Information 159(2)

There was no constructive amendment of indictment charging defendants with wire fraud and conspiracy tocommit wire fraud; starting and ending dates of conspiracy noted in indictment corresponded to conspiracyproven at trial and evidence at trial demonstrated that defendants misled investors into believing that defendantswould eventually be able to obtain “frozen funds purportedly belonging to the family of former Filipino presid-ent Ferdinand Marcos” described in indictment. U.S. v. Dupre, C.A.2 (N.Y.) 2006, 462 F.3d 131, certioraridenied 127 S.Ct. 1026, 549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S. 1151, 166L.Ed.2d 773, habeas corpus denied 2012 WL 2953970. Indictment And Information 159(2)

Indictment which set forth all the elements of wire fraud and explained the fraudulent scheme and wires thatbrought defendant his final ill-gotten gains properly charged wire fraud. U.S. v. Alhalabi, C.A.7 (Ill.) 2006, 443F.3d 605, rehearing and suggestion for rehearing en banc denied, certiorari denied 127 S.Ct. 299, 549 U.S. 889,166 L.Ed.2d 154. Telecommunications 1017

Dismissal of wire and mail fraud indictment was not warranted, for government's alleged misrepresentation togrand jury that Rules of Professional Conduct, instead of Illinois Office of Banks and Real Estate (OBRE) rules,governed his handling of client funds, since OBRE Rules did not displace his obligations as attorney underRules of Professional Conduct, both sets of rules demanded that funds entrusted by client be maintained in sep-arate account, and probative value of evidence did not depend upon which rule defendant violated. U.S. v. Vin-cent, C.A.7 (Ill.) 2005, 416 F.3d 593, opinion after remand 152 Fed.Appx. 545, 2005 WL 2811809. IndictmentAnd Information 144.1(2)

Indictment, challenged for first time post-verdict, adequately alleged crime of wire fraud when it alleged that de-fendant, for purposes of executing scheme to defraud and obtaining money or property by means of false orfraudulent pretenses, transmitted “by means of wire communication in interstate commerce, writings, signs, sig-nals or sounds which transferred” money from account belonging to investment partnership to defendant's per-sonal bank account, and then listed 17 transfers and details of those transfers, notwithstanding contention that in-dictment failed to allege that subject transfers had “communicative aspect.” U.S. v. Bailey, C.A.10 (Kan.) 2003,327 F.3d 1131. Telecommunications 1017

Counts of indictment charging wire fraud, interstate transportation of money taken by fraud, mail fraud, andmoney laundering failed to allege essential element of those offenses, which required allegations of underlyingscheme, where counts originally incorporated by reference description of bank fraud scheme alleged in separateconspiracy count, and later redaction of indictment, based on dismissal of bank fraud allegations underlying con-spiracy, completely eliminated charged scheme. U.S. v. Adkinson, C.A.11 (Fla.) 1998, 135 F.3d 1363, appeal

18 U.S.C.A. § 1343


decided 158 F.3d 1147. Indictment And Information 159(2)

Mail fraud claim must allege existence of scheme or artifice to defraud or obtain money or property by false pre-tenses, representations, or promises, and use of United States mails for purpose of executing scheme; elementsof wire fraud are similar, but require that defendant use interstate wire, radio, or television communications infurtherance of scheme to defraud. Bacchus Industries, Inc. v. Arvin Industries, Inc., C.A.10 (N.M.) 1991, 939F.2d 887, rehearing denied. Postal Service 48(4.1); Telecommunications 1014(2)

Offense under wire fraud statute was properly stated, despite defendant's claim that superseding indictment, thatcharged that defendant devised scheme to defraud United States by impairing Treasury Department's lawfulfunction of collecting data and reports of certain currency transactions and data to determine income taxes, didnot allege deprivation of money or property but only alleged failure to provide information; jury instruction onwire fraud, including definition of “intent to defraud” as meaning acts were done to deceive the United Statesand to cause the loss “of information and tax revenues,” precluded conviction simply for failing to provide in-formation. U.S. v. Jones, C.A.7 (Ill.) 1991, 938 F.2d 737. Telecommunications 1017; Telecommunications

1021

Wire fraud indictment alleging that defendants caused telex to be transmitted in interstate commerce betweenGeneva, Switzerland, and Los Angeles, California, was not self-contradictory, where path of telex included in-terstate transmission from New York City to Los Angeles. U.S. v. Van Cauwenberghe, C.A.9 (Cal.) 1987, 827F.2d 424, certiorari denied 108 S.Ct. 773, 484 U.S. 1042, 98 L.Ed.2d 859. Telecommunications 1017

Indictment for wire fraud based on misrepresentation would not be found to be defective even if court wouldfind that giving of an NSF check to third party did not constitute a misrepresentation when indictment alleged inthe alternative that defendant engaged in a scheme to defraud, without reference to a misrepresentation; fact thatindictment listed scheme to defraud and scheme for obtaining money by false pretenses in the conjunctive didnot change the result. U.S. v. Clausen, C.A.8 (Minn.) 1986, 792 F.2d 102, certiorari denied 107 S.Ct. 202, 479U.S. 858, 93 L.Ed.2d 133. Telecommunications 1017

Indictment, charging defendant with wire fraud, was properly dismissed based on authority of ninth circuit pre-cedent at the time, after codefendants were acquitted of the same charges due to Government's lack of sufficientevidence, where trial proof against codefendants showed fraudulent scheme much narrower than the scheme in-dicted by the grand jury. U.S. v. Schwartz, C.A.9 (Cal.) 1986, 785 F.2d 673, certiorari denied 107 S.Ct. 290, 479U.S. 890, 93 L.Ed.2d 264, on remand 679 F.Supp. 972. Indictment And Information 144.1(3)

Indictment, alleging agreement among defendants to knowingly and willfully devise and intend to devisescheme to obtain money by means of false and fraudulent pretenses and, for purposes of executing scheme, toknowingly cause to be delivered by mail letters, policies, claims, proofs of losses, and other matters required inprocessing insurance claims, and, to further execute scheme, to transmit sounds in interstate commerce by meansof telephone, and setting out specifics as the overt act committed in furtherance of the conspiracy, sufficientlyset forth elements of conspiracy to commit mail fraud and wire fraud. U.S. v. Gordon, C.A.5 (Miss.) 1986, 780F.2d 1165. Conspiracy 43(9)

18 U.S.C.A. § 1343


In case which involved alleged payment of bribe to Puerto Rican official and in which defendants were chargedwith wire fraud, mail fraud, interstate travel in aid of racketeering and conspiracy, though language within in-dictment, which alleged that a corporate defendant “caused the deposit of an additional [sum] to the account of[certain entity] at [specified] Bank from which a bribe was to be paid to a Puerto Rican official” and within in-dictment, which alleged that a purpose of the scheme was to disguise and conceal the bribe fund to be paid tocertain person, was ambiguous, it did not deny reasonable notice to two corporate defendants. U. S. v. Steele,C.A.3 (N.J.) 1982, 685 F.2d 793, certiorari denied 103 S.Ct. 213, 459 U.S. 908, 74 L.Ed.2d 170. Conspiracy

43(1); Postal Service 48(4.2); Telecommunications 1017

Indictment amply detailed circumstances of alleged scheme by defendant and communication to provide defend-ant with sufficient notice of the offense charged, contrary to claim that indictment charging offense of using in-terstate telephone wires in connection with a fraudulent scheme failed to adequately particularize manner inwhich the telephone communication fit into the alleged fraudulent scheme. U. S. v. Wise, C.A.8 (Minn.) 1977,553 F.2d 1173. Telecommunications 1017

An indictment under this section must set out clearly what the artifice was wherein the fraud consisted, and howit was to be accomplished. U. S. v. Charnay, C.A.9 (Nev.) 1976, 537 F.2d 341, certiorari denied 97 S.Ct. 527,429 U.S. 1000, 50 L.Ed.2d 610, certiorari denied 97 S.Ct. 528, 429 U.S. 1000, 50 L.Ed.2d 610. Telecommunica-tions 1017

Where each count in prosecution for violating federal wire and mail fraud statutes clearly set forth acts involved,description of attendant scheme did not render counts duplicitous on theory that bankruptcy violations werecharged. U. S. v. Spencer, C.A.5 (Tex.) 1969, 412 F.2d 798, certiorari denied 90 S.Ct. 151, 396 U.S. 876, 24L.Ed.2d 136. Indictment And Information 125(3)

Where it appeared that main purpose of unlawful association between defendant and codefendant charged withseveral counts of wire fraud had been accomplished at least two months before acts and statements embraced inseveral counts in which codefendant alone participated occurred, such acts were not binding on defendant, andhe could not be convicted on basis of such acts of codefendant. Battaglia v. U. S., C.A.9 (Cal.) 1965, 349 F.2d556, certiorari denied 86 S.Ct. 430, 382 U.S. 955, 15 L.Ed.2d 360, rehearing denied 86 S.Ct. 613, 382 U.S.1021, 15 L.Ed.2d 537. Telecommunications 1014(11)

Indictment alleging in first count that defendant sent a telegram to performer advising him that bookings hadbeen made at certain places in Texas, and alleging in second count that performer by telegraphic transfer sentdefendant $60 as advance on commission for those bookings, and alleging in third count that defendant sent per-former a telegram stating that his show had been booked at places in Louisiana, and alleging in fourth count thatperformer transferred $120 by wire to defendant alleged four separate offenses under this section. Sibley v. U.S., C.A.5 (La.) 1965, 344 F.2d 103, certiorari denied 86 S.Ct. 405, 382 U.S. 945, 15 L.Ed.2d 354. Telecommu-nications 1017

Indictment alleging plan whereby defendants lured party into Mexico and partly by use of telephone persuadedparty's father to pay money to procure party's release from arrest was sufficient to allege violations of this sec-

18 U.S.C.A. § 1343


tion and of conspiracy to do so. Huff v. U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certiorari denied 83 S.Ct. 289,371 U.S. 922, 9 L.Ed.2d 230. Conspiracy 43(6); Telecommunications 1017

Count charging defendants with mailing materials in connection with securities fraud scheme was not duplicit-ous as to count charging wire fraud in connection with earlier transaction in scheme. U. S. v. Crosby, C.A.2(N.Y.) 1961, 294 F.2d 928, certiorari denied 82 S.Ct. 599, 368 U.S. 984, 7 L.Ed.2d 523, rehearing denied 82S.Ct. 1138, 369 U.S. 881, 8 L.Ed.2d 285. Indictment And Information 125(3)

Indictment charging devising scheme to defraud and using interstate telephone and telegraph facilities for pur-pose of executing scheme reciting representations made by defendant and averring that they were known by himto be false, was sufficient without continuing to recite the opposite of such representations. U.S. v. Bagdasian,C.A.4 (Md.) 1961, 291 F.2d 163, certiorari denied 82 S.Ct. 60, 368 U.S. 834, 7 L.Ed.2d 36. Telecommunications

1017

Indictment which alleged that defendants, pursuant to scheme to defraud a certain landscape gardener by falselyrepresenting that defendants owned and could sell certain grass sod, communicated by telephone with victim,was not unconstitutional as failing to charge the scheme with such particularity as was essential to acquaint ac-cused with reasonable certainty of nature of accusation. Roberts v. U. S., C.A.6 (Ky.) 1955, 226 F.2d 464, certi-orari denied 76 S.Ct. 307, 350 U.S. 935, 100 L.Ed. 817. Constitutional Law 4581; Indictment And Inform-ation 56

The indictment charging the defendants with mail fraud, wire fraud, and conspiracy to commit mail and wirefraud was sufficient on its face; the indictment alleged that the defendants made material misrepresentations aspart of a scheme to defraud life insurance providers, describing at length why the lies mattered to the providers'economic decision making, and explained how those misrepresentations actually caused the providers economicharm, and it alleged that the defendants' misrepresentations caused a discrepancy between the benefits reason-ably anticipated by the providers and the actual benefits received, and then spelled out four different ways inwhich the lies that the defendants told, caused to be told, and schemed to tell affected the providers' bottom line.U.S. v. Binday, S.D.N.Y.2012, 908 F.Supp.2d 485. Conspiracy 43(9); Postal Service 48(4.4); Tele-communications 1017

Evidence, in prosecution for, inter alia, conspiracy to commit securities fraud, that cooperating co-conspiratorhad been involved in a scheme to defraud brokerage houses prior to meeting defendant, did not constitute a con-structive amendment of the indictment, since there was no substantial likelihood that defendant was convicted ofan offense other than those charged in the indictment; there was never any allegation that defendant was en-gaged in the co-conspirator's prior fraudulent activities. U.S. v. Abdallah, E.D.N.Y.2012, 840 F.Supp.2d 584, af-firmed 2013 WL 3198163. Indictment and Information 159(2)

Indictment alleging state senator used senate staff for personal and political work during regular business hours,overpaid employees who did both official and personal tasks, and gave senate property to non-employees, suffi-ciently alleged that senator took part in scheme to deprive state senate of money or property in violation of fed-eral mail and wire fraud statutes. U.S. v. Fumo, E.D.Pa.2007, 628 F.Supp.2d 573. Postal Service 48(4.2);

18 U.S.C.A. § 1343


Telecommunications 1017

Indictment's allegations that lobbyist knowingly agreed with other lobbyists to pay illegal gratuities and to com-mit honest services fraud in order to reward public officials for past or future official acts and to conceal thoseacts from the public were sufficient to charge lobbyist with conspiracy to pay illegal gratuities and to commithonest services wire fraud, even though government did not specify which public officials were co-conspirators.U.S. v. Ring, D.D.C.2009, 628 F.Supp.2d 195. Conspiracy 43(10); Telecommunications 1017

To obtain conviction for conspiracy to make false statements to financial institutions to obtain mortgage loans,government neither alleged nor was required to prove that every lender defrauded by defendant was insured byFederal Deposit Insurance Corporation (FDIC). Brodie v. U.S., D.D.C.2009, 626 F.Supp.2d 120. Conspiracy

32

Escape and wire fraud charges were not improperly multiplicitous, notwithstanding that wire fraud charge re-lated to use of cellular telephone during escape attempt, since each crime requires proof of facts that the otherdid not implicate, namely escape required that defendant attempted to abscond from custody while wire fraudnecessitated use of a communications device. U.S. v. Avila, M.D.Pa.2009, 610 F.Supp.2d 391. Indictment AndInformation 129(1)

Wire fraud counts and securities fraud counts alleged against defendant contained element that was not con-tained in the other, and thus wire fraud counts and securities fraud counts were not multiplicitous and indictmentdid not violate Double Jeopardy clause of Fifth Amendment; securities fraud counts required showing of fraudin connection with purchase or sale of any security, an element not required to prove wire fraud, and wire fraudcounts required showing of use of interstate wires, an element not required to prove securities fraud. U.S. v. Re-gensberg, S.D.N.Y.2009, 604 F.Supp.2d 625. Double Jeopardy 139.1; Indictment And Information130

Defense Federal Acquisition Regulation Supplement (DFARS) rule prohibiting procurement contractors fromdelivering munitions to Department of Defense that were acquired from a Communist Chinese military companyprovided notice of prohibited conduct to person of common intelligence in comportment with due process andwas not for that reason unconstitutionally vague as would warrant dismissal of indictment charging corporateprocurement contractor and its employees with conspiracy to make false statements and commit fraud in connec-tion with corporation's delivery of allegedly prohibited munitions purportedly purchased from Albania which inturn had received munitions from China before effective date of prohibition; rule's language prohibiting deliveryof prohibited munitions directly or indirectly under procurement contract or subcontract at any tier clearly indic-ated that the delivery of munitions procured through an intermediary country that had in turn obtained the muni-tions from Communist Chinese military decades earlier was prohibited. U.S. v. AEY, Inc., S.D.Fla.2009, 603F.Supp.2d 1363. Constitutional Law 4509(1); War And National Emergency 1338

Indictment charging defendant with honest services wire fraud sufficiently pleaded element of scienter to satisfydefendant's Fifth Amendment right to be indicted by grand jury and Sixth Amendment right to be informed ofnature and cause of accusation; although indictment did not use words “knowingly” or “willfully,” it followed

18 U.S.C.A. § 1343


language of wire fraud statute by charging that defendant devised and intended to devise scheme and artifice todefraud and deprive Commonwealth of Puerto Rico and its citizens of their intangible right to his honest ser-vices as Legislator, and it also alleged that defendant acted for purpose of executing and attempting to executescheme and artifice to defraud and deprive Commonwealth and its citizens of their intangible right to his honestservices. U.S. v. De Castro-Font, D.Puerto Rico 2008, 587 F.Supp.2d 372, reconsideration denied. IndictmentAnd Information 71.4(4)

Counts of indictment alleging that sitting member of United States House of Representatives transmitted orcaused to be transmitted specific wire communications in furtherance of scheme to deprive others of his honestservices by soliciting or receiving bribes were sufficient to allege violations of honest services wire fraud statutepredicated on bribery. U.S. v. Jefferson, E.D.Va.2008, 562 F.Supp.2d 719. Telecommunications 1017

Reference to the “investing public,” in the superseding indictment in mail fraud prosecution, did not rise to thelevel of an impermissible amendment of the superseding indictment; defendants were not prejudiced in any wayby the reference. U.S. v. Wittig, D.Kan.2006, 425 F.Supp.2d 1196, reversed 472 F.3d 1247, on remand 247F.R.D. 661. Indictment And Information 159(2)

Indictment of energy corporation and employees, stemming from alleged creation of false electricity supplyshortage, properly alleged charge under federal wire fraud statute; charge averred that defendants engaged inphysical and economic withholding of electricity from California spot markets, by declining to submit supplybids and by submitting false and misleading supply bids at prices designed to ensure that bids were not accepted.U.S. v. Reliant Energy Services, Inc., N.D.Cal.2006, 420 F.Supp.2d 1043. Electricity 21; Telecommunica-tions 1017

Indictment failed to support government's claim that defendant committed bank fraud, on allegations that de-fendant falsely told stock transfer agent that he lost stock certificate, which had been part of negotiated resolu-tion of defaulted loans owed to Federal Deposit Insurance Corporation (FDIC), and, consequently, cancellationof those certificates rendered them valueless; it was impossible to “cancel” and render certificates “valueless”vis-a-vis interests of FDIC due to protections afforded FDIC under Uniform Commercial Code (UCC), and in-dictment otherwise did not allege that FDIC was deprived of “property right” in the stock or that governmentwould have sustained litigation expenses on its claim to the stock. U.S. v. Autorino, D.Conn.2003, 307F.Supp.2d 370, vacated 381 F.3d 48. Banks And Banking 509.25

Indictment adequately alleged requirement for wire fraud, that defendant who was securities brokerage employ-ee and co-conspirator who was bank employee deprived bank's depositors of intangible right to honest service,by appropriating funds in depositors accounts, investing funds for their own benefit, and restoring funds to ac-counts. U.S. v. Villanueva Madrid, S.D.N.Y.2003, 302 F.Supp.2d 187. Telecommunications 362

Indictment was sufficient to apprise defendants of multiple counts of wire fraud charged against them, where in-dictment described single scheme to defraud corporation's investors and creditors, and listed wire transferswhich furthered scheme by concealing extent of corporation's financial difficulties. U.S. v. Rigas,S.D.N.Y.2003, 281 F.Supp.2d 660. Telecommunications 1017

18 U.S.C.A. § 1343


Mail and wire fraud element of deceit was sufficiently stated by allegations that poultry producer's lobbyist andvice president engaged in subterfuge with respect to Secretary of Agriculture's travel to Arkansas for companybirthday party and that they made materially false statements to law enforcement officials about their gifts toSecretary. U.S. v. Williams, D.D.C.1998, 7 F.Supp.2d 40, vacated in part 240 F.3d 35, 345 U.S.App.D.C. 111.Postal Service 48(4.4); Telecommunications 1017

Indictment alleging that former officers and directors of company breached fiduciary duties to company by en-gaging in undisclosed self-dealing transactions with company which enabled them to profit at company's ex-pense was sufficient to support mail and wire fraud charges; indictment also alleged that defendants' profit wasaccomplished by affirmative misrepresentations, including affirmative disclaimers of any conflict of interest,and active concealment of self-dealing nature of transactions. U.S. v. Skeddle, N.D.Ohio 1997, 989 F.Supp. 873.Postal Service 48(4.2); Telecommunications 1017

Indictment alleging that Secretary of Agriculture solicited and received illegal gratuities, intentionally violatedcriminal gratuities statute, and later committed acts to conceal this illegal activity stated offense for “honest ser-vices” fraud under wire fraud statute. U.S. v. Espy, D.D.C.1997, 989 F.Supp. 17, affirmed in part , reversed inpart 145 F.3d 1369, 330 U.S.App.D.C. 299, on remand 23 F.Supp.2d 1. Telecommunications 1014(10)

Indictment sufficiently alleged wire fraud in connection with scheme to make illegal campaign contribution, bystating that there had been wire and phone contacts between provider of funds and facilitator of scheme, eventhough defendant claimed that calls had not furthered execution of any such scheme; nature of crime chargedhad been sufficiently alleged, for indictment purposes of informing defendant of charge against him and of al-lowing for determination of whether double jeopardy had attached, and linkage of indictment allegations withwrongful conduct charged could be left for later in trial process. U.S. v. Sun-Diamond Growers of California,D.D.C.1996, 941 F.Supp. 1262, reversed 138 F.3d 961, 329 U.S.App.D.C. 149, rehearing denied , certiorarigranted in part 119 S.Ct. 402, 525 U.S. 961, 142 L.Ed.2d 326, certiorari denied 119 S.Ct. 409, 525 U.S. 964, 142L.Ed.2d 332, affirmed 119 S.Ct. 1402, 526 U.S. 398, 143 L.Ed.2d 576. Telecommunications 1017

Indictment sufficiently charged conspiracy to commit wire fraud, where indictment clearly identified that de-fendants were charged with that offense, tracked language of wire fraud statute, stated approximate time andplace of alleged crime, and provided specific facts regarding alleged conspiracy, including eight overt acts thatallegedly were committed by defendants and their coconspirators in furtherance of conspiracy. U.S. v. Ashley,E.D.N.Y.1995, 905 F.Supp. 1146. Conspiracy 43(9)

Wire fraud counts against bank's president and sales manager sufficiently charged them with both scheme to de-fraud Federal Home Loan Mortgage Corporation (Freddie Mac) and scheme to obtain money from Freddie Macby false or fraudulent pretenses, representations or promises, where counts not only tracked language of statuteand stated time and place of alleged crimes, but also provided facts and circumstances as would inform them ofspecific offenses coming under general description with which they were charged. U.S. v. Ashley,E.D.N.Y.1995, 905 F.Supp. 1146. Telecommunications 1017

Wire fraud indictment properly charged all elements of wire fraud, where indictment set out language of federal

18 U.S.C.A. § 1343


wire fraud statute and provided time and place of each of nine counts, and was charged with scheme to defraudseveral parties of money by shifting trading losses to them. U.S. v. Teyibo, S.D.N.Y.1995, 877 F.Supp. 846, af-firmed 101 F.3d 681. Indictment And Information 110(49)

Indictment alleging violation of wire fraud statute in connection with alleged falsification of airplane mainten-ance records did not violate rule requiring that indictments contain statement of essential facts constituting anoffense charged, even though it did not contain a list of particular computer transactions, telephone calls, and ra-dio transmissions, where indictment tracked language of statute and also specified dates on which the activitiestook place, purpose and nature of the scheme, means by which objectives of scheme were carried out, and natureof the communications used. U.S. v. Upton, E.D.N.Y.1994, 856 F.Supp. 727. Telecommunications 1017

Counts of indictment charging defendant with causing money transfers from accounts of bank consortium toSwiss accounts of defendant's wholly owned company, and alleging that monies were the “proceeds” of fraudu-lent credit agreement, were sufficient to charge defendant with violating the wire fraud statute, notwithstandingdefendant's contention that putting future loan repayment at risk or in jeopardy was not allegation of a scheme todefraud consortium of its property rights; defendant was not charged with depriving lending banks of some in-tangible right, but with devising fraudulent scheme to separate banks from quintessential form of tangible prop-erty, their money, and causing wire communications to be transmitted in furtherance of the scheme. U.S. v. Har-ris, S.D.N.Y.1992, 805 F.Supp. 166. Telecommunications 1017

Indictment count was sufficient to state claim under mail or wire fraud statutes against commodities trader, al-though trader contended it overstated any legal obligation he had toward any customers given that traders havefiduciary duty to customers and owes customers loyalty. U.S. v. Dempsey, N.D.Ill.1990, 768 F.Supp. 1256.Postal Service 48(4.1); Telecommunications 1017

To allege violation of mail and wire fraud statutes, plaintiff must show scheme to defraud, use of either U.S.mails or interstate wires in furtherance of fraud, and specific intent to defraud. Comwest, Inc. v. American Oper-ator Services, Inc., C.D.Cal.1991, 765 F.Supp. 1467. Postal Service 48(4.1); Telecommunications1014(2)

Superseding wire fraud indictment sufficiently alleged scheme to defraud individuals and corporations out ofproprietary information stored on computers, and wire communications alleged in counts of indictment, in-volving exchange of electronic mail discussing implementation of scheme, wire transfers of separate issues ofcomputer hacker newsletter, and publication of tutorials on computer hacking, were clearly in furtherance of al-leged scheme. U.S. v. Riggs, N.D.Ill.1990, 743 F.Supp. 556. Telecommunications 1017

Indictment's allegations regarding scheme to defraud telephone company by stealing proprietary informationfrom “911” computer text file sufficiently set forth existence of scheme to defraud as well as participation in thatscheme by defendant who ultimately published edited edition of file in computer newsletter; although defendantclaimed that indictment merely alleged that he received and then transferred file, it in fact alleged that codefend-ant used fraudulent means to access company's computer system and disguised his unauthorized entry, and thatdefendant edited text file to conceal its source, transmitted file to codefendant for review, and ultimately pub-

18 U.S.C.A. § 1343


lished file for others' use; moreover, defendant and codefendant were alleged to have used coded language, codenames, and other deceptive means to avoid detection. U.S. v. Riggs, N.D.Ill.1990, 739 F.Supp. 414. Telecom-munications 1017

Indictment charging defendant with wire fraud sufficiently alleged that defendant defrauded law firm at whichhe was a partner and its clients of confidential client information by alleging that defendant purchased stock onbasis of nonpublic information learned during course of confidential conversations. U.S. v. Elliott, N.D.Ill.1989,711 F.Supp. 425. Telecommunications 1021

Indictment containing allegation that intended loan to defendant was to violate bank's lending policies ad-equately alleged mail fraud, although defendant claimed indictment was insufficient because it omitted allega-tions that any loan was made to defendant, any intended loan would be in violation of bank's policies or prudentbanking practices, codefendant knew repurchase of his investment was for inflated price, codefendant and de-fendant agreed that codefendant would get defendant loan in return for repurchase, and repurchase was con-cealed from bank. U.S. v. Lytle, N.D.Ill.1988, 677 F.Supp. 1370. Postal Service 48(4.2)

Fact that long-distance telephone calls, allegedly demonstrating bribe to arrange for dismissal of client's car theftcharges, were not made by second of his two attorneys did not render improper federal indictment charging bothattorneys and their client with conspiring to bribe police officer to arrange for dismissal of criminal charges,since second attorney's criminal liability could be based on acts of others with whom he was connected. U.S. v.Gervasi, N.D.Ill.1983, 562 F.Supp. 632. Conspiracy 41

Counts of indictment charging defendant with wire fraud would not be dismissed upon defendant's contentionthat government failed to call before grand jury the sole victim named in those counts and that victim wouldhave testified that he was not defrauded by defendant, even assuming that victim would have testified as stated,since indictment was not subject to review for sufficiency of evidence, and since government was not compelledto rely on testimony of victim to establish its case for grand jury. U. S. v. Chovanec, S.D.N.Y.1979, 467 F.Supp.41. Indictment And Information 10.2(8)

Count charging that defendant in executing scheme to defraud transmitted, in interstate commerce, by means ofwire and radio communications a long distance telephone call from named city in one state to named city in an-other state was not defective for failure to set out, in haec verba, the telephone conversation itself. U. S. v. Gar-land, N.D.Ill.1971, 337 F.Supp. 1. Telecommunications 1017; Telecommunications 1170

Where essence of charges of wire fraud was devising of scheme or artifice to defraud pension fund whereby de-fendant was allegedly to receive money secretly while purporting to give his best judgment to pension fundwithout any consideration in mind other than best interests of the fund, it was not necessary to charge that al-leged kickback money obtained by defendant actually came from victim or from proceeds of the loan involvedand it was enough that defendant agreed to use his fiduciary position to favor loan in return for cash paymentthat would not be disclosed to the fund. U. S. v. Dorfman, S.D.N.Y.1971, 335 F.Supp. 675. Telecommunications

1014(8); Telecommunications 1017

18 U.S.C.A. § 1343


Indictment charging defendants with having devised scheme to defraud applicants for mortgage loans by meansof shell corporation which was falsely represented to victims as having large amounts of money available forsuch loans was sufficient and was not subject to dismissal on basis that it was vague. U. S. v. Crisona,S.D.N.Y.1967, 271 F.Supp. 150. Indictment And Information 71.4(4)

Indictment alleging scheme to defraud in which defendants used services of one defendant, telephone companyemployee, to place long distance calls without charge, charged scheme including use of wires, within this sec-tion prohibiting scheme to defraud by transmission of message for purpose of executing scheme, rather thanmerely charging fraudulent use of wires. U. S. v. Beckley, N.D.Ga.1965, 259 F.Supp. 567. Telecommunications

1017

Indictment alleging violation of section 1341 of this title and this section and conspiracy to violate such provi-sions set forth sufficient facts to describe alleged scheme and properly alleged that defendants intended to devisesuch for purpose of defrauding alleged victims who were sufficiently identified. U. S. v. Hoffa, S.D.Fla.1962,205 F.Supp. 710, certiorari denied 83 S.Ct. 188, 371 U.S. 892, 9 L.Ed.2d 125. Conspiracy 43(9); PostalService 48(4.1); Telecommunications 1017

In federal prosecution for scheme to defraud by use of telephone and telegraph communications wherein indict-ment alleged that scheme was to defraud three parties, defendant was not entitled to compel government to electto stand upon its ability to prove either that scheme was to defraud one party or that scheme was to defraud addi-tional two parties. U S v. Fassoulis, S.D.N.Y.1959, 179 F.Supp. 645. Indictment And Information 132(1)

Indictment charging the transmitting of sound by means of interstate wires for purpose of executing a scheme todefraud was defective for failure to set out particulars as to the scheme to defraud. U. S. v. Mercer,N.D.Cal.1955, 133 F.Supp. 288. Telecommunications 1017

Public official's alleged intentional violation of duty to disclose under Delaware law provided requisite deceit,for purpose of indictment charging official with honest services fraud as part of wire fraud and mail fraudcharges under federal law. U.S. v. Gordon, C.A.3 (Del.) 2006, 183 Fed.Appx. 202, 2006 WL 1558952, Unrepor-ted. Postal Service 35(9); Telecommunications 1014(10)

Superseding indictment against defendants for securities and wire fraud was not duplicitous, on basis that con-spiracy was one conspiracy, even though it alleged conspiracy to commit various crimes, some with regard tosecurities for one corporation, some with regard to securities for another corporation. U.S. v. Principato,S.D.N.Y.2002, 2002 WL 31319931, Unreported.

159. ---- Surplusage, indictment or information, practice and procedure

Wire fraud indictment based on proposed bid-rigging plan properly charged defendants with intending to de-fraud victim of money or property, as allegation that victim was actually deprived of money and property wasnot necessary. U.S. v. Ames Sintering Co., C.A.6 (Mich.) 1990, 927 F.2d 232. Telecommunications1014(7)

18 U.S.C.A. § 1343


Motion of defendant in prosecution for conspiracy of violate mail and wire fraud statutes and for scheme to de-fraud by use of the mails, to strike certain language from indictment as surplusage would be denied where in-cluded matter might be relevant to conspiracy charge and its inclusion was neither prejudicial nor inflammatory.U. S. v. Pilnick, S.D.N.Y.1967, 267 F.Supp. 791. Indictment And Information 137(1)

Allegations in indictment charging defendant with mail fraud and wire fraud that defendant illegally divertedfunds was not surplusage likely to be prejudicial or misleading at trial, as would warrant striking those allega-tions from indictment, where illegal diversion of funds was one of the charges against defendant. U.S. v. Earls,S.D.N.Y.2004, 2004 WL 350725, Unreported. Indictment And Information 119

160. ---- Variance, indictment or information, practice and procedure

Discrepancy between indictment and evidence presented at trial, in that particular transmission had been madevia fax rather than email, constituted variance, rather than constructive amendment, to which defendant did notsuffer any prejudice, since elements of wire fraud had not been affected. U.S. v. Andrews, C.A.3 (Virgin Is-lands) 2012, 681 F.3d 509. Telecommunications 1017

Variance between indictment, which pinpointed a particular step in payment process, and proof at trial, whichestablished another, was harmless in wire fraud prosecution; the defendant had notice by the description of thescheme in the indictment to prepare its defense, the prosecution disclosed exhibits to the defendant before trial,and, the jury was instructed that to convict it had to reach a unanimous verdict and find each element of wirefraud, including the existence of a charged wire transfer, beyond a reasonable doubt. U.S. v. Ratliff-White,C.A.7 (Ill.) 2007, 493 F.3d 812, certiorari denied 128 S.Ct. 1070, 552 U.S. 1141, 169 L.Ed.2d 808. CriminalLaw 1167(1); Telecommunications 1017

Variance between wire transfer described in indictment charging defendant with wire fraud and proof of differ-ent wire transfer did not prejudice defendant, and thus did not constitute an impermissible variance; indictmentalleged an elaborate scheme that commenced near certain year and continued until certain year, description ofscheme put defendants on notice that prosecution intended to prove that defendants conspired to fraudulently in-duce investors to transfer money by wire during certain period, prosecution produced evidence demonstratingthat defendants caused victims to wire money in furtherance of fraud, and defendants had notice of prosecutors'exhibits and witnesses in advance of trial. U.S. v. Dupre, C.A.2 (N.Y.) 2006, 462 F.3d 131, certiorari denied 127S.Ct. 1026, 549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S. 1151, 166 L.Ed.2d 773,habeas corpus denied 2012 WL 2953970. Telecommunications 1017

Dismissal of wire and mail fraud indictment was not warranted, for government's alleged misrepresentation togrand jury that funds had not been recovered when there had been partial recovery in bankruptcy, since victim'spartial recovery had little to no relevance to mail or wire fraud charges, government was not obligated to provethat victim lost all, or even portion, of entrusted money, recovery of funds was not defense to either charge, andrecovery did not advance theory that defendant made honest mistake. U.S. v. Vincent, C.A.7 (Ill.) 2005, 416F.3d 593, opinion after remand 152 Fed.Appx. 545, 2005 WL 2811809. Indictment And Information144.1(2)

18 U.S.C.A. § 1343


District court's failure to grant judgment of acquittal on counts of wire fraud affecting financial institution onground that government's evidence showed only intent to defraud mortgage broker, not lenders, as described inindictment, was not plain error; broker acted as private mortgage lender for a short time in deals in question, andseveral parts of indictment referred specifically to broker and its role. U.S. v. Berkley, C.A.7 (Ill.) 2003, 333F.3d 776, amended on denial of rehearing. Criminal Law 1044.1(7)

No prejudicial variance existed between wire fraud charge set forth in indictment and proof at trial, despite con-tention that indictment charged scheme involving fraudulent promise not to invest partnership money in high-risk investments and unauthorized transfer of partnership funds to defendant's personal accounts to accomplishthose investments, while government introduced evidence of false quarterly reports to partners, inasmuch asgovernment established that defendant's scheme to defraud consisted of defrauding his partners by using their in-vestment funds without their knowledge to make personal trades in types of investments specifically prohibitedby partners, and showed, as a part of such scheme, that defendant misrepresented to partners status of their ac-counts with partnership. U.S. v. Bailey, C.A.10 (Kan.) 2003, 327 F.3d 1131. Telecommunications 1016

Divergence between alleged misrepresentation of wire fraud defendant that was specified in indictment, namely,that defendant misrepresented fact that computer servers sold by defendant's company had been upgraded, andmisrepresentation shown at trial as to how servers had been upgraded amounted to fatal variance, though notconstructive amendment; variance affected substantial rights of defendant because indictment affirmativelymisled defendant and obstructed his defense at trial, and government asserted at pretrial hearing that misrepres-entation in indictment was the only misrepresentation at issue. U.S. v. Adamson, C.A.9 (Cal.) 2002, 291 F.3d606. Telecommunications 1016

Indictment charging defendants with wire fraud by executing scheme to issue fake certificates of deposit in re-turn for purchase money was constitutionally defective in that it failed to state with reasonable specificity factsmaking up essential elements of crime that Government would seek to prove at trial; scheme proven at trial in-volved giving victim two-million dollar letter of credit in return for eighteen-million Venezuelan bolivars, anddid not involve purchase of certificates of deposit. U.S. v. Santa-Manzano, C.A.1 (Puerto Rico) 1988, 842 F.2d 1. Telecommunications 1017

Variance between indictment charging conspiracy to commit bribery and fraud and proof at trial, which only es-tablished conspiracy to commit bribery, was not prejudicial so as to warrant reversal, because conspiracy tocommit single criminal offense was all that was required to prove violation of federal conspiracy statute. U.S. v.Bruno, C.A.5 (La.) 1987, 809 F.2d 1097, certiorari denied 107 S.Ct. 2198, 481 U.S. 1057, 95 L.Ed.2d 853.Criminal Law 1167(1)

Fact that indictment set forth two specific representations defendant allegedly made in furtherance of wire fraudscheme, whereas prosecution offered evidence of and district court's instructions allowed jury to consider othermisrepresentations allegedly made by defendant, did not result in fatal variance between indictment and proof attrial, in that indictment charged defendant with using wire communications in furtherance of scheme to defraudand to obtain money by false pretenses on nine separate occasions, and such evidence was produced at trial. U.S.v. Begnaud, C.A.8 (Mo.) 1986, 783 F.2d 144. Telecommunications 1017

18 U.S.C.A. § 1343


Variance between indictment charging defendant with a single overall scheme in which he and another allegedlyconspired to defraud his employer and evidence at trial showing multiple schemes and demonstrating thatscheme underlying defendant's conviction did not involve anyone else did not warrant reversal of conviction ofwire-fraud in view of trial court's careful instruction to jury to disregard all evidence pertaining to dismissedcounts in which defendant and another were alleged to have been parties to single conspiracy and detailed evid-ence to be disregarded. U.S. v. Gaultier, C.A.8 (Mo.) 1984, 727 F.2d 711. Criminal Law 1167(1)

There was no fatal variance between evidence of defendant's involvement in a conspiracy to defraud and indict-ment which charged a scheme involving three persons to defraud another. U. S. v. Snyder, C.A.5 (Ala.) 1974,505 F.2d 595, certiorari denied 95 S.Ct. 1433, 420 U.S. 993, 43 L.Ed.2d 676. Telecommunications 1016

Where defendants in trial for mail and wire fraud had possession of checks described in indictment, variancebetween indictment and proof as to route checks had taken in traveling from city in which they were issued tocity in which bank on which they were drawn was located was not prejudicial. U. S. v. Gross, C.A.8 (Iowa)1969, 416 F.2d 1205, certiorari denied 90 S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Criminal Law1167(1)

That indictment charged three defendants with entering into scheme to defraud on certain date but evidence pro-duced at trial showed that two of defendants did not even meet third defendant until six months later was notfatal variance where scheme to defraud proved at trial fell within period charged. U. S. v. Houlihan, C.A.2(N.Y.) 1964, 332 F.2d 8, certiorari denied 85 S.Ct. 115, 379 U.S. 859, 13 L.Ed.2d 61, certiorari denied 85 S.Ct.56, 379 U.S. 828, 13 L.Ed.2d 37. Postal Service 48(8); Telecommunications 1016

Evidence, in prosecution for, inter alia, conspiracy to commit securities fraud, that cooperating co-conspiratorhad been involved in a scheme to defraud brokerage houses prior to meeting defendant, did not amount to a pre-judicial variance from the indictment, since the evidence offered at trial did not prove facts materially differentfrom those alleged in the indictment; there was never any allegation that defendant was involved in the co-conspirator's prior fraudulent activities. U.S. v. Abdallah, E.D.N.Y.2012, 840 F.Supp.2d 584, affirmed 2013 WL3198163. Conspiracy 43(12)

Superseding indictment charging corporate procurement contractor and its employees with conspiracy to makefalse statements and commit fraud in connection with corporation's delivery to Army of allegedly prohibited mu-nitions was not defective for alleging that munitions were manufactured and originated in China, rather than pro-cured from a Chinese military company; indictment alleged that procurement contract was subject to DefenseFederal Acquisition Regulation Supplement (DFARS) rule which prohibited delivery of ammunition acquireddirectly or indirectly from a Communist Chinese military company and this allegation was expressly incorpor-ated into all counts of indictment, and the fact that indictment phrased some allegations of defendants' misrep-resentations in terms of munitions manufactured and originated in China instead of munitions from CommunistChinese military companies, especially when viewed in context of totality of allegations, was not a validgrounds for dismissal. U.S. v. AEY, Inc., S.D.Fla.2009, 603 F.Supp.2d 1363. Conspiracy 43(10); Fraud

69(2)

18 U.S.C.A. § 1343


Government's use of evidence related to 32 properties not mentioned in defendants' indictment for wire fraud,mail fraud, and witness tampering, in relation to a scheme to arrange fraudulent home mortgages, did not expandindictment to allow jury to convict defendants of violations not contained therein; government proposed to usemail and wire transactions associated with additional properties as substantive evidence of existence of thescheme alleged in the indictment, not as additional instances of defendants' use of the mails or wires, and anyjury confusion could be addressed through limiting jury instructions. U.S. v. Weiss, D.Colo.2007, 469 F.Supp.2d941. Indictment And Information 159(2)

Variances between conduct charged in wire fraud indictment, that defendant solicited and received payment foraircrafts and subsequently failed to deliver or refund money, and proof at trial were harmless and thus defendantconvicted of wire fraud was not entitled to acquittal; although indictment alleged that defendant claimed to ownaircrafts and that agreements were with individuals, not agreements with corporations represented by individu-als, charged offense did not require an identified victim as an element. U.S. v. Pritchard, C.A.10 (Colo.) 2004,86 Fed.Appx. 387, 2004 WL 103556, Unreported, appeal from denial of post-conviction relief dismissed 191Fed.Appx. 705, 2006 WL 2277958. Criminal Law 1167(1)

161. Bill of particulars, practice and procedure

In prosecution for wire fraud, variance from bill of particulars, in that bill indicated it would be shown that per-son who transmitted stock certificates to bank was person other than a defendant and government introduced nodirect proof on issue, leaving only inference that defendant had caused stock certificates to be transmitted tobank, was not shown to be prejudicial, in absence of defendant's showing how his questioning in cross-examination of prosecution witnesses would have varied had he attempted to refute such inference. U. S. v.Birrell, C.A.2 (N.Y.) 1971, 447 F.2d 1168, certiorari denied 92 S.Ct. 675, 404 U.S. 1025, 30 L.Ed.2d 675. Crim-inal Law 1167(1)

Trial court did not abuse discretion in overruling defendants' motion for bill of particulars where indictmentcharging defendants with violation of this section and with conspiracy to do so offered sufficient particularity toenable defendants to prepare for defense and to protect them from second prosecution for same offense. Huff v.U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certiorari denied 83 S.Ct. 289, 371 U.S. 922, 9 L.Ed.2d 230. IndictmentAnd Information 121.2(9)

Government made sufficient disclosures concerning its evidence of defendant's alleged wire fraud and its wit-nesses, by means other than the indictment, and thus defendant was not entitled to a bill of particulars in ad-vance of trial; government provided complaint and warrant supporting defendant's arrest that detailed phone andchecking account records, and specified the duration and scope of defendant's scheme, and it also provided over7,000 pages of discovery, and defendant failed to state how or why he needed additional particulars to preparefor trial. U.S. v. Morante, E.D.N.Y.2013, 2013 WL 2372298. Indictment and Information 121.2(9)

Mine operator and employees indicted in connection with alleged release of asbestos-contaminated vermiculitewere not entitled to bill of particulars seeking disclosure of government's theory regarding how documents trans-mitted by wire related to alleged wire fraud schemes; government properly alleged existence of scheme or arti-fice to defraud government as to Clean Air Act (CAA) compliance and wire transmission of letter of intent in

18 U.S.C.A. § 1343


furtherance of scheme. U.S. v. Grace, D.Mont.2005, 401 F.Supp.2d 1103. Indictment And Information121.2(9)

In prosecution for wire fraud and racketeering, defendant's request for order directing government to provide abill of particulars would be granted to extent that government would be required to furnish names of those cos-chemers known to them and who they would claim participated in alleged scheme with defendant, but would beotherwise denied as seeking government's evidence in advance of trial, as seeking identity of prospective gov-ernment witnesses, as potentially restricting government unduly in presenting its proof at trial, and as seeking in-formation self-evident from indictment. U. S. v. Chovanec, S.D.N.Y.1979, 467 F.Supp. 41. Indictment And In-formation 121.2(9)

The use of telephonic communication was a jurisdictional element in wire fraud counts, and defendant chargedwith wire fraud was entitled to information on manner and means by which defendant caused to be transmittedin interstate commerce communication by wire set forth in the wire fraud counts. U. S. v. Dorfman,S.D.N.Y.1971, 335 F.Supp. 675. Indictment And Information 121.2(9)

Where it was charged that defendants in furtherance of scheme to defraud made interstate phone calls, sent let-ters and telegrams and caused individuals and sums to be transported in interstate commerce defendant was en-titled to bill of particulars including names of persons to whom false representations had been made, identity ofpersons to whom calls were made or telegrams or letters sent, identity of individuals claimed to have transportedor converted or fraudulently obtained money in interstate commerce, and the means of transportation employed.U. S. v. Crisona, S.D.N.Y.1967, 271 F.Supp. 150. Indictment And Information 121.2(4)

Defendant in prosecution for conspiracy to violate this section and section 1343 of this title and for scheme todefraud by use of mails was entitled to have set forth in bill of particulars whether government intended upontrial to offer evidence of false and fraudulent pretenses, representations and promises not stated in indictment. U.S. v. Pilnick, S.D.N.Y.1967, 267 F.Supp. 791. Indictment And Information 121.2(9)

In federal prosecution for scheme to defraud by use of telephone and telegraph communications, defendant's mo-tion for bill of particulars which treated allegation of scheme in indictment as though scheme was actually car-ried out and asked for particulars as to carrying out of such scheme would be denied as calling for particulars asto matters not alleged in the indictment. U S v. Fassoulis, S.D.N.Y.1959, 179 F.Supp. 645. Indictment And In-formation 121.2(9)

162. Pleas, practice and procedure

Petitioner only pled guilty to honest services fraud, even though information referred to federal wire fraud stat-ute and stated that petitioner, in executing and attempting to execute fraudulent scheme, “did knowingly transmitelectronic mail communications directing that funds be wired to [his] business accounts,” and thus, followingSupreme Court decision in Skilling that limited honest services fraud to “paradigmatic cases of bribes and kick-backs,” petitioner demonstrated actual innocence sufficient to overcome the barrier to reviewing his procedur-ally defaulted habeas claim, where plea agreement only referred to honest services fraud and did not allege

18 U.S.C.A. § 1343


money- or property-based wire fraud, government pursued honest services fraud theory of prosecutionthroughout plea proceedings, no evidence suggested that petitioner either engaged in bribery or received kick-backs, and, therefore, the crime to which petitioner pled guilty and for which he stood incarcerated was nolonger a criminal offense. U.S. v. Avery, C.A.9 (Alaska) 2013, 719 F.3d 1080. Habeas Corpus 401

Defendant knowingly and intelligently pleaded guilty to wire fraud, stemming from scheme to defraud UnitedStates Department of Agriculture (USDA) by trafficking in food stamp benefits, as court adequately ensured thathe knew the elements of wire fraud; government, when asked by district court to explain the charges during theplea colloquy, stated that the two charges of wire fraud involved an intentional plan to defraud USDA's foodstamp program by electronic means. U.S. v. Ali, C.A.7 (Ill.) 2010, 619 F.3d 713, certiorari denied 131 S.Ct. 965,178 L.Ed.2d 794. Criminal Law 273.1(1)

Defendant's admission under oath that he faxed purchase orders with intent to induce leasing company toprovide vehicles to him knowing that he did not have sufficient funds to satisfy payment and that he took certainactions because he knew he could not comply with terms of purchase agreement demonstrated that defendant un-derstood intent element of charge of wire fraud when he pled guilty. U.S. v. LeDonne, C.A.7 (Ind.) 1994, 21F.3d 1418, rehearing denied, certiorari denied 115 S.Ct. 584, 513 U.S. 1020, 130 L.Ed.2d 498. Criminal Law

273(4.1)

Defendant, who entered conditional plea to wire fraud, did not waive issue as to whether he caused use of wireby entering into conditional plea in which conditional plea agreement letter stated that only issues raised in de-fendant's written motion to dismiss were preserved for appeal; defendant raised issue as to causation duringhearing on motion to dismiss, and thus argument was incorporated into written motion and was preserved for ap-peal. U.S. v. Bentz, C.A.3 (Pa.) 1994, 21 F.3d 37. Criminal Law 1026.10(5)

Even though government made typographical error in preparing count charging defendant with violating thissection by fraudulent use of oil company credit card and count should have charged fraudulent use of bankingcredit card belonging to individual correctly named in the charge, where defendant was confronted with tran-scription of taped conversation between him and coconspirator regarding use of banking credit card and admit-ted his involvement in the incident, factual basis existed for acceptance of guilty plea to charge of fraudulent useof banking credit card. Weisser v. Ciccone, C.A.8 (Mo.) 1976, 532 F.2d 101. Criminal Law 273(4.1)

Defendant who entered plea of guilty to wire fraud did not have right to withdraw his guilty plea either before orafter sentencing. Sherman v. U. S., C.A.9 (Hawai'i) 1967, 383 F.2d 837. Criminal Law 274(1)

Private attorney did not provide ineffective assistance with regard to defendant's rejection of draft plea agree-ment for 33 months for wire fraud, where defendant had been aware of plea agreement offer, he had been un-willing to plead guilty and accept responsibility for his crimes, he had been represented by his court-appointedpublic defender at that time who had repeatedly counseled him to take that plea deal, and private attorney hadnot yet been paid retainer or entered appearance. Watkins v. U.S., C.D.Ill.2012, 887 F.Supp.2d 833. CriminalLaw 1920

18 U.S.C.A. § 1343


Government did not breach plea agreement by seeking sentencing enhancements that increased his total offenselevel beyond stipulated level of 19 for wire fraud conviction; although defendant agreed in plea agreement thathe would be fully truthful and forthright, defendant frustrated the government's efforts to debrief him by at-tempting to limit the scope of the questioning, and claimed in an objection to the presentence report that he nev-er guaranteed his financial services were safe and without risk, in the face of evidence plainly contradicting thisclaim. U.S. v. Stroupe, C.A.4 (S.C.) 2006, 200 Fed.Appx. 178, 2006 WL 2620209, Unreported, post-convictionrelief denied 664 F.Supp.2d 598. Criminal Law 273.1(2)

163. Preliminary hearing, practice and procedure

Defendants who were taken in custody only after indictment for mail and wire fraud had been returned were notentitled to preliminary hearing. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205, certiorari denied 90 S.Ct.1245, 397 U.S. 1013, 25 L.Ed.2d 427. Criminal Law 224

164. Comments or conduct of court, practice and procedure

The District Court did not infringe on defendant's right to effective assistance of counsel by permitting defend-ant's former attorney to testify regarding the state's loss and restitution calculations at defendant's sentencing forconvictions for fraud by wire affecting a financial institution, preparation of a false tax return, wire fraud andaggravated identity theft, where the former attorney was called to testify by defendant's new trial counsel, thenew trial counsel acted independently in calling the former attorney to testify, and there was no interference orrestriction in the new trial counsel's presentation of the defense. U.S. v. Stargell, C.A.9 (Cal.) 2013, 725 F.3d1015. Sentencing and Punishment 931; Sentencing and Punishment 2191

Even if trial judge took jury into his chambers to show them rotary telephone, in prosecution for use of interstatetelephone facilities in carrying out scheme to defraud, trial was not rendered fundamentally unfair so as toamount to deprivation of due process. Buckelew v. U. S., C.A.5 (La.) 1978, 575 F.2d 515. Constitutional Law

4623; Criminal Law 655(1)

Although, in prosecution for conspiracy to violate this section and section 1341 of this title, the government didnot need to prove that certain “pitch books” were fraudulent, a showing that they were a sham would tend toprove scienter, a key element of the crime, and therefore, to the extent the trial judge's comments concerning the“pitch books” betrayed to the jury a predisposition on such issue, error was committed; however, the judge'scomments were not sufficiently prejudicial to the substantial rights of defendants to warrant granting a new trial.U. S. v. Smith, C.A.6 (Tenn.) 1977, 561 F.2d 8, certiorari denied 98 S.Ct. 487, 434 U.S. 958, 54 L.Ed.2d 317,certiorari denied 98 S.Ct. 524, 434 U.S. 972, 54 L.Ed.2d 461, certiorari denied 98 S.Ct. 741, 434 U.S. 1019, 54L.Ed.2d 766, certiorari denied 98 S.Ct. 897, 434 U.S. 1048, 54 L.Ed.2d 800. Criminal Law 656(8); Crimin-al Law 1166.22(4.1)

In prosecution for using interstate wire facilities in carrying out scheme to defraud certain hotel casinos and forconspiracy involving same scheme, trial judge's identification of counsel for government and defendants did notprejudice defendant by tainting witness' in-court identification on theory that judge identified defendant wheretrial judge identified only counsel and did not identify defendant, who, moreover, admitted that he wrote check

18 U.S.C.A. § 1343


about which witness testified. U. S. v. Scallion, C.A.5 (La.) 1976, 533 F.2d 903, certiorari denied 97 S.Ct. 824,429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97 S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S. 943, 56 L.Ed.2d 784. Criminal Law 1166.22(2)

In prosecution for wire fraud in connection with settlement agreement with telephone company with intercon-necting lines, record failed to establish unfairness on part of trial judge, where court's restatement of evidenceand questions to witnesses had been designed only to simplify the very complex facts of case. U. S. v. Henny,C.A.9 (Wash.) 1975, 527 F.2d 479, certiorari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815. Telecommu-nications 1019

Where prosecution of defendant charged with large scale check kiting involved long and complicated trial andtrial judge fully complied with his obligations in instructing jury, judge's comments on evidence did not showconfusion or unfairness and did not constitute partial direction of verdict. U. S. v. Jones, C.A.9 (Cal.) 1970, 425F.2d 1048, certiorari denied 91 S.Ct. 44, 400 U.S. 823, 27 L.Ed.2d 51. Criminal Law 656(1)

Where trial court on two occasions asked jury specifically whether they had read either book or magazine articlebased in part upon prior civil libel proceeding against weight-reducing drug and each juror replied in negative,court repeatedly and emphatically admonished jury to avoid all contact with any publicity concerning case, andbook and magazine article largely rehashed admissible evidence, defendants charged with mail fraud and wirefraud in connection with advertising of such drug were not prejudiced. U. S. v. Andreadis, C.A.2 (N.Y.) 1966,366 F.2d 423, certiorari denied 87 S.Ct. 703, 385 U.S. 1001, 17 L.Ed.2d 541. Criminal Law 1174(2)

165. Comments or conduct of counsel, practice and procedure

Government had not engaged in selective prosecution of defendant on charges of conspiracy to commit wirefraud and money laundering, where original prosecutor and prosecutor's supervisor testified that they bore noanimus toward defendant, case was initiated because person involved in offense came forward to admit hiswrongdoing, prosecutor did not take time to review search warrant affidavit over period of several months, andcase had to be reassigned to different prosecutor to approve affidavit. U.S. v. Clay, C.A.8 (Ark.) 2010, 618 F.3d946, rehearing and rehearing en banc denied , certiorari denied 131 S.Ct. 1540, 179 L.Ed.2d 309, denial of post-conviction relief affirmed 720 F.3d 1021. Criminal Law 37.10(2)

Trial court did not abuse its discretion in precluding defense counsel from reading state statute on bad checksduring closing argument in wire fraud prosecution on grounds that it was not material to crime charged, althoughprosecution had characterized the case as a “bad check case.”. U.S. v. Clausen, C.A.8 (Minn.) 1986, 792 F.2d102, certiorari denied 107 S.Ct. 202, 479 U.S. 858, 93 L.Ed.2d 133. Criminal Law 2086

Although, during closing arguments in prosecution for mail and wire fraud based upon alleged scheme to de-fraud defendant's employer by using false bank guarantee letters to fulfill collateral requirements for trading instock options, government characterized defendant's concealment of his interest in customer as “fraud” on em-ployer, where government also stated at outset that bottom line was “playing with the house's money” and thatdefendants “did not put up one thin dime to trade nearly $2 million worth of options,” and where defendant

18 U.S.C.A. § 1343


made no objection to government's several references to nondisclosure as fraud until his motion for new trial,government's argument was not reversible error. U.S. v. Feldman, C.A.7 (Ill.) 1983, 711 F.2d 758, certioraridenied 104 S.Ct. 352, 464 U.S. 939, 78 L.Ed.2d 317. Criminal Law 1171.1(3)

In light of losses incurred by investors, prosecutor's use of word “victim” was fair comment on the evidence inprosecution for mail fraud, wire fraud and inducing people to travel in interstate commerce for purposes offraud. U. S. v. Gibson, C.A.9 (Ariz.) 1982, 690 F.2d 697, certiorari denied 103 S.Ct. 1446, 460 U.S. 1046, 75L.Ed.2d 801. Criminal Law 2115

In prosecution for wire fraud, misstatements of government counsel during closing argument did not constitutegrounds for reversal where misstatements were either based on evidence in record or inadvertent and where trialjudge instructed jury to disregard comment. U. S. v. Saavedra, C.A.9 (Cal.) 1982, 684 F.2d 1293. Criminal Law

2195

Although improper, isolated remark by prosecutor that “there is no difference in these guys and people who goout and stick up banks” was not sufficiently prejudicial to rise to level of plain error in prosecution for conspir-acy, making or causing to be made materially false statements and reports in application for loan from FederalDeposit Insurance Corporation bank, fraud by wire, and aiding and abetting commission of such substantive of-fenses. U. S. v. Calandrella, C.A.6 (Ky.) 1979, 605 F.2d 236, certiorari denied 100 S.Ct. 522, 444 U.S. 991, 62L.Ed.2d 420. Criminal Law 1037.1(2)

In prosecution for conspiracy to defraud by means of interstate wire communications and for substantive of-fenses, prosecutor's arguments “* * * if there is any evidence that there was an account there, it's up to the de-fendant to produce it” and “* * * I object to this man's testifying to what his client told him as his attorney whenthe man is here present” were not plain error affecting defendant's substantial rights, could not be said to haveinfluenced verdict, and did not require reversal in absence of objection or request for mistrial or admonition,though it was claimed that remarks were prejudicial references to failure to testify. U. S. v. Waldo, C.A.10(Okla.) 1972, 470 F.2d 1359. Criminal Law 1037.1(2); Criminal Law 1037.2

Assistant United States attorney, who prosecuted case based on alleged false claims in advertising of purportedweight-reducing drug, did nothing improper in permitting author to examine depositions which were matter ofpublic record and which had been taken in connection with previous civil libel against such drug, and his con-duct did not deprive defendant of fair trial where he took no steps to ignite interest in having any material pub-lished and asked that publication of book and magazine article pertaining to drug be delayed until after trial. U.S. v. Andreadis, C.A.2 (N.Y.) 1966, 366 F.2d 423, certiorari denied 87 S.Ct. 703, 385 U.S. 1001, 17 L.Ed.2d541. Criminal Law 1985

In prosecution for devising a scheme to defraud by means of interstate wire, and of conspiring to commit suchoffense, trial court, in commenting on the evidence, exceeded permissible comment and was guilty of reversibleerror. Buchanan v. U.S., C.A.6 (Ky.) 1957, 244 F.2d 916. Criminal Law 756; Criminal Law 1172.2

18 U.S.C.A. § 1343


Prosecutor's improper remarks in mischaracterizing representations made by defendant, as chairman of a prop-erty exchange business, through marketing materials and exchange documents regarding security of exchangors'funds, in making undue assumptions about inherent attributes of property exchanges and escrow accounts, and inemphasizing defendant's selfish motive to make a fortune investing exchangors' funds, warranted a new trial in aprosecution for mail and wire fraud; cumulative effect of prosecutor's remarks was to taint integrity of verdict.U.S. v. Carpenter, D.Mass.2011, 808 F.Supp.2d 366. Criminal Law 919(3); Criminal Law 2096

166. Discovery and inspection, practice and procedure

Government did not commit Brady violation by intentionally providing defendant charged with wire fraud inconnection with a scheme to defraud the government by making false statements in an effort to obtain more than$320,000 in veterans' benefits with incomplete version of accident report, absent evidence that allegedly missingphotographs ever were included in accident report, that government was in possession of any of the allegedlymissing photographs, or that the allegedly missing photographs would be exculpatory. U.S. v. Roberts, C.A.7(Wis.) 2008, 534 F.3d 560, rehearing en banc denied , certiorari denied 129 S.Ct. 1028, 555 U.S. 1139, 173L.Ed.2d 297. Criminal Law 2000

Where purchaser asserting civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims againstseller from whom she acquired boutique had three years in which to conduct discovery in support of her claims,purchaser was not entitled to further discovery and opportunity to correct procedural deficiencies in complaint,which failed to allege predicate acts of wire fraud with requisite particularity, before court dismissed purchaser'sRICO claims; there was little indication that discovery requested by purchaser would have produced any inform-ation that would have permitted her to allege requisite two interstate communications with particularity and pur-chaser failed to even allege interstate communications on information and belief. Cordero-Hernandez v. Hernan-dez-Ballesteros, C.A.1 (Puerto Rico) 2006, 449 F.3d 240, rehearing and rehearing en banc denied , certioraridenied 127 S.Ct. 964, 549 U.S. 1128, 166 L.Ed.2d 732. Federal Civil Procedure 1828

In prosecution for conspiracy to commit wire fraud, tardy disclosure of exculpatory material did not warrant re-versal where defendant was made aware of the material three weeks prior to trial and defendant's counsel madereference to the material at trial in questioning defendant and in developing defense that defendant was merely apawn in the fraudulent transactions. U.S. v. Multi-Management, Inc., C.A.9 (Mont.) 1984, 743 F.2d 1359. Crim-inal Law 1166(10.10)

In prosecution for using interstate wire facilities in carrying out scheme to defraud certain hotel casinos and forconspiracy involving same scheme, refusal to suppress driver's license application, which was allegedly signedby one defendant and which government had allegedly failed to furnish in compliance with pretrial discovery or-der directing government to give defendants any handwriting exemplars or any documents containing their sig-natures within period of three weeks, was not abuse of discretion where there was literal compliance with dis-covery order in that prosecution received application after expiration of three-week period, two-day delay wasdirected to overcome any surprise, and defendant did not argue that delay was inadequate to identification of ap-plication and preparation for defense. U. S. v. Scallion, C.A.5 (La.) 1976, 533 F.2d 903, certiorari denied 97S.Ct. 824, 429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97 S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, on re-hearing 548 F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S. 943, 56 L.Ed.2d 784. Criminal Law

18 U.S.C.A. § 1343


627.8(6)

Where at hearing on remand to determine whether convictions for mail and wire fraud were tainted by overhear-ings by Federal Bureau of Investigation, complete logs of overhearings were turned over to defendants, theywere not entitled to require production of “air tels,” i.e., brief summaries sent to Bureau offices which did nothave possession of logs themselves. U. S. v. Hoffa, C.A.7 (Ill.) 1970, 436 F.2d 1243, certiorari denied 91 S.Ct.455, 400 U.S. 1000, 27 L.Ed.2d 451, certiorari denied 91 S.Ct. 457, 400 U.S. 1000, 27 L.Ed.2d 451. CriminalLaw 627.6(5)

Where defendant was indicted for conspiracy to solicit kickbacks, for substantive offense of agreeing to receiveand receiving a kickback, and for substantive offenses of wire and mail fraud, defendant's request for discovery,inspection, production and copying of any alleged receipt or other documents reflecting source of payment todefendant in possession of United States would be granted. U. S. v. Dorfman, S.D.N.Y.1971, 335 F.Supp. 675.Criminal Law 627.6(2)

Defendant in prosecution for conspiracy to violate this section and section 1341 of this title and for scheme todefraud by use of the mails was entitled to inspect and copy all statements made by defendant which were in thehands of the government, all books of account in government's possession and which it intended to offer in evid-ence upon trial and recorded testimony of defendant before grand jury. U. S. v. Pilnick, S.D.N.Y.1967, 267F.Supp. 791. Criminal Law 627.6(1); Criminal Law 627.7(2); Criminal Law 627.9(1)

In response to bill of particulars, government was required to disclose identification of alleged conspirators, re-ferred to as “others known” in paragraph of superseding indictment against defendants for securities and wirefraud. U.S. v. Principato, S.D.N.Y.2002, 2002 WL 31319931, Unreported.

167. Presumptions, practice and procedure

Where parties are residents of same state, it can be presumed that phone calls made between them were in-trastate calls which cannot constitute wire fraud under federal statute. Metro Furniture Rental, Inc. v. Alessi,S.D.N.Y.1991, 770 F.Supp. 198. Telecommunications 1014(12)

168. Burden of proof, practice and procedure

To convict defendant of wire fraud in connection with misstatements regarding status of funding for real estatedevelopment projects, government had to establish that harm to victims' property interests was deprivation of in-formation necessary to make discretionary economic decisions. U.S. v. Carlo, C.A.2 (N.Y.) 2007, 507 F.3d 799.Telecommunications 1014(7)

All prosecution need show to convict defendant for mail or wire fraud is that defendant participated in fraudu-lent scheme and used interstate mail or wire facilities to further the scheme. U.S. v. Wharton, C.A.5 (La.) 2003,320 F.3d 526, certiorari denied 123 S.Ct. 2288, 539 U.S. 916, 156 L.Ed.2d 132. Postal Service 35(2); Tele-communications 1014(2)

18 U.S.C.A. § 1343


All that government was required to prove in wire fraud prosecution of Internal Revenue Service (IRS) employ-ee based on unauthorized browsing of computerized taxpayer files was the intent to follow through with depriva-tion of IRS's property and the use or foreseeable use of interstate wire transmissions pursuant to accomplishmentof the scheme to defraud. U.S. v. Czubinski, C.A.1 (Mass.) 1997, 106 F.3d 1069. Telecommunications1014(4)

Under the exception to general rule that knowledge or foreseeability of interstate character of the communica-tion is not required under wire fraud statute [18 U.S.C.A. § 1343], government must show that accused knew orcould have foreseen that a communication in furtherance of a fraudulent scheme was interstate if the conductgiving rise to the scheme would not be a violation of state law and was not itself morally wrongful. U.S. v. Bry-ant, C.A.8 (Mo.) 1985, 766 F.2d 370, certiorari denied 106 S.Ct. 790, 474 U.S. 1054, 88 L.Ed.2d 768. Telecom-munications 1014(4)

In prosecution for wire fraud, government had burden of proving the contents of the telephone conversationmade in furtherance of the unlawful activity. U. S. v. Garner, C.A.9 (Nev.) 1981, 663 F.2d 834, certiorari denied102 S.Ct. 1750, 456 U.S. 905, 72 L.Ed.2d 161. Telecommunications 1018(2)

In prosecution for fraud by wire based on certain telephone calls, government had burden of proving content ofsuch calls. Osborne v. U. S., C.A.9 (Cal.) 1967, 371 F.2d 913, certiorari denied 87 S.Ct. 2082, 387 U.S. 946, 18L.Ed.2d 1335, rehearing denied 88 S.Ct. 23, 389 U.S. 891, 19 L.Ed.2d 207. Telecommunications 1018(2)

Petitioner failed to show that there was a fundamental legal error in his conviction for conspiracy, based on un-derlying substantive offense of honest services wire fraud, as would warrant relief through writ of error coramnobis, where information charged petitioner with a federal crime, and petitioner agreed to the underlying facts ofthat crime at plea hearing; facts included in information and conceded at plea hearing provided a rational basisfor a plausible inference that petitioner, a public official whose job included issuing search warrants, intended toengage in a scheme to deprive state of his honest services. U.S. v. George, D.Mass.2006, 436 F.Supp.2d 274.Criminal Law 1451

To prove conspiracy to commit honest services wire fraud, government must show that: (1) defendant and othersknowingly agreed to participate in scheme to defraud by means of false pretenses and made representations orpromises relating to material fact; (2) parties did so willfully and with intent to defraud; and (3) some member ofconspiracy transmitted or caused to be transmitted by wire some communication for purpose of executing con-spiracy to scheme to defraud. U.S. v. Safavian, D.D.C.2006, 435 F.Supp.2d 36. Telecommunications1014(10)

In the usual wire fraud case, the government need not prove an effect on a financial institution. Bouyea v. U.S.,D.Conn.2003, 263 F.Supp.2d 403, affirmed 121 Fed.Appx. 923, 2005 WL 481659. Telecommunications1014(7)

169. Admissibility of evidence, practice and procedure--Generally

18 U.S.C.A. § 1343


Defendant invited error regarding court's instruction on evidence of prior bad acts, by submitting evidence of hisown prior bad act of lying about his whereabouts to his former supervisor who had accused him of lying, in or-der to show that he would not have later engaged in a conspiracy with that supervisor. U.S. v. Roussel, C.A.5(La.) 2013, 705 F.3d 184. Criminal Law 1137(5)

Evidence permitted finding that defendant charged with wire fraud and conspiracy to commit wire fraud was en-gaged with real estate agent in continuing business relationship such that defendant and agent were engaged inlawful joint enterprise to acquire real property at the time agent made statements to lawyer for executor of de-ceased owner's estate regarding defendant's interest in property in which she falsely identified defendant asUnited States marshal, and therefore statements, which were made in furtherance of joint enterprise, were ad-missible under hearsay exception for statement of coconspirator made during and in furtherance of conspiracy.U.S. v. Brockenborrugh, C.A.D.C.2009, 575 F.3d 726, 388 U.S.App.D.C. 28, rehearing en banc denied. Crimin-al Law 427(5)

Statements made by defendant's former attorney, in which attorney stated that defendant's actions were improperand illegal and that defendant had concealed his security trading activities from investors, were not admissible indefendant's wire fraud and securities fraud prosecution as non-hearsay party admissions; attorney's statementswere not made in an investigative capacity, were uttered more than five years before defendant's criminal trial,attorney was not attempting to develop a defense strategy by making statements, and statements contradicted de-fense argument that defendant reasonably believed that investors knew about his cross-collateral trading activit-ies. U.S. v. Jung, C.A.7 (Ill.) 2007, 473 F.3d 837, rehearing and suggestion for rehearing en banc denied, certior-ari denied 128 S.Ct. 326, 552 U.S. 933, 169 L.Ed.2d 229, rehearing denied 128 S.Ct. 972, 552 U.S. 1134, 169L.Ed.2d 795, post-conviction relief denied 2009 WL 3575320. Criminal Law 410.41

Electronic mail messages from group of investors demanding more information about defendant's fraudulent in-vestment scheme and speculating that scheme was fraud were not hearsay, and thus were admissible in defend-ant's wire fraud prosecution; messages were not offered for truth of matters asserted, but instead were offered toprovide context for defendant's messages sent in response, and messages rebutted defendant's argument that shehad no reason to know that scheme was fraudulent. U.S. v. Dupre, C.A.2 (N.Y.) 2006, 462 F.3d 131, certioraridenied 127 S.Ct. 1026, 549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S. 1151, 166L.Ed.2d 773, habeas corpus denied 2012 WL 2953970. Criminal Law 419(2)

In prosecution for wire fraud, in which prosecution alleged that defendants had obtained confidential informa-tion from telephone company and United States Post Office by misrepresentations, document evidencing tele-phone company policy regarding confidentiality of information sought by defendants' company was properly ad-mitted for purpose of showing that information sought by defendants was confidential. U. S. v. Louderman,C.A.9 (Cal.) 1978, 576 F.2d 1383, certiorari denied 99 S.Ct. 257, 439 U.S. 896, 58 L.Ed.2d 243. Criminal Law

432

Government witness' testimony as to alleged briber's statements concerning payment of bribe to defendant wereadmissible in prosecution for conspiracy to accept bribe to influence operations of employee benefit plan and touse interstate wire facilities for the purpose of fraud where the statements were made in furtherance of the con-

18 U.S.C.A. § 1343


spiracy. U.S. v. Dorfman, C.A.2 (N.Y.) 1972, 470 F.2d 246, stay denied 93 S.Ct. 1505, 410 U.S. 977, 36L.Ed.2d 176, certiorari dismissed 93 S.Ct. 1561, 411 U.S. 923, 36 L.Ed.2d 317. Criminal Law 423(1)

District court did not improperly exclude potentially exculpatory evidence at defendants' trial for conspiracy tocommit wire fraud, wire fraud, conspiracy to commit money laundering, and money laundering, despite defend-ants' contention that court excluded Arabic writing which evidenced debt owed to a defendant; court's cautionarystatement reminding counsel that promising evidence during opening statement may be risky where item's ad-missibility is hotly contested was not prohibition on admissibility of evidence, and there was no evidence thatdefendants sought to introduce writing at trial. U.S. v. Shalhout, D.Virgin Islands 2012, 280 F.R.D. 223, af-firmed 507 Fed.Appx. 201, 2012 WL 6581619. Criminal Law 2193

170. ---- Bank records, admissibility of evidence, practice and procedure

Comity did not require an American court, on the basis of a French statute apparently intended to protect Frenchbusinesses from excessive discovery and hostile foreign litigation, to exclude telexes which were sent from theUnited States to France and which were not subpoenaed but which the French branch of a Portuguese bankprovided voluntarily in a mail and wire fraud prosecution involving the solicitations of a loan from such bank.U.S. v. Gonzalez, C.A.2 (N.Y.) 1984, 748 F.2d 74. Courts 9

Defendants could not claim that codefendant's rights under U.S.C.A. Const.Amend. 5 had been violated and thuscould not claim that violation of codefendant's rights under U.S.C.A. Const.Amend. 5 rendered bank recordspertaining to defendants' accounts in bank inadmissible in prosecution for using interstate wire facilities in car-rying out scheme to defraud certain hotel casinos and for conspiracy involving same scheme. U. S. v. Scallion,C.A.5 (La.) 1976, 533 F.2d 903, certiorari denied 97 S.Ct. 824, 429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied97 S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548 F.2d 1168, certiorari denied 98 S.Ct. 2843, 436U.S. 943, 56 L.Ed.2d 784. Criminal Law 392.41

171. ---- Business records, admissibility of evidence, practice and procedure

Business records and newspaper articles seized from defendant's business files, describing advance fee or up-front fee loan scams, were relevant to proving that defendant intended to defraud borrowers in connection withfraudulent loan fee commitment scheme underlying charges of wire fraud; by denying intent to defraud, defend-ant invited government on cross-examination to attempt to refute or discredit him on that point, and articles andrecords were also direct evidence bearing on intent element of crime charged. U.S. v. Mills, C.A.8 (Mo.) 1993,987 F.2d 1311, rehearing denied, certiorari denied 114 S.Ct. 403, 510 U.S. 953, 126 L.Ed.2d 351. Telecommu-nications 1018(3)

In prosecution for using interstate wire facilities in carrying out scheme to defraud hotel casinos and for conspir-acy involving same scheme, records of hotels were admissible under section 1732 of Title 28 to show that threedefendants made credit applications and information recorded thereon, that such applications caused interstatephone calls to be made, and that credit information was received from calls and information that was receivedand recorded where defendants' link to hotel records was established by independent evidence and present cus-todian of each record testified that record was kept in regular course of hotel's business. U. S. v. Scallion, C.A.5

18 U.S.C.A. § 1343


(La.) 1976, 533 F.2d 903, certiorari denied 97 S.Ct. 824, 429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548 F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S.943, 56 L.Ed.2d 784. Criminal Law 436(4)

172. ---- Checks or money orders, admissibility of evidence, practice and procedure

In light of testimony establishing that certain cashier's checks given to hotel were worthless, their presentation to“bank” was not required in order to obtain fraud conviction against defendant, who purchased such checks atsums smaller than their face value from person who operated fictitious bank in West Indies. U. S. v. Wolfson,C.A.9 (Nev.) 1980, 634 F.2d 1217. False Pretenses 49(1)

In prosecution for mail and wire fraud, it was proper to permit jury to consider evidence about certain checks indetermining defendant's motive, opportunity, intent, plan, knowledge or absence of mistake or accident wherethe circumstances surrounding the checks were so similar to and so closely contemporaneous with the schemecharged in the indictment as to permit a jury to find that the checks were a part of a scheme concocted and car-ried out by defendant and codefendant. U. S. v. Federbush, C.A.9 (Cal.) 1980, 625 F.2d 246. Criminal Law368.26; Criminal Law 373.12; Criminal Law 373.20

Dummy money orders were admissible in defendants' trial for mail and wire fraud where supervisor for tele-graph company which sold money orders testified that it was company's business routine to make such dummyorder whenever money order was ordered, or within reasonable time thereafter, if formal application had notbeen received, and fact identification witness lacked personal knowledge of particular orders involved affectedtheir weight and not their admissibility. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205, certiorari denied 90S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Criminal Law 444.9

173. ---- Codefendant's testimony, admissibility of evidence, practice and procedure

In prosecution for wire fraud, trial court did not err in admitting into evidence a statement made by codefendant,who was defendant's wife, to the effect that she knew that her activities were illegal, in view of fact that evid-ence was admitted against codefendant only to show her intent, and trial court instructed jury to consider theevidence only as against codefendant. U. S. v. Louderman, C.A.9 (Cal.) 1978, 576 F.2d 1383, certiorari denied99 S.Ct. 257, 439 U.S. 896, 58 L.Ed.2d 243. Criminal Law 673(4)

Evidence of declarations by defendant was sufficient independent proof connecting defendant with conspiracy touse interstate telephone communication in furtherance of scheme to defraud to render admissible testimony as todeclarations made by codefendant in furtherance of conspiracy, as against defendant's contention that testimonyas to codefendant's declarations constituted inadmissible hearsay as to defendant. U. S. v. Gallagher, C.A.7 (Ill.)1971, 437 F.2d 1191, certiorari denied 91 S.Ct. 2190, 402 U.S. 1009, 29 L.Ed.2d 430. Criminal Law427(5)

In prosecution of several defendants under this section and section 1341 of this title, admission of testimony ofone of the defendants, who had pleaded guilty and who had been placed on probation, did not violate the other

18 U.S.C.A. § 1343


defendants' privilege against self-incrimination. Goodman v. U.S., C.A.8 (N.D.) 1960, 273 F.2d 853. CriminalLaw 393(1)

In determining by preponderance of evidence whether conspiracy existed and whether both defendant and de-clarant participated in it, for purposes of establishing that statement was non-hearsay statement of co-conspirator, court may consider both hearsay statements sought to be admitted and other evidence probative ofthose matters, so long as it does not rely exclusively on co-conspirator statements. U.S. v. Safavian,D.D.C.2006, 435 F.Supp.2d 36. Criminal Law 428

174. ---- Expert testimony, admissibility of evidence, practice and procedure

Defendant's proffered expert mental health evidence, which supported defendant's belief that she was compelledto participate in investment scheme by God, was not admissible to negate the mens rea elements of charged of-fenses of wire fraud, and conspiracy to commit wire fraud; expert report stated defendant possessed above aver-age intelligence, was capable of good judgment, and report would likely mislead and confuse jury by permittingdefendant to prove impermissible theory of justification before jury without meeting burden of presenting af-firmative defense of insanity. U.S. v. Dupre, C.A.2 (N.Y.) 2006, 462 F.3d 131, certiorari denied 127 S.Ct. 1026,549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S. 1151, 166 L.Ed.2d 773, habeas cor-pus denied 2012 WL 2953970. Conspiracy 45; Telecommunications 1018(3)

Expert's proposed testimony, in prosecution, based on rebate program, for mail and wire fraud and conspiracy tocommit mail and wire fraud, was both unreliable and irrelevant, such that exclusion of testimony was not abuseof discretion; expert had no adequate basis for comparing rebate program to other programs, inasmuch as he hadnever encountered a program like that run by defendant and his personal knowledge related only to other pro-grams, and expert would have added nothing that a juror could not understand on basis of common sense. U.S.v. Fredette, C.A.10 (Wyo.) 2003, 315 F.3d 1235, dismissal of habeas corpus affirmed 65 Fed.Appx. 929, 2003WL 1795858, certiorari denied 123 S.Ct. 2100, 538 U.S. 1045, 155 L.Ed.2d 1084, dismissal of post-convictionrelief affirmed 191 Fed.Appx. 711, 2006 WL 2277989. Criminal Law 478(1)

Testimony by insurance company's counsel that he told comptroller about need for defendant to immediately re-turn money wrongfully taken from insurance company was inadmissible as opinion on guilt in prosecution forwire fraud and transportation of stolen property arising from fraudulent acquisition of insurance company anddiversion of funds for personal use. U.S. v. Newman, C.A.1 (R.I.) 1995, 49 F.3d 1. Criminal Law 450

No plain error occurred in prosecution arising out of defendant's participation in fraudulent loan scheme whengovernment experts used terms such as “scam,” “fraudulent,” and “fraud,” despite defendant's complaint that ex-perts, by using such words too often in characterizing loans in question, implied, in violation of evidence rule,that defendant had required intent to commit fraud; evidence rule allows expert testimony that embraces ultimateissue to be cited by trier of fact, and thus expert opinion that loan scheme was fraudulent was not improper. U.S.v. Aggarwal, C.A.5 (Tex.) 1994, 17 F.3d 737, rehearing denied. Criminal Law 470(1); Criminal Law1036.6

18 U.S.C.A. § 1343


Trial court in prosecution for interstate wire fraud and making false statements in loan application to a bankproperly admitted testimony as to what several terms peculiar to confidence schemes involving negotiable in-struments meant to government agent involved in scheme, where defendant and agent were speaking of financialtransactions in terms which might well not be understood by many members of jury and there was good reasonfor court to believe that an explanation of the terms used in conversations would assist jury in considering andassessing that evidence. U.S. v. Hutchings, C.A.2 (N.Y.) 1985, 757 F.2d 11, certiorari denied 105 S.Ct. 3511,472 U.S. 1031, 87 L.Ed.2d 640. Criminal Law 451(4)

Where defense to prosecution for mail fraud, using fictitious name to defraud, and wire fraud was that recordbusiness would have been successful if defendant had been given credit and discounts which were given to otherrecord distributors and there was no evidence showing that certified public accountant was specially qualified togive opinion as to probability or possibility of success of business, court did not err in excluding testimony byaccountant. Fineberg v. U. S., C.A.9 (Cal.) 1968, 393 F.2d 417. Criminal Law 480

Testimony of two doctors, introduced only to establish that advertising claims made for defendants' purportedweight-reducing drug were scientifically false, was admissible for that purpose and was not rendered inadmiss-ible on theory that evidence did not represent a “universality of scientific belief” that drug was ineffective. U. S.v. Andreadis, C.A.2 (N.Y.) 1966, 366 F.2d 423, certiorari denied 87 S.Ct. 703, 385 U.S. 1001, 17 L.Ed.2d 541.Criminal Law 472

Experts' references to defendant's impaired judgment and lack of impulse control based on bipolar disorder wasinadmissible at trial for mail and wire fraud to negate mens rea; testimony regarding defendant's impulsivity andpoor judgment was irrelevant to whether she possessed intent to defraud, and impermissibly served to excuse de-fendant's conduct. U.S. v. Andrews, E.D.Pa.2011, 811 F.Supp.2d 1158. Criminal Law 474

Probative value of defendant's expert witness testimony compared to prejudice of defense counsel's late disclos-ure of testimony warranted its exclusion at trial on charges of interstate wire fraud, international money launder-ing, Violation of Racketeer Influenced and Corrupt Organizations Act (RICO), and conspiracy to violate RICO;expert's testimony about history of family abuse and mental illness as explanation for defendant's involvement incriminal enterprise was excludable as not sufficiently probative on issue of whether defendant had knowledgeand intent to join enterprise, expert would have impermissibly testified on ultimate issue of defendant's mentalstate which was for trier of fact to decide, and defense counsel's late notification of intention to offer expert wasnot justified by good cause. U.S. v. Kim, D.Conn.2004, 303 F.Supp.2d 150. Criminal Law 470(2); Crimin-al Law 474; Criminal Law 629.5(7)

175. ---- Identification of defendant, admissibility of evidence, practice and procedure

In prosecution for wire fraud, no error was committed in allowing witnesses to testify with respect to their pre-trial identification of defendant in a photographic lineup which took place, shortly after offense here involved, asphotographic line-up was conducted. U. S. v. King, C.A.8 (Mo.) 1978, 590 F.2d 253, certiorari denied 99 S.Ct.1538, 440 U.S. 973, 59 L.Ed.2d 790. Criminal Law 339.7(1)

18 U.S.C.A. § 1343


176. ---- Other crimes, admissibility of evidence, practice and procedure

Probative value of evidence respecting prior mistrial and identity of government attorneys involved in witness'scooperation agreement was substantially outweighed by risk of prejudice in prosecution for mail and wire fraudand conspiracy to commit mail and wire fraud, warranting exclusion of such evidence. U.S. v. Amato, C.A.2(N.Y.) 2008, 540 F.3d 153, certiorari denied 129 S.Ct. 1635, 173 L.Ed.2d 1014. Criminal Law 338(7)

Defendant's prior convictions, two of which involved filing false currency transaction report to conceal her iden-tity from Internal Revenue Service (IRS), and the third of which involved fabricating court orders to escapefrom federal custody, were not too remote in time to be admissible under other acts rule, even though they wereapproximately 15 years old, given their similarities with charged offenses of mail fraud, wire fraud, and moneylaundering, which required government to prove that defendant had intent to defraud and involved allegationsthat defendant provided false tax returns, false profit and loss statements, and forged and fabricated bank lettersand IRS documents, as well as evidence that defendant submitted forged financial documents, to mortgagebroker, lender, and title company to secure loan and purchase property. U.S. v. Edelmann, C.A.8 (Ark.) 2006,458 F.3d 791, rehearing and rehearing en banc denied , habeas corpus dismissed 2011 WL 2517273, affirmed471 Fed.Appx. 278, 2012 WL 2052954. Criminal Law 371.32; Criminal Law 371.38; Criminal Law

373.12; Criminal Law 373.21

In prosecution for interstate transportation of a falsely made security and for causing interstate telephone calls tobe made pursuant to a scheme of securities fraud, trial court did not abuse its discretion in allowing jury to hearevidence of later-attempted transaction in addition to evidence of transaction in issue in view of fact that, whilethe two transactions were completely separate, there was but one overall scheme. U.S. v. Johnson, C.A.5 (Tex.)1983, 700 F.2d 163, on rehearing 718 F.2d 1317. Criminal Law 370.14; Criminal Law 373.22

In prosecution for wire fraud and conspiracy, evidence concerning the existence of a scheme to steal and resellcars which antedated telephone transactions allegedly constituting wire fraud was appropriately introduced toprove an element of the charged offense and was not inadmissible “other crimes” evidence. U. S. v. Nelson,C.A.8 (Minn.) 1978, 570 F.2d 258. Criminal Law 368.26

There was no error in allowing government to present evidence of other crimes to show system and intent inprosecution for conspiring to defraud and for defrauding certain persons through the use of mails and interstatetelephonic communications. U. S. v. Frick, C.A.5 (La.) 1973, 490 F.2d 666, certiorari denied 95 S.Ct. 55, 419U.S. 831, 42 L.Ed.2d 57. Criminal Law 370.8; Criminal Law 370.28; Criminal Law 371.32;Criminal Law 371.52

In prosecution for violation of this section, inducing interstate travel in execution of a fraud, and interstate trans-portation of proceeds of a fraud, and conspiracy, trial court did abuse discretion in failing to make anticipatoryruling that defendants could not be impeached by prior convictions if they testified. U. S. v. Crisona, C.A.2(N.Y.) 1969, 416 F.2d 107, certiorari denied 90 S.Ct. 991, 397 U.S. 961, 25 L.Ed.2d 253, certiorari denied 90S.Ct. 993, 397 U.S. 961, 25 L.Ed.2d 253. Witnesses 337(8)

18 U.S.C.A. § 1343


Evidence of defendant's nonpayment of sales taxes in connection with purported equipment sale-leaseback trans-actions was admissible, as “other act” evidence, to show intent or knowledge, in prosecution for conspiracy tocommit bank fraud and wire fraud, relating to scheme in which defendant assisted in disguising unsecured loansas loans secured by sale and leaseback of new medical equipment; such evidence was offered to show that com-pany set up by defendant as purported seller was a sham company and that company's invoices were false be-cause defendant included a line item for sales tax to make the invoices look like real invoices. U.S. v. RW Pro-fessional Leasing Services Corp., E.D.N.Y.2006, 452 F.Supp.2d 159. Criminal Law 371.32; Criminal Law

371.38; Criminal Law 371.58

177. ---- Pleas, admissibility of evidence, practice and procedure

In prosecution for conspiracy and wire fraud, testimony of coconspirator that he had pled guilty and that, in ex-change for his plea, charges against his wife had been dismissed, was admissible to support the coconspirator'scredibility and to blunt impact of cross-examination, particularly in view of trial judge's caution to jury thatguilty plea could not be used as substantive evidence of defendant's guilt, and in that the government did not un-duly emphasize the plea during closing argument. U.S. v. Melton, C.A.11 (Ga.) 1984, 739 F.2d 576. Witnesses

318

Pleas of guilty by defendants in state court to certain counts of information charging conspiracy and publicationand dissemination of advertisements containing untrue, deceptive, and misleading statements concerning redu-cing pills were admissible in subsequent federal prosecution for mail fraud, false advertising concerning pills bytelevision, and misbranding of drugs as admissions of allegations contained in counts of information to whichthey related, though intent was essential to constitute federal offenses but not state offenses, where state offensesand federal offenses were similar. U. S. v. Andreadis, E.D.N.Y.1965, 238 F.Supp. 802. Criminal Law410.23

178. ---- Photographs, admissibility of evidence, practice and procedure

In prosecution for wire fraud, surveillance photograph of defendant was admissible even though origin of photowas unexplained and despite defendant's contention that jury must have inferred that he was under investigationfor unrelated criminal activities where defendant's counsel elicited testimony that defendant was already knownto postal inspectors at start of investigation. U.S. v. De Biasi, C.A.2 (N.Y.) 1983, 712 F.2d 785, certiorari denied104 S.Ct. 397, 464 U.S. 962, 78 L.Ed.2d 339. Criminal Law 438(3)

179. ---- Similar acts or transactions, admissibility of evidence, practice and procedure

Documents showing that coconspirator had been forced by previous clearing house to get therapy and asked toleave another clearing house that thought he was a danger to clearing firms and futures and options exchangewas irrelevant in prosecution of futures and options trader for wire fraud, since trader did not reach conclusionthat coconspirator was unstable person until after trading at issue. U.S. v. Catalfo, C.A.7 (Ill.) 1995, 64 F.3d1070, rehearing and suggestion for rehearing in banc denied, certiorari denied 116 S.Ct. 1683, 517 U.S. 1192,134 L.Ed.2d 784. Telecommunications 1018(3)

18 U.S.C.A. § 1343


In prosecution of seller of industrial materials and its president for, inter alia, wire fraud, testimony regardinguncharged prior transaction in which buyer was sent a substitute product was relevant to existence of scheme todefraud, an element of the offense of wire fraud, and was therefore independently admissible as direct proof ofscheme charged. U.S. v. Dula, C.A.5 (Miss.) 1993, 989 F.2d 772, certiorari denied 114 S.Ct. 172, 510 U.S. 859,126 L.Ed.2d 131, denial of habeas corpus affirmed 39 F.3d 591. Criminal Law 371.38

In prosecution for “fraud by wire” brought in connection with loan application transaction, evidence of similartransactions allegedly conducted by defendant was admissible on issue of intent and motive. U. S. v. Presler,C.A.4 (N.C.) 1979, 610 F.2d 1206. Criminal Law 371.11; Criminal Law 371.38

Evidence of prior similar acts is admissible to prove elements of knowledge and intent. U. S. v. King, C.A.5(Ala.) 1974, 505 F.2d 602. Criminal Law 371.27; Criminal Law 371.54

Allowing prosecutor to introduce evidence of similar fraudulent acts on part of defendant which had occurredwithin two or three months after time of last act charged in indictment did not constitute reversible error. Mc-Conkey v. U. S., C.A.8 (Minn.) 1971, 444 F.2d 788, certiorari denied 92 S.Ct. 223, 404 U.S. 885, 30 L.Ed.2d168. Criminal Law 1169.11

In prosecution for using interstate wire for purpose of executing fraudulent scheme, specifically in securingcredit for cost of charter flight by misrepresentation that defendant was brother of well known entertainer, testi-mony by one of defendant's guests on chartered trip that defendant had previously invited her on similar tripswas admissible as tending to show pattern of conduct of which crime charged was part. U. S. v. Blassingame,C.A.2 (N.Y.) 1970, 427 F.2d 329, certiorari denied 91 S.Ct. 1629, 402 U.S. 945, 29 L.Ed.2d 114. Telecommu-nications 1018(3)

Evidence of prior acts establishing that a loan was a fraud on bank, that alleged accomplice cashed worthlesschecks at bank, that defendant had been advised that alleged accomplice was a “confidence man” and that de-fendant told alleged accomplice about banking procedures at bank so that alleged accomplice would know howto float nonsufficient fund checks could be properly introduced to show intent, plan and knowledge and was alsoadmissible to refute defendant's testimony that he never knew of other's check kiting operations prior to certaindate. U. S. v. Jones, C.A.9 (Cal.) 1970, 425 F.2d 1048, certiorari denied 91 S.Ct. 44, 400 U.S. 823, 27 L.Ed.2d51. Criminal Law 370.14; Criminal Law 371.38; Criminal Law 371.64

In prosecution of defendant on charges of mail fraud, using fictitious name to defraud, and wire fraud arising outof defendant's buying and selling of records, evidence as to defendant's operation of similar business in anotherstate was admissible on issue of defendant's intent. Fineberg v. U. S., C.A.9 (Cal.) 1968, 393 F.2d 417. CriminalLaw 371.38

Even accepting contention of defendant charged with wire fraud that prior fraud evidence of which was intro-duced at his trial, occurred one year before facts relating to count one in indictment against him, prior fraud con-cerning which evidence was received was not too remote where person involved in prior fraud last saw defend-

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ant in December, 1964, and victim who was allegedly defrauded by defendant whose actions were the subject ofpresent indictment first met him in July or September, 1965. Lowe v. U. S., C.A.8 (Minn.) 1968, 389 F.2d 108,certiorari denied 88 S.Ct. 2072, 392 U.S. 912, 20 L.Ed.2d 1371. Criminal Law 371.38; Criminal Law373.21

Where defendant had allegedly received by wire from prospective borrowers a fee for committing a corporation,which in fact had assets of only a few hundred dollars, to make a $900,000 loan, and loan was never completed,and defendant was prosecuted for fraud committed through interstate communication by wire, evidence of simil-ar transactions in which defendant ostensibly committed same corporation to make a loan, pocketed or attemptedto pocket a commitment fee, but never made loan as agreed was admissible to show defendant's lack of intent tocomplete loan at time he received commitment fee. U. S. v. Deaton, C.A.2 (N.Y.) 1967, 381 F.2d 114. CriminalLaw 371.38

In prosecution for violations of this section and section 1341 of this title, federal district court did not err in ad-mitting proof of similar fraudulent acts and schemes not specifically covered in indictment, where evidence ofthe other offenses tended to establish intent, and district court carefully charged jury that evidence as to other of-fenses was to be considered by jury only for bearing, if any, it might have as to knowledge, intent, motive, orpurpose of any of the defendants and as to existence, if any, of commonly-devised scheme to defraud or obtainmoney by false or fraudulent pretenses, and for no other purposes. Goodman v. U.S., C.A.8 (N.D.) 1960, 273F.2d 853. Criminal Law 371.11; Criminal Law 371.38; Criminal Law 371.64; Criminal Law

673(5)

180. ---- Tapes, transcripts, or wiretaps, admissibility of evidence, practice and procedure

Where city detective operating under cover both consented to recording of his long distance telephone conversa-tion from New York to defendant in Florida and acted under color of state law when he recorded conversation infurtherance of his investigation of defendant for suspected defrauding of telephone company in connection withuse of a “black box” to avoid long-distance toll charges, the interception was valid under federal law and prop-erly admitted in prosecution under this section. U. S. v. Nelligan, C.A.5 (Fla.) 1978, 573 F.2d 251. CriminalLaw 392.21

In prosecution for wire fraud, court did not err in admitting evidence of tape procured by an agent and which al-legedly was one of defendant's sales pitches, since tape had been found in an abandoned office and thus defend-ant could not complain of its seizure and tape was useful in establishing requisite fraudulent intent. U. S. v. Up-tain, C.A.5 (La.) 1977, 552 F.2d 1107, certiorari denied 98 S.Ct. 202, 434 U.S. 866, 54 L.Ed.2d 142. CriminalLaw 438.1

Where telephone company chose to concentrate on facts relevant to circumvention of its billing system ratherthan on total content of telephone communications, and where there was no reasonable hypothesis by whichmore complete monitoring or preservation of monitored communications could have helped defense, court didnot err in receiving tapes made of telephone communications to show that defendant was bypassing the billingsystem, even though the tapes did not include all of defendant's conversations. U. S. v. Glanzer, C.A.9 (Wash.)1975, 521 F.2d 11. Criminal Law 438.1

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In prosecution for wire fraud, introduction of tapes of defendant's voice as recorded by telephone company whileit was investigating defendant's illegal use of “blue box” did not violate defendant's right under U.S.C.A. Const.Amend. 5 to stand mute before the jury. U. S. v. Clegg, C.A.5 (Tex.) 1975, 509 F.2d 605. Criminal Law393(1)

Evidence obtained by telephone company of violation of this section by monitoring telephone lines through aprocess which revealed that long distance calls were being made so as to avoid telephone company's billingequipment had not been procured in violation of section 605 of Title 47, prohibiting persons receiving or trans-mitting interstate communications by wire from divulging the contents except through authorized channels oftransmission or reception, and the evidence was admissible against defendants. Brandon v. U. S., C.A.10 (Okla.)1967, 382 F.2d 607. Criminal Law 392.13(2)

The prosecution is entitled to introduce both a tape recording and a transcript thereof if the original transcript isoffered and a proper foundation laid. Lindsey v. U. S., C.A.9 (Nev.) 1964, 332 F.2d 688. Criminal Law438.1

181. ---- Telephone bills, admissibility of evidence, practice and procedure

In prosecution for wire fraud, telephone bill charging calls between victim and third party was properly admiss-ible in evidence as a business record and in any event, no prejudicial error resulted as both victim and third partytestified such calls were made. U. S. v. King, C.A.8 (Mo.) 1978, 590 F.2d 253, certiorari denied 99 S.Ct. 1538,440 U.S. 973, 59 L.Ed.2d 790. Criminal Law 436(7); Criminal Law 1169.2(7)

182. ---- Telephone conversations, admissibility of evidence, practice and procedure

In prosecution for wire fraud, evidence that, after money orders had been charged to victims' credit card ac-counts, defendant deposited similar amounts of money in bank accounts of two coconspirators involved in wirefraud scheme sufficiently connected defendant to phone calls through which victims were induced to reveal theircredit card numbers to permit introduction of testimony concerning the phone calls. U. S. v. Saavedra, C.A.9(Cal.) 1982, 684 F.2d 1293. Criminal Law 427(5)

Despite defendant's failure to object, for lack of identification of defendant as caller, to introduction of telephoneconversations between employees of victim of scheme and party claiming to be certain individual, reviewingcourt would consider claim that such conversations should have been suppressed where government's case de-pended on and government was required to prove that defendant made such conversations. U. S. v. Zweig, C.A.7(Ind.) 1972, 467 F.2d 1217, certiorari denied 93 S.Ct. 921, 409 U.S. 1111, 34 L.Ed.2d 692. Criminal Law1036.1(3.1)

Admission of various telephone conversations between government witnesses in various parts of country andperson who stated he was representative of auto recovery service was not abuse of discretion in view of instruc-tions that conversations were not binding on defendants charged with fraud by interstate wire unless they wereconnected up with defendants. Spindler v. U. S., C.A.9 (Cal.) 1964, 336 F.2d 678, certiorari denied 85 S.Ct. 894,

18 U.S.C.A. § 1343


380 U.S. 909, 13 L.Ed.2d 797. Criminal Law 673(1)

Admission of testimony relating to substance of telephone conversations had by other persons with accused wasnot abuse of discretion, where although person or persons talking to defendant did not recognize his voice, cred-ible circumstantial evidence showed defendant to be one of persons making or receiving telephone calls. U.S. v.Johnston, C.A.6 (Mich.) 1963, 318 F.2d 288. Criminal Law 386

Testimony of parties to telephone call, identifying the voice of the other, was not requisite to admissibility oftelephone call in prosecution for violation of this section, where both such parties testified to the call. U. S. v.Fassoulis, C.A.2 (N.Y.) 1961, 293 F.2d 243, certiorari denied 82 S.Ct. 240, 368 U.S. 919, 7 L.Ed.2d 134. Crim-inal Law 386

183. ---- Voice identification, admissibility of evidence, practice and procedure

It was proper for defendant to make an in-court statement in wire fraud prosecution so that witness for govern-ment could identify his voice. U. S. v. Buttram, W.D.Pa.1977, 432 F.Supp. 1269, affirmed 568 F.2d 770, certior-ari denied 98 S.Ct. 1646, 435 U.S. 995, 56 L.Ed.2d 84. Criminal Law 393(1)

184. ---- Motive and intent, admissibility of evidence, practice and procedure

Testimony of fraud victim, regarding communications between defendants and members of victim's family andultimate transaction between one codefendant and victim's family, was probative of scheme to defraud, and thuswas admissible in prosecution of defendant for wire fraud and interstate transportation of victim of fraud; specif-ic counts on which defendant was tried clearly charged that acts in question were in furtherance of singlescheme to defraud, and communications and transaction with victim's family constituted integral part of thatscheme. U.S. v. Van Cauwenberghe, C.A.9 (Cal.) 1987, 827 F.2d 424, certiorari denied 108 S.Ct. 773, 484 U.S.1042, 98 L.Ed.2d 859. Kidnapping 34; Telecommunications 1018(3)

In prosecution for mail fraud and wire fraud arising out of activities of loan company whose sales representat-ives made misrepresentations to customers about company's ability to procure large loans for its clients, and whoin most cases, after receiving advance fee from customers, never sent loan applications to potential fundingsources, evidence, including proof that defendant personally made misrepresentations to six customers, andevidence of defendant's active role in company's affairs, was sufficient to support finding that defendant hadcriminal intent. U.S. v. Urban, C.A.8 (Neb.) 1984, 746 F.2d 1345. Postal Service 49(11); Telecommunica-tions 1018(4)

In prosecution for wire fraud relating to settlement agreement with telephone company with interconnectinglines, wherein defendant's defense was that various practices found to be fraudulent were instituted for properreasons prior to the settlement agreement and hence were admissible to show he lacked specific intent to de-fraud, court did not improperly restrict testimony of defendant and other witnesses to the indictment period,where such evidence was admitted elsewhere, issue was fully submitted and argued to jury and defense itself, inclosing argument, stated that testimony introduced described practices that existed prior to indictment period. U.

18 U.S.C.A. § 1343


S. v. Henny, C.A.9 (Wash.) 1975, 527 F.2d 479, certiorari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815.Telecommunications 1018(3)

Where silver contract was used by defendants to bolster faith of would-be borrower in financial standing of alender, it became part and parcel of fraudulent transaction and was relevant as bearing on intent of defendants todefraud by receiving fee or commission for fruitless efforts to obtain loans, and silver contract was admissible inevidence even if it tended to show commission of another offense. U. S. v. Waldo, C.A.10 (Okla.) 1972, 470F.2d 1359. Criminal Law 371.38

In prosecution under this section, inducing interstate travel in execution of a fraud, and interstate transportationof proceeds of a fraud, and conspiracy, trial court did not abuse its discretion in admitting evidence of allegedtheft of dead woman's check to establish that defendants needed proceeds of check to meet substantial and press-ing financial obligation arising from transactions for which defendants were being tried. U. S. v. Crisona, C.A.2(N.Y.) 1969, 416 F.2d 107, certiorari denied 90 S.Ct. 991, 397 U.S. 961, 25 L.Ed.2d 253, certiorari denied 90S.Ct. 993, 397 U.S. 961, 25 L.Ed.2d 253. Criminal Law 368.26

Evidence of financial embarrassment of two corporations in which one defendant was involved was admissibleto show motive for subsequent transaction on which charges of mail fraud, wire fraud and the interstate trans-portation of stolen securities were based. U. S. v. Houlihan, C.A.2 (N.Y.) 1964, 332 F.2d 8, certiorari denied 85S.Ct. 115, 379 U.S. 859, 13 L.Ed.2d 61, certiorari denied 85 S.Ct. 56, 379 U.S. 828, 13 L.Ed.2d 37. CriminalLaw 342

Evidence concerning defendant's misappropriation of 600 million shares of his company was properly admitted,in prosecution for, inter alia, securities fraud, on issue of his intent; evidence that defendant moved those sharesto a nominee account overseas was highly probative of his strong motive to boost his company's stock price sothat he could profit from selling those shares. U.S. v. Abdallah, E.D.N.Y.2012, 840 F.Supp.2d 584, affirmed2013 WL 3198163. Criminal Law 371.38

185. ---- Circumstantial evidence, admissibility of evidence, practice and procedure

Identity of party to telephone conversation may be established by circumstantial evidence. U. S. v. Zweig, C.A.7(Ind.) 1972, 467 F.2d 1217, certiorari denied 93 S.Ct. 921, 409 U.S. 1111, 34 L.Ed.2d 692. Criminal Law386

186. ---- Relevant evidence, admissibility of evidence, practice and procedure

Allowing prosecution to cross-examine defendant charged with wire fraud and conspiracy to commit wire fraud,based upon scheme to buy real property at deflated price, about his sexual relationship with his real estate agentwas not abuse of discretion where defendant's testimony on direct examination suggested that he and agent hadnothing more than business relationship; given such testimony, government was entitled to elicit further testi-mony to show true nature of relationship. U.S. v. Brockenborrugh, C.A.D.C.2009, 575 F.3d 726, 388U.S.App.D.C. 28, rehearing en banc denied. Witnesses 277(4); Witnesses 330(1)

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Fact that some customers who were not named in mail and wire fraud indictment as victims of fraudulent com-modity trading practices might not have felt deceived by defendant's sales presentation was not relevant in de-termining whether conduct was fraudulent, and, thus, trial court did not abuse its discretion in excludingproffered testimony; excluded testimony of other customers would have shifted jury's attention away fromknowledge and intent of defendant and focused instead on beliefs of victims of alleged scheme to defraud. U.S.v. Biesiadecki, C.A.7 (Ill.) 1991, 933 F.2d 539. Postal Service 49(5); Telecommunications 1018(3)

Documents reflecting telephone orders placed by defendant with two of seven clothing manufacturers that werevictims of fraudulent scheme were admissible as direct evidence of scheme to defraud in wire fraud prosecutionarising when defendant placed orders with the manufacturers then later claimed that he had been quoted lowerprices, although orders were not enumerated as separate, dated counts in indictment. U.S. v. Santagata, C.A.1(R.I.) 1991, 924 F.2d 391. Criminal Law 370.14

Evidence regarding value of property which was purchased by nonprofit organization and resold to NationalPark Service was not admissible in wire fraud prosecution of property vendor on theory that Government at leasthad to show that defendant intended to cause actual loss under wire fraud statute, so that without evidence ofpurchased property's value it could not be shown whether defendant intended that organization pay more thanfair market value for property; defendant vendor knew that organization would not buy property without ap-praisal reaching certain conclusions, and intentionally made false representation to appraiser that resulted in ap-praisal partially relying upon false representations. U.S. v. Oren, C.A.9 (Cal.) 1990, 893 F.2d 1057. Telecommu-nications 1018(3)

In prosecution for wire fraud based on defendant's alleged misappropriation of church money it was not abuse ofdiscretion to admit, over relevancy objection, testimony that church's sources of income were Sunday collec-tions, bingo games and a secondhand store. U.S. v. Reed, C.A.8 (Minn.) 1984, 724 F.2d 677. Telecommunica-tions 1018(3)

In prosecution for wire fraud relating to settlement agreement with telephone company with interconnectinglines, evidence was properly excluded for lack of relevance, where much of proffered evidence which related toindustry wide standards was irrelevant because it either postdated relevant time frame or involved reportingpractices of other individual companies pursuant to other types of settlement agreements. U. S. v. Henny, C.A.9(Wash.) 1975, 527 F.2d 479, certiorari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815. Telecommunica-tions 1018(3)

Where prosecution witness in prosecution for wire fraud had testified that his cousin was source of certainfunds, and questions on cross-examination were apparently intended to establish that witness himself was sourceof funds, but source of funds was not relevant to issue of right to shares purchased with such funds and was col-lateral matter, court's exclusion of such questions on witness' claim of privilege against self-incrimination didnot deny defendant his right of confrontation and was not error. U. S. v. Birrell, C.A.2 (N.Y.) 1971, 447 F.2d1168, certiorari denied 92 S.Ct. 675, 404 U.S. 1025, 30 L.Ed.2d 675. Criminal Law 662.6

Where testimony against defendant telephone company employee, who was charged with participation in and

18 U.S.C.A. § 1343


with conspiracy to defraud telephone company and whose motion for judgment of acquittal was granted aftersummation thereby leaving two other defendants in case charged with violation of this section and conspiracy,was properly admitted in the first instance as relevant to issues affecting all parties in case, it was properly leftin case in its entirety as being relevant with respect to conduct of the remaining two defendants whose counselfailed to move to strike any particular part of such testimony. U. S. v. Fincke, C.A.2 (N.Y.) 1971, 437 F.2d 856,certiorari denied 91 S.Ct. 2170, 402 U.S. 995, 29 L.Ed.2d 160. Criminal Law 753.2(8)

Evidence introduced on cross-examination in prosecution for, inter alia, securities fraud, concerning defendant'sfailure to disclose material information to shareholders, including the company's default on $14 in loans, wasproperly admitted to show motive, fraudulent intent, and knowledge; the evidence was highly probative of de-fendant's motive to sell as many of his shares as possible through the alleged fraudulent scheme before news ofthe company's debt-ridden state became publicly known, as well as of his knowledge of the scheme and his in-tent to defraud, and it also allowed government to rebut defendant's argument that he acted in good faith. U.S. v.Abdallah, E.D.N.Y.2012, 840 F.Supp.2d 584, affirmed 2013 WL 3198163. Criminal Law 371.11; CriminalLaw 371.38; Criminal Law 371.64

Any relevance of documents seized from defendant's residence was substantially outweighed by danger of unfairprejudice, and thus exclusion of such documents was warranted in prosecution for conspiracy to commit wirefraud; all but two documents referred only to transactions outside of alleged conspiracy period, references totransactions within period did not connect defendant to charges, and some documents regarding transactions out-side period referred to alleged co-conspirator, who had already pled guilty to charges, and thus could have ledjury to conclude that defendant's relationship with alleged co-conspirator must have continued into period. U.S.v. Ionutescu, D.Ariz.2009, 752 F.Supp.2d 1091. Criminal Law 432

Under Fifth Amendment's protection against self-incrimination, federal defendant's statements made pursuant toimmunity agreement that, by its terms, excepted only perjury-type prosecutions, could not be directly introducedto grand jury in deciding whether to indict defendant for wire fraud and related offenses, regardless of provisionof agreement permitting derivative use of defendant's information to pursue investigative leads and to make“whatever use [government] desires of the information during any proceeding preliminary to an actual trial”;broad derivative-use provision did not authorize direct introduction to grand jury, and separate provision permit-ting any use if defendant was found to have lied required preponderance finding of untruthfulness, which gov-ernment never sought. U.S. v. Ratti, D.Md.2005, 365 F.Supp.2d 649. Criminal Law 42.6; Criminal Law

393(1)

Mere showing that conduct might establish a violation of any number of state laws is irrelevant for purpose ofdetermining whether action of defendant constituted a crime within meaning of this section proscribing one whohas devised or attempted to devise any scheme or artifice to defraud from transmitting or causing to be transmit-ted by wire a communication for purpose of executing such scheme or artifice. U. S. v. Holmes, W.D.Mo.1975,390 F.Supp. 1077. Telecommunications 1014(8)

187. Examination of witnesses, practice and procedure

Prosecution witness's testimony that she had mentioned defendant's name to investigators four years prior to de-

18 U.S.C.A. § 1343


fendant's trial for mortgage and wire fraud could not be used to impugn witness's veracity during closing argu-ments; not only was there no record evidence connecting the delay to witness's credibility, but the record in factindicated that defendant himself caused the delay by changing counsel four times. U.S. v. Brodie,C.A.D.C.2008, 524 F.3d 259, 390 U.S.App.D.C. 66, rehearing en banc denied , certiorari denied 129 S.Ct. 1396,555 U.S. 1204, 173 L.Ed.2d 645, post-conviction relief denied 626 F.Supp.2d 120. Criminal Law 2098(5)

District court did not abuse its discretion in mail and wire fraud trial by asking questions of defendant and de-fense witness about new venture that defendant was attempting to establish. U.S. v. Adedoyin, C.A.3 (N.J.)2004, 369 F.3d 337, certiorari denied 125 S.Ct. 131, 543 U.S. 915, 160 L.Ed.2d 198. Criminal Law 656(2)

Federal district court did not abuse its discretion, in wire fraud/conspiracy prosecution arising from unauthorizedstock options trades, by limiting on grounds of repetition and confusion defendant's cross-examination of super-visory employees at financial services firm that employed codefendant/coconspirator; defendant, who sought toshow that supervisors were aware of codefendant's unauthorized trades, was permitted to conduct substantialcross-examination including codefendant's supervisor's knowledge of certain trades and steps she took to invest-igate them, but cross-examination was cut short when it became repetitive or suggested that firm was to blamefor losses. U.S. v. Callipari, C.A.1 (R.I.) 2004, 368 F.3d 22, vacated 125 S.Ct. 985, 543 U.S. 1098, 160 L.Ed.2d998. Witnesses 282.5

In prosecution for “fraud by wire” brought in connection with loan application transaction, trial court did not im-properly limit defendant's right of cross-examination of victim of the alleged fraud. U. S. v. Presler, C.A.4(N.C.) 1979, 610 F.2d 1206. Witnesses 268(1)

Permitting rebuttal testimony concerning defendant's “prostitution” activities constituted abuse of discretionsince it not only resulted in prosecutorial overkill but also permitted the jury to consider evidence of defendant'sbackground which was wholly unrelated to charges of wire and mail fraud and false statements; such, evidenceadded nothing to the government's case and served only to cater to the passions of the jury and tended to put de-fendant on trial for conduct not in the indictment and prejudiced her chance for a fair trial. U. S. v. McFadyen-Snider, C.A.6 (Tenn.) 1977, 552 F.2d 1178. Criminal Law 338(7)

In prosecution under this section and section 1341 of this title, federal district court did not err in permitting thegovernment on cross-examination of defendant's character witness to inquire about a previous conviction of oneof the defendants for conspiracy, where district court met in chambers with counsel and defendants and ascer-tained to its satisfaction that such defendant had been so convicted. Goodman v. U.S., C.A.8 (N.D.) 1960, 273F.2d 853. Witnesses 274(1)

188. Questions for jury, practice and procedure

Defendant's conviction for wire fraud, in connection with his unauthorized removal of funds from his grand-mother's estate as the administrator of the estate, was not plain error, even though the jury instructions and thespecial verdict form permitted a conviction based on the deprivation of honest services theory, which had beendetermined unconstitutionally vague when applied to conduct other than bribery and kickbacks, and there was

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no evidence of bribery or kickbacks, where the instructions and verdict form also permitted a conviction if thejury found that the defendant had defrauded the heirs of the estate, the jury checked the boxes on the verdictform for both forms of fraud, and it was obvious that the case involved pecuniary fraud. U.S. v. Pelisamen,C.A.9 (N.Mariana Islands)2011, 641 F.3d 399. Telecommunications 1021

Evidence on issue of specific intent, specifically, evidence that defendant made approximately 108 attempts tocomplete telephone calls which would bypass normal billing system, that defendant made use of “blue box” totransmit such calls and knew that the calls would bypass the normal billing system, was for jury in prosecutionfor devising scheme to defraud telephone company by depriving it of money due for long-distance calls. U. S. v.Shaw, C.A.5 (Fla.) 1977, 555 F.2d 1295. Telecommunications 1020

In prosecution under this section prohibiting use of interstate communications to further a preconceived schemeto defraud, the so-called “fraud by wire” this section, evidence presented jury question as to whether defendanthad any actual intent to defraud potential victim of scheme involving offer to sell 300,000 ounces of platinum,despite defendant's contention that, though not technically a victim of entrapment, he was nonetheless “set up”by potential victim of the scheme, who had initially been contacted indirectly by the defendant concerning pro-posed sale, but who immediately notified and cooperated with federal authorities concerning the proposed sale.U. S. v. O'Malley, C.A.10 (Colo.) 1976, 535 F.2d 589, certiorari denied 97 S.Ct. 383, 429 U.S. 960, 50 L.Ed.2d326. Telecommunications 1020

Where government subsequently established connection between calls to victim of fraudulent scheme and de-fendant charged with fraud by interstate wire communication, failure of government to authenticate calls beforeeliciting testimony as to their contents was not plain error and question of authenticity was for jury. U. S. v.Zweig, C.A.7 (Ind.) 1972, 467 F.2d 1217, certiorari denied 93 S.Ct. 921, 409 U.S. 1111, 34 L.Ed.2d 692. Crim-inal Law 736

Whether advertising agency conveyed to defendant corporation and its president agency's knowledge that state-ments made by live endorsers of defendants' purported weight-reducing drug were factually false through liaisonbetween agency and president was jury question, in prosecution for mail fraud and wire fraud. U. S. v. Andread-is, C.A.2 (N.Y.) 1966, 366 F.2d 423, certiorari denied 87 S.Ct. 703, 385 U.S. 1001, 17 L.Ed.2d 541. Telecom-munications 1170

Question whether telephone conversations involved in defrauding finance companies were connected with de-fendants charged with fraud by interstate wire was for jury. Spindler v. U. S., C.A.9 (Cal.) 1964, 336 F.2d 678,certiorari denied 85 S.Ct. 894, 380 U.S. 909, 13 L.Ed.2d 797. Telecommunications 1020

Evidence was sufficient to sustain conviction for fraud by wire even if there was no proof that complaining wit-ness relied on defendant's false representations, although a jury question was presented by the evidence presen-ted as to whether victim did so rely in sending money by wire in interstate commerce. Lindsey v. U. S., C.A.9(Nev.) 1964, 332 F.2d 688. Telecommunications 1018(4)

18 U.S.C.A. § 1343


Whether defendants violated and conspired to violate section 1341 of this title, and violated and conspired to vi-olate this section, were jury questions. U.S. v. Johnston, C.A.6 (Mich.) 1963, 318 F.2d 288. Conspiracy48.1(3); Postal Service 50; Telecommunications 1020

Records of telephone company were sufficient to present jury question as to whether telephone call allegedlyused for purpose of executing scheme to defraud originated in Chicago as contended by government and consti-tuted interstate use of telephone. U. S. v. Green, C.A.6 (Ohio) 1961, 295 F.2d 280, certiorari denied 82 S.Ct.398, 368 U.S. 955, 7 L.Ed.2d 387. Telecommunications 1020

In prosecution for commission of fraud by wire, questions whether defendant had made false representation as toborrower's assets in interstate telephone conversation with lender's agent for purpose of inducing loan andwhether lender relied thereon in making loan were for jury. U.S. v. Hancock, C.A.2 (Vt.) 1959, 268 F.2d 205,certiorari denied 80 S.Ct. 89, 361 U.S. 837, 4 L.Ed.2d 77. Fraud 69(6)

Issue of whether defendant, who was a corporate executive, sought to obtain money and property from corpora-tion by means of materially false and fraudulent pretenses and executed this scheme through the wires and mailswas for the jury in mail and wire fraud prosecution. U.S. v. Hatfield, E.D.N.Y.2010, 724 F.Supp.2d 321, sub-sequent determination 2010 WL 2816326, reconsideration denied in part 2013 WL 4804501. Postal Service50; Telecommunications 1020

Defendants failed to timely request, prior to sentencing hearings, that a jury be empaneled to rule on sentencingissues, and thus, defendants waived claim, on motion for bail pending appeal, that jury should have decided en-hancements under the Sentencing Guidelines, pursuant to United States v. Blakely, which prohibited upwardguidelines adjustments based on judicial fact finding. U.S. v. Munoz Franco, D.Puerto Rico 2005, 356F.Supp.2d 20. Bail 49(2)

Whether defendant charged with mail and wire fraud had a reasonably certain belief that funds would be avail-able for payment of checks he issued on several bank accounts, totaling $159,000, where the balances in suchaccounts totaled $696.08, presented a question for the jury and not for the court. U. S. v. Gilliam, C.D.Cal.1967,273 F.Supp. 507. Postal Service 50; Telecommunications 1020

189. Instructions, practice and procedure

District Court did not abuse its discretion, in defendant's prosecution for wire fraud, by failing to instruct jurythat interstate component of wire must be reasonably likely or foreseeable; there was no mens rea requirementwith regard to jurisdictional, interstate nexus of defendant's actions under wire fraud statute, which required onlythat defendant used or cause the use of interstate wires in furtherance of his scheme to defraud his employer, andgovernment proved each element of offense. U.S. v. Jinian, C.A.9 (Cal.) 2013, 725 F.3d 954. Telecommunica-tions 1021

In prosecution for conspiracy to commit bank and wire fraud, bank fraud, and wire fraud, district court did notabuse its discretion in giving abbreviated form of defendant's requested good faith instruction, even though re-

18 U.S.C.A. § 1343


quested instruction was more detailed; given instruction essentially tracked Eighth Circuit's model good faithjury instruction for fraud cases, and instead of showing that instruction given was inadequate, jury's request forcourt to further define good faith could also be construed as demonstrating that instructions did in fact directjury's attention to that defense. U.S. v. Engelmann, C.A.8 (Iowa) 2013, 720 F.3d 1005. Criminal Law834(3)

Deliberate ignorance instruction was warranted in prosecution for conspiracy to commit mail and wire fraud,substantive wire fraud, conspiracy to commit money laundering, and promotional money laundering; defendants'defense was to deny any knowledge of fraudulent scheme, on numerous occasions, defendants notarized docu-ments signed outside their presence, and notarized statements that same borrower would primarily reside at nu-merous addresses, despite that documents came before them in quick succession, defendants were on notice ofpotential problems associated with these practices, defendants disbursed funds on liens claimed in financialstatements without verifying existence of these liens, and allowed funds to be pulled out of mortgage loans pro-ceeds. U.S. v. Kennedy, C.A.5 (Miss.) 2013, 707 F.3d 558, certiorari denied 133 S.Ct. 2779, 186 L.Ed.2d 227,certiorari denied 133 S.Ct. 2785, 186 L.Ed.2d 227. Conspiracy 47(5); Criminal Law 772(5)

Court's giving of erroneous deliberate ignorance instruction to jury was harmless in prosecution for conspiracyto commit wire fraud, based upon defendant's participation in a fraudulent contracting scheme; instruction wasnot necessary, since evidence that defendant was an essential player in orchestrating the fraud, that he shuttledother participants to and from meetings, assented to receiving a portion of the kickbacks from the fraudulentcontracts, and advised on the amount of “good faith” money to be paid to a co-conspirator, all demonstrated thatdefendant had actual knowledge of the fraudulent contracting scheme. U.S. v. Roussel, C.A.5 (La.) 2013, 705F.3d 184. Criminal Law 1172.1(3)

District court's failure to instruct jury to consider codefendant's post-arrest statements only with respect to code-fendant, and that such statements could not be imputed to defendant, was subject to plain error review on appeal,given defendant's failure to object to district court's jury instructions or to request that court give specific, clari-fying instruction. U.S. v. Javell, C.A.7 (Ill.) 2012, 695 F.3d 707. Criminal Law 1038.2; Criminal Law1038.3

Even though defendant could not have lawfully been convicted of honest-services fraud, it was not open to reas-onable doubt that a reasonable jury would have convicted defendant of pecuniary fraud in the absence of honest-services fraud instruction, and, therefore, trial court's error in submitting honest-services instruction to the juryin defendant's prosecution for wire fraud was harmless; core of the case against defendant was that he aided andabetted a janitors' team's scheme to defraud the State of Illinois of its money, in the form of thousands of dollarsin salaries paid for no work, by helping to perpetuate and cover it up, and the honest-services fraud theory wasthus entirely premised upon the money/property fraud. Turner v. U.S., C.A.7 (Ill.) 2012, 693 F.3d 756. CriminalLaw 1172.1(4.3)

District court did not abuse its discretion in providing willful blindness instruction, that jury could infer know-ledge of conspiracy if it found that defendant had “deliberately closed his eyes to what would otherwise havebeen obvious to him,” in defendant's trial on charges of conspiracy to commit wire fraud and money laundering,

18 U.S.C.A. § 1343


where, among other things, defendant had received payment without supervising any work. U.S. v. Clay, C.A.8(Ark.) 2010, 618 F.3d 946, rehearing and rehearing en banc denied , certiorari denied 131 S.Ct. 1540, 179L.Ed.2d 309, denial of post-conviction relief affirmed 720 F.3d 1021. Conspiracy 48.2(2); Criminal Law

772(5)

Evidence in prosecution for, inter alia, wire fraud and conspiracy to commit wire fraud established single con-spiracy with sole objective of fraudulently acquiring parcel of real property, even though conspirators mighthave tried to achieve their goal in different ways, and defendant was significantly involved from start to finish,even though he might not have participated in every step of conspiracy, and therefore requested instruction re-quiring jury to consider whether the evidence supported existence of multiple conspiracies was not required.U.S. v. Brockenborrugh, C.A.D.C.2009, 575 F.3d 726, 388 U.S.App.D.C. 28, rehearing en banc denied. Con-spiracy 48.1(3)

In prosecution for wire fraud, in which district court gave “ostrich” jury instruction on conscious or deliberateavoidance, the jury was appropriately instructed that it could not convict absent a finding that defendant actedknowingly, and thus, the court was not required to instruct the jury that mere negligence in discovering the truthwas not sufficient to infer knowledge; the district court gave several instructions regarding knowledge and in-tent, and the instructions as a whole made it clear that the government had to prove that defendant knowinglyparticipated in the fraudulent scheme, and there was no evidence that the defendant was merely negligent. U.S.v. Ramirez, C.A.7 (Ill.) 2009, 574 F.3d 869. Telecommunications 1021

Jury instruction that the fact that information may be found publicly if one knows where to look does not makethe information “public” for securities trading purposes unless it is readily available, broadly disseminated, orthe like correctly stated the relevant principles in securities fraud and wire fraud case in which defendants werealleged to have unlawfully traded in various securities on the basis of material confidential information that de-fendant had misappropriated and then shared with codefendant for the purpose of trading, where law enforce-ment reports that defendant misappropriated were not themselves public in any practical sense, even if some ofthe sources from which they were compiled could be accessed by the public, and the manner in which the in-formation was combined in the reports was itself nonpublic and helped inform its relevance for trading purposes.U.S. v. Royer, C.A.2 (N.Y.) 2008, 549 F.3d 886, certiorari denied 130 S.Ct. 83, 558 U.S. 934, 175 L.Ed.2d 237,certiorari denied 130 S.Ct. 85, 558 U.S. 935, 175 L.Ed.2d 237. Securities Regulation 194; Telecommunica-tions 1021

Jury instruction, by defining a Ponzi scheme, did not constructively amend indictment by effectively eliminatingthe mens rea element from the wire fraud offense; discussion of Ponzi scheme merely served to define the par-ticular type of “scheme to defraud” that defendant was alleged to have perpetrated, and court went on to reem-phasize the mens rea requirement in defining what it meant to “act with an intent to defraud.” U.S. v. Edwards,C.A.11 (Ga.) 2008, 526 F.3d 747. Indictment And Information 159(2)

Conscious avoidance charge was appropriate in wire fraud prosecution, where defendant asserted that he did notknow that his statements were false and government introduced evidence that defendant was aware of high prob-ability that information he gave about status of funding of real estate development was false, and if he did not

18 U.S.C.A. § 1343


actually know that information was false, it was only because he deliberately avoided confirming his suspicion.U.S. v. Carlo, C.A.2 (N.Y.) 2007, 507 F.3d 799. Criminal Law 772(5); Telecommunications 1014(3)

In instructing jury on issue of codefendant's guilt for wire fraud under aiding and abetting theory, district courtcould rely upon instruction that was verbatim reading of aiding and abetting statute, which was not challengedas incorrect, and did not have to give additional cautionary instructions that conviction under aiding and abettingtheory could not be based upon codefendant's general knowledge or suspicion that crime was being committedor his mere association with defendant, the alleged principal. U.S. v. Shellef, C.A.2 (N.Y.) 2007, 507 F.3d 82.Criminal Law 792(3)

Defendants, a dog track's chief executive officer (CEO) and its general manager, were not entitled to jury in-struction explaining difference between forbidden efforts to deprive the public of honest services and permiss-ible gifts to public officials, which merely express friendship and assure a warm welcome, in prosecution forwire fraud, and conspiracy to commit wire fraud, in scheme to defraud citizens of Rhode Island of honest ser-vices of public officials, absent evidence that defendants contemplated small gifts, rather than payment of mil-lions of dollars, or that the payments were made for anything other than to influence public officials. U.S. v. Pot-ter, C.A.1 (R.I.) 2006, 463 F.3d 9. Conspiracy 48.2(2); Telecommunications 1021

In wire fraud prosecution, district court's failure to charge jury that it must be unanimous as to which particularfraudulent wire transfer, if any, that the prosecution had proven beyond a reasonable doubt was not reversible er-ror, where jury received standard instruction as to unanimity. U.S. v. Dupre, C.A.2 (N.Y.) 2006, 462 F.3d 131,certiorari denied 127 S.Ct. 1026, 549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S.1151, 166 L.Ed.2d 773, habeas corpus denied 2012 WL 2953970. Criminal Law 872.5; Criminal Law1173.2(1)

Instruction did not improperly read requirements of wire fraud statute in disjunctive by defining “any scheme orartifice to defraud” as meaning a plan, device, or course of action that deprives another of money or property bymeans of false or fraudulent pretenses, representations, or promises or, in other words, as a plan to deprive an-other of money or property by trick, deceit, deception, swindle or overreaching. U.S. v. Males, C.A.2 (N.Y.)2006, 459 F.3d 154. Telecommunications 1021

Prosecutor's closing-argument statement in wire fraud prosecution of wood chip dealer, that “if a man is willingto cheat a little bit over here, wouldn't he be willing to cheat just a little bit over here,” based on “other acts”evidence including taped conversation in which defendant told laboratory employee that “[w]e're selling just alittle bit of water,” was designed to show propensity and thus required curative instruction telling jury to rejectimplication of propensity to cheat, informing jury that propensity evidence is generally improper, and informingjury that other acts evidence was admissible only to prove intent. U.S. v. Brown, C.A.9 (Alaska) 2003, 327 F.3d867. Criminal Law 673(5)

In prosecution, based on rebate program, for mail and wire fraud and conspiracy to commit mail and wire fraud,jury instructions adequately defined terms “scheme or artifice to defraud” and “material” representations; in-structions specified that materiality was to be considered in reference to what a reasonable person would con-

18 U.S.C.A. § 1343


sider important. U.S. v. Fredette, C.A.10 (Wyo.) 2003, 315 F.3d 1235, dismissal of habeas corpus affirmed 65Fed.Appx. 929, 2003 WL 1795858, certiorari denied 123 S.Ct. 2100, 538 U.S. 1045, 155 L.Ed.2d 1084, dis-missal of post-conviction relief affirmed 191 Fed.Appx. 711, 2006 WL 2277989. Criminal Law 800(1)

Defendant who admitted his false representations, false pretenses, and pasting of victim's signatures on docu-ments was not entitled to good faith instruction in wire fraud prosecution; defendant did not interpose good faithdefense, did not request instruction, and, given admissions, evidence did not support it. U.S. v. Janusz, C.A.10(Colo.) 1998, 135 F.3d 1319. Criminal Law 772(6)

Requisite intent to defraud under wire fraud statute existed if defendant acted “knowingly and with specific in-tent to commit fraud”; district court's instruction to that effect was not improper, on theory that district courtshould have substituted the word “willfully” for “knowingly.” U.S. v. Ismoila, C.A.5 (Tex.) 1996, 100 F.3d 380,rehearing denied, certiorari denied 117 S.Ct. 1712, 520 U.S. 1219, 137 L.Ed.2d 836, certiorari denied 117 S.Ct.1858, 520 U.S. 1247, 137 L.Ed.2d 1060. Telecommunications 1014(3); Telecommunications 1021

Where difference between lawful and unlawful acts of lobbyist turns primarily on intent, and lobbyist's lawfulconduct is itself most unattractive, jury needs to be told specifically that defendant has not violated bribery com-ponent of Travel Act, or committed honest-services fraud, if lobbyist's intent was limited to cultivation of busi-ness or political friendship; only if instead or in addition, there is intent to cause recipient to alter official acts,may jury find theft of honest services or bribery predicate of Travel Act. U.S. v. Sawyer, C.A.1 (Mass.) 1996, 85F.3d 713. Commerce 82.10; Lobbying 9

District court did not commit reversible error by refusing defendant's proposed good-faith instruction in wirefraud prosecution; court's charge adequately conveyed concept of good faith to the jury, in that it allowed con-viction only if defendant “knowingly and willfully devised or intended to devise or join a scheme to defraud”;moreover, defense counsel's closing argument remarks put concept of good faith and innocent motive before thejury. U.S. v. St. Gelais, C.A.5 (Tex.) 1992, 952 F.2d 90, certiorari denied 113 S.Ct. 439, 506 U.S. 965, 121L.Ed.2d 358. Criminal Law 829(3)

Jury was properly instructed in wire fraud prosecution for scheme to attract bank brokered funds from third per-sons that jury could convict if bank was defrauded of its right to have custody of funds or right to make its owndecisions as to how funds were to be used. U.S. v. Simpson, C.A.10 (Okla.) 1991, 950 F.2d 1519. Telecommu-nications 1021

Evidence supported giving of jury instruction providing that wire transfer of funds from Illinois bank to NewYork bank or Austrian bank constituted transmission by means of wire communication in interstate or foreigncommerce within meaning of wire fraud statute; there was abundant evidence that funds were electronicallytransferred into New York banks for ultimate transfer to Austrian banks and such interstate fund transfers consti-tuted “wire communications” under wire fraud statute. U.S. v. Strickland, C.A.7 (Ill.) 1991, 935 F.2d 822, certi-orari denied 112 S.Ct. 324, 502 U.S. 917, 116 L.Ed.2d 265, habeas corpus denied , certiorari denied 112 S.Ct.884, 502 U.S. 1036, 116 L.Ed.2d 787, post-conviction relief denied , affirmed 191 F.3d 456, certiorari denied120 S.Ct. 1446, 529 U.S. 1031, 146 L.Ed.2d 333. Telecommunications 1021

18 U.S.C.A. § 1343


Instruction on mail and wire fraud statutes comported with law regarding evidentiary role of material omissionsof defendant charged with mail and wire fraud and did not allow jury to rely solely on mere omissions in light ofample evidence of affirmative misrepresentations and general assumption that instructions are followed. U.S. v.Biesiadecki, C.A.7 (Ill.) 1991, 933 F.2d 539. Postal Service 50; Telecommunications 1021

Trial court did not err in giving “ostrich” instruction, informing jury that actual knowledge and deliberate avoid-ance of knowledge were the same thing, in mail and wire fraud prosecution, in light of defendants' claims thatthey were simply gullible, and did not realize fraudulent nature of loan brokering scheme in which they particip-ated. U.S. v. Ramsey, C.A.7 (Ill.) 1986, 785 F.2d 184, certiorari denied 106 S.Ct. 2924, 476 U.S. 1186, 91L.Ed.2d 552. Postal Service 50; Telecommunications 1021

In prosecution for conspiracy to commit wire fraud, trial court did not abuse its discretion in refusing to give in-struction after receiving evidence of defendants' involvement in another transaction, which was requested by oneof the defendants but which manifestly intended to present that defendant's construction of the evidence as op-posed to the government's. U.S. v. Multi-Management, Inc., C.A.9 (Mont.) 1984, 743 F.2d 1359. Criminal Law

783(1)

In prosecution for violation of this section and section 1341 of this title, trial court, which instructed that goodfaith was a complete defense to the charges, that an honest belief by defendant that he would ultimately performwhat he had promised was not itself a defense and that it was no defense to the crimes charged that not all of thepersons with whom defendant dealt in his business were defrauded, properly instructed jury on intent issue. U.S.v. Alexander, C.A.7 (Ill.) 1984, 743 F.2d 472. Postal Service 50; Telecommunications 1021

Despite contention that modified jury instructions indicated that government abandoned midstream its originaltheory premised on inflating shipping charges for broader one premised on general disloyalty through undis-closed conflicts, there was no substantial deviation of wire fraud instructions from indictment, where proposedinstruction merely made explicit that either object of scheme to defraud was sufficient and indictment gavewarning that government might argue for verdict based on deprivation of employee loyalty. U.S. v. Lemire,C.A.D.C.1983, 720 F.2d 1327, 232 U.S.App.D.C. 100, certiorari denied 104 S.Ct. 2678, 467 U.S. 1226, 81L.Ed.2d 874. Criminal Law 814(5)

In prosecution for causing interstate telephone calls to be made pursuant to a scheme of securities fraud, districtcourt judge's instructions to jury that telephone calls were wire signals as a matter of law, although improper,would not be considered on appeal in view of fact that defendant did not request that issue be submitted to juryand did not on appeal assign instruction as error. U.S. v. Johnson, C.A.5 (Tex.) 1983, 718 F.2d 1317. CriminalLaw 1038.2; Criminal Law 1129(1)

In prosecution for wire fraud and obstruction of justice, district court acted within its discretion in admittingmemorandum which described certain activities of defendants, where court gave limiting instruction whichstated that memorandum was not received to show truth of the statements reported in it and that memo couldonly be considered in connection with obstruction of justice count and not on the wire fraud counts, since cau-tionary instruction was adequate to enable jury to limit its consideration of the memo to purpose for which it was

18 U.S.C.A. § 1343


offered. U.S. v. Siegel, C.A.2 (N.Y.) 1983, 717 F.2d 9. Criminal Law 419(12)

Trial court in prosecution for aiding and abetting in commission of wire fraud properly excluded defendant's re-quested jury charges on intent, since they were not supported by law and evidence. U.S. v. Terebecki, C.A.11(Ala.) 1982, 692 F.2d 1345. Criminal Law 772(5)

Defendant's requested instructions on his “good faith” defense to charges of wire fraud and false pretenses,crimes that required proof of intent to defraud, were sufficiently covered by trial court's instructions emphasiz-ing government's burden of proving element of specific intent beyond reasonable doubt. U. S. v. Gambler,C.A.D.C.1981, 662 F.2d 834, 213 U.S.App.D.C. 278. Criminal Law 829(4)

Instruction stating that a “statement or representation is ‘false or fraudulent’ * * * if known to be untrue, ormade with reckless indifference as to its truth or falsity, and made or caused to be made with the intent of de-ceive” was not error, in prosecution for mail and wire fraud. U. S. v. Federbush, C.A.9 (Cal.) 1980, 625 F.2d246. Postal Service 50; Telecommunications 1021

As regarded extortion defense of corporate officer who was charged with violations of this section and section1952 of this title in connection with alleged bribes of city officials to secure a sludge-hauling contract for hiscorporation, the distinction between economic loss and gain made by trial court's extortion defense instructiondid not prompt the jury to reject the defense out of hand on the ground that the admitted object of the paymentswas to complete the sludge-hauling project and thereby gain a profit; furthermore, even under the simplistic con-struction of the loss-gain distinction alleged by defendant, an economic “loss” would have occurred if, as al-leged by defendant, the payments were in part motivated by a desire to avoid assessment of liquidated damages.U. S. v. McPartlin, C.A.7 (Ill.) 1979, 595 F.2d 1321, certiorari denied 100 S.Ct. 65, 444 U.S. 833, 62 L.Ed.2d 43. Bribery 14

In prosecution for wire fraud, trial court did not err in refusing to instruct jury that a mistake of law was a com-plete defense, in view of fact that trial court submitted instruction that apprised jury that willfulness required“specific intent to do something the law forbids; that is to say, with a purpose either to disobey or to disregardthe law.” U. S. v. Louderman, C.A.9 (Cal.) 1978, 576 F.2d 1383, certiorari denied 99 S.Ct. 257, 439 U.S. 896,58 L.Ed.2d 243. Criminal Law 829(4)

Where the evidence supports such an instruction, a defendant who is charged with wire fraud is entitled to an in-struction covering good faith. U. S. v. Westbo, C.A.10 (Colo.) 1978, 576 F.2d 285. Postal Service 50;Telecommunications 1021

In prosecution for conspiracy to violate this section and section 1341 of this title, any arguable shortcomings inthe court's exposition of reckless conduct had no bearing on the guilty verdicts, since the court inadvertently in-structed the jury, in effect, that criminal intent is always a required element to be proved, and since the jury thushad to find criminal intent in order to convict. U. S. v. Smith, C.A.6 (Tenn.) 1977, 561 F.2d 8, certiorari denied98 S.Ct. 487, 434 U.S. 958, 54 L.Ed.2d 317, certiorari denied 98 S.Ct. 524, 434 U.S. 972, 54 L.Ed.2d 461, certi-

18 U.S.C.A. § 1343


orari denied 98 S.Ct. 741, 434 U.S. 1019, 54 L.Ed.2d 766, certiorari denied 98 S.Ct. 897, 434 U.S. 1048, 54L.Ed.2d 800. Criminal Law 823(4)

In prosecution for mail fraud, wire fraud, sale of unregistered securities, and aiding and abetting, in connectionwith alleged securities fraud scheme, claim that “promoter” instruction improperly permitted jury to infer fraudfrom breach of an inapplicable fiduciary responsibility was without basis, since jury was instructed to considercharge as a whole and, throughout charge to jury, judge reiterated that actual fraud, defined in terms of specificintent and willfulness, was necessary to support a conviction. U. S. v. Pollack, C.A.D.C.1976, 534 F.2d 964, 175U.S.App.D.C. 227, certiorari denied 97 S.Ct. 324, 429 U.S. 924, 50 L.Ed.2d 292. Postal Service 50; Secur-ities Regulation 194; Telecommunications 1021

Since franking privilege is irrelevant to settlement agreements between telephone companies with interconnect-ing lines, it was proper to refuse to instruct jury on such privilege, in prosecution for wire fraud. U. S. v. Henny,C.A.9 (Wash.) 1975, 527 F.2d 479, certiorari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815. Telecommu-nications 1021

District judge did not err in instructing jury that any defendant “already found guilty of conspiracy” could befound guilty of wire fraud if he made a telephone call “in furtherance of the unlawful scheme to defraud allegedin the indictment” notwithstanding defense contention that the words “in furtherance” instead of “in execution”constituted a fatal variance. U. S. v. Aloi, C.A.2 (N.Y.) 1975, 511 F.2d 585, certiorari denied 96 S.Ct. 447, 423U.S. 1015, 46 L.Ed.2d 386. Telecommunications 1021

Instruction concerning circumstantial evidence in prosecution for conspiring to defraud and for defrauding cer-tain persons through the use of mails and interstate telephonic communications was not erroneous. U. S. v.Frick, C.A.5 (La.) 1973, 490 F.2d 666, certiorari denied 95 S.Ct. 55, 419 U.S. 831, 42 L.Ed.2d 57. Criminal Law

784(4)

Instructions in prosecution for violating federal provisions against mail and wire fraud adequately emphasizedthat defendants must knowingly have made false representations and did not equate false and misleading repres-entations with fraud. U. S. v. Caine, C.A.2 (N.Y.) 1971, 441 F.2d 454, certiorari denied 92 S.Ct. 59, 404 U.S.827, 30 L.Ed.2d 55. Postal Service 50; Telecommunications 1021

Defendant's objection to jury charge on essential element of intent to defraud under this section on grounds thatit permitted jury to infer essential elements of intent to deceive from acts of doing something was specificenough for district court to perceive basis of objection and complied with requirements of rule that objectingparty state distinctly a matter to which he objects and ground of his objections. Henderson v. U. S., C.A.5 (Tex.)1970, 425 F.2d 134. Criminal Law 844(1)

Charge on intent in prosecution for violation of this section, inducing interstate travel in execution of a fraud,and interstate transportation of proceeds of a fraud, and conspiracy, and for mail fraud was not erroneous forfailure to state that crimes had to be proved beyond reasonable doubt, in view of judge's prior instructions. U. S.

18 U.S.C.A. § 1343


v. Crisona, C.A.2 (N.Y.) 1969, 416 F.2d 107, certiorari denied 90 S.Ct. 991, 397 U.S. 961, 25 L.Ed.2d 253, cer-tiorari denied 90 S.Ct. 993, 397 U.S. 961, 25 L.Ed.2d 253. Criminal Law 823(15)

Instructions properly covered essential elements of federal mail and wire fraud, and interstate transportation offunds obtained by fraud. U. S. v. Hoffman, C.A.7 (Ill.) 1969, 415 F.2d 14, certiorari denied 90 S.Ct. 431, 396U.S. 958, 24 L.Ed.2d 423. Postal Service 50; Telecommunications 1021

In prosecution of defendant for mail fraud, using fictitious name to defraud, and wire fraud arising out of de-fendant's operation of record buying and selling business, there was presumption that jury understood and fol-lowed court's instructions which limited jury's consideration of evidence as to defendant's previous operation ofrecord buying and selling business to issue of the defendant's intent. Fineberg v. U. S., C.A.9 (Cal.) 1968, 393F.2d 417. Criminal Law 1144.15

Charge as whole in connection with prosecution for mail fraud, wire fraud, conspiracy to defraud and misbrand-ing protected all of defendants' rights and did not eliminate from jury's consideration presumption of defendants'innocence or requirement that guilt be proved beyond reasonable doubt as asserted by defendants on appeal. U.S. v. Andreadis, C.A.2 (N.Y.) 1966, 366 F.2d 423, certiorari denied 87 S.Ct. 703, 385 U.S. 1001, 17 L.Ed.2d541. Criminal Law 822(1)

Court properly refused requested charge which in effect instructed jury that if defendants, charged with viola-tions of this section and with conspiracy arising out of transaction whereby they attempted to procure large sumof money from father of party they claimed stole jewelry, thought that party had stolen jewelry it would not bestatutory violation to attempt its recovery. Huff v. U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certiorari denied 83S.Ct. 289, 371 U.S. 922, 9 L.Ed.2d 230. Telecommunications 1021

Instruction given by court, in prosecution for violation of this section and sections 1341 and 1342 of this titleand for conspiracy, regarding defendants' participation in procuring passage of ordinance, was not, when con-sidered in light of issues litigated, misleading to jury. Isaacs v. U. S., C.A.8 (Minn.) 1962, 301 F.2d 706, certior-ari denied 83 S.Ct. 32, 371 U.S. 818, 9 L.Ed.2d 58, certiorari denied 83 S.Ct. 33, 371 U.S. 818, 9 L.Ed.2d 58.Conspiracy 48.2(2); Postal Service 50; Telecommunications 1021

Instructions as a whole in prosecution for devising a scheme to defraud by wire were not erroneous on theorythat they might have misled jury into believing burden was upon defendant to establish his innocence, or on the-ory that defendant's vital interest in outcome of the case was overemphasized in instructions on credibility ofwitnesses. Rizzo v. U. S., C.A.8 (Mo.) 1961, 295 F.2d 638. Criminal Law 822(11); Criminal Law822(14)

In prosecutions of five separate indictments, consolidated for trial, and charging use of mails and interstate tele-phones to defraud insurance companies, where one of the defendants had confessed and his confession whichimplicated other defendants was introduced in evidence, instruction of court that in every case where you find averdict of guilty against anybody you will have to find a verdict of guilty also against another defendant, who

18 U.S.C.A. § 1343


had not confessed, was clearly erroneous. Belvin v. U.S., C.A.5 (Fla.) 1960, 273 F.2d 583. Criminal Law781(4)

In prosecution for unlawfully devising a scheme or artifice to defraud by the use of wire, radio or television, in-struction that after joint scheme had once been established, declarations of one conspirator could be taken as adeclaration of every other member of the conspiracy, or the other member in this case, just the same as thoughthe other member made it, was not erroneous on any theory that it opened up for jury's speculation possibilitythat defendant might also have been guilty of substantive crime of conspiracy. Kumpe v. U. S., C.A.5 (Tex.)1957, 250 F.2d 125. Criminal Law 779

In prosecution for wire fraud, there was no evidentiary support for a good-faith defense, and thus, defendant wasnot entitled to jury instruction on his good-faith theory of defense; defendant stipulated that he did not own themines for which he solicited investments, that he had no mineral rights to those mines, that he cheated his in-vestors and lenders out of at least $325,375, and that he made a number of false representations to victims, andevidence at trial established that defendant represented to lenders that he owned or had mineral rights to themines and that their funds would be used for the purpose of mining, and that defendant instead used the victims'funds for his own benefit and the benefit of his family. U.S. v. Washburn, N.D.Iowa 2012, 862 F.Supp.2d 871,affirmed 2013 WL 4516646. Telecommunications 1021

Instructions given to jury at defendant's trial on charges of interstate wire fraud, international money laundering,Violation of Racketeer Influenced and Corrupt Organizations Act (RICO), and conspiracy to violate RICO didnot result in plain error, so as to warrant new trial; instructions stated law accurately and included standard in-structions on each element of charges in indictment, government submitted abundance of evidence from whichjury could have concluded that defendant was guilty of all seven counts listed in indictment, and it was im-possible that any error in instructions seriously affected the fairness, integrity, or public reputation of the pro-ceedings. U.S. v. Kim, D.Conn.2004, 303 F.Supp.2d 150. Criminal Law 1038.1(4)

Defendant failed to show he was prejudiced by jury instructions at wire fraud trial that allegedly failed to in-struct that government was required to prove beyond a reasonable doubt that fraud affected a financial institu-tion, and that failed to define “financial institution,” where court did instruct that to convict defendant, jury hadto find beyond reasonable doubt that he had engaged in a fraudulent scheme that affected a financial institution,and defendant had stipulated prior to trial that defrauded entity was a financial institution for purposes of wirefraud statute. Bouyea v. U.S., D.Conn.2003, 263 F.Supp.2d 403, affirmed 121 Fed.Appx. 923, 2005 WL 481659.Telecommunications 1021

In prosecution for mail and wire fraud based on alleged fraud in probate of an estate, trial court's instruction ongood faith defense accurately recited level of intent government had to prove to establish the mail and wire fraudcharges and adequately conveyed the substance of the good faith theory to jury, and therefore defendant's pro-posed separate instruction regarding the good faith defense was unnecessary. U.S. v. Howard, D.D.C.2003, 245F.Supp.2d 24. Criminal Law 829(4)

Wire and mail fraud defendant's “risk-free” misrepresentations to induce investments into defendant's invest-

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ment companies for purported placement in risk-free high-yield investment program were in furtherance of onlyone scheme to defraud, rather than dual layers of fraud, and thus instruction on culpable participation element ofwire and mail fraud charges was not warranted. U.S. v. Blood, C.A.3 (Del.) 2007, 232 Fed.Appx. 199, 2007 WL2310025, Unreported. Postal Service 50; Telecommunications 1021

190. Jury deliberations, practice and procedure

Given the unsettled law on meaning of “proceeds” within meaning of concealment prong of federal money laun-dering statute, district court did not commit plain error when it did not limit the jury's consideration of“proceeds” of the charged wire fraud to the net profits of an internet fraud scheme in money laundering prosecu-tion based on defendant's transmission of funds to his Romanian co-schemers after the expenses of paying offhis U.S. co-schemers had been deducted. U.S. v. Aslan, C.A.7 (Ill.) 2011, 644 F.3d 526, appeal after new sen-tencing hearing 497 Fed.Appx. 626, 2012 WL 6013815. Criminal Law 1038.1(4)

Trial court impermissibly trespassed upon jury's fact-finding prerogative in trial of defendant for wire fraud,when, in response to jury's query concerning dates of alleged conversations between defendant and victim, courtrefused to have critical testimony read to jury as requested by defense counsel, but rather informed jury as tosubstance of testimony, which gave appearance that judge certified testimony as true. U.S. v. Argentine, C.A.1(Me.) 1987, 814 F.2d 783. Criminal Law 864

In prosecution for fraud by wire and aiding and abetting fraud by wire, court's refusal to immediately furnish atranscript of defendant's testimony to jury upon their request was not error. U. S. v. Olsen, C.A.8 (Neb.) 1978,589 F.2d 351, certiorari denied 99 S.Ct. 1237, 440 U.S. 917, 59 L.Ed.2d 468. Criminal Law 859

Employer was not entitled to enjoin implementation of Virgin Islands Wrongful Discharge Act on grounds Actviolated procedural due process; employer failed to show reasonable probability of success on merits with re-gard to facial challenges and its as-applied challenge was required to await administrative resolution. GeneralOffshore Corp. v. Farrelly, D.Virgin Islands 1990, 743 F.Supp. 1177. Injunction 1302

Although defendants, charged with conspiracy to commit wire fraud, wire fraud, conspiracy to commit moneylaundering, and money laundering, were Muslims of Arabic descent, there was no reversible error in districtcourt refusing defendants' request for voir dire inquiry into possible racial or ethnic prejudice; there was no evid-ence of racial or ethnic issues inextricably bound up with conduct of trial, crimes at issue did not involve racialor religious issues, and to voir dire on subject out of context would have injected issue not germane to trial. U.S.v. Shalhout, D.Virgin Islands 2012, 280 F.R.D. 223, affirmed 507 Fed.Appx. 201, 2012 WL 6581619. CriminalLaw 1166.16

191. Substitution of jurors, practice and procedure

District court's acceptance of prosecution's race neutral explanation, in response to defendants' Batson challenge,for striking two black venire members, a car-washer and an assembly line worker, when prosecution failed tostrike two white venire members, a warehouse manager who completed a year of junior college and a land-

18 U.S.C.A. § 1343


scaper, that prosecution was seeking to compose jury with higher level of education and sophistication for com-plex wire fraud case, was not clear error; district court had advantage of actually being present to observe theprosecuting attorney as well as venire members. U.S. v. Kennedy, C.A.5 (Miss.) 2013, 707 F.3d 558, certioraridenied 133 S.Ct. 2779, 186 L.Ed.2d 227, certiorari denied 133 S.Ct. 2785, 186 L.Ed.2d 227. Jury 33(5.15)

Even though it would have been advisable for trial court to have substituted alternate juror for juror who en-gaged in conversation with victim of wire fraud, district court's failure to substitute alternate juror was notclearly erroneous, where conversation between juror and victim was innocuous and trial court, after interviewingboth juror and victim, found no prejudice to defendant. U. S. v. Bohr, C.A.8 (Mo.) 1978, 581 F.2d 1294, certior-ari denied 99 S.Ct. 361, 439 U.S. 958, 58 L.Ed.2d 351. Criminal Law 1174(5)

192. Weight and sufficiency of evidence, practice and procedure--Generally

Sufficient evidence supported defendant's wire fraud conviction; defendant held significant administrative posi-tion with agency, software company employed defendant's husband creating a conflict of interest, defendant act-ively participated in agency's internal deliberations regarding possibility of expanding software and scope ofwork with company, and defendant forwarded internal agency e-mail about those deliberations to husband andcompany. U.S. v. Selby, C.A.9 (Or.) 2009, 2009 WL 102711, withdrawn and superseded 557 F.3d 968. Tele-communications 1018(4)

There was sufficient evidence that defendant's filing of false tax returns exposed banks that issued refund anti-cipation loans (RALs) in reliance on the returns to an increased risk of loss, as required to support defendant'sconviction for fraud by wire affecting a financial institution, even if the bank did not actually lose any money ona certain RAL, where the risk of loss from defendant's fraudulent returns was 79.9% compared to a 1% generalrate of loss from non-fraudulent returns. U.S. v. Stargell, C.A.9 (Cal.) 2013, 725 F.3d 1015. Telecommunica-tions 1018(4)

Sufficient evidence established that defendant, president of the county commission, defrauded the public of hishonest services by accepting bribes he did not disclose to the public, as required to support his convictions formail fraud and wire fraud; as president of county commission defendant was conferred with public authority tochose which investment banking firm would perform the county's work, defendant chose co-defendant's firm toperform county's financial transactions, in exchange defendant received thousands of dollars' worth of clothingand jewelry from firm's partner along with large cash payments in form of bogus loans, in receiving the valuableitems defendant caused the use of mails and wires, defendant did not disclose that he had received these valu-ables from firm's partner, and fees paid to firm were generally not disclosed to county. U.S. v. Langford, C.A.11(Ala.) 2011, 647 F.3d 1309, certiorari denied 132 S.Ct. 1121, 181 L.Ed.2d 1000. Postal Service 49(11);Telecommunications 1014(10)

Evidence was insufficient to sustain convictions for wire fraud and securities fraud arising from investments so-licited by scheme company's agent; government failed to adduce evidence that defendant caused agent to makefalse statements to prospective investors. U.S. v. Lewis, C.A.10 (Colo.) 2010, 594 F.3d 1270, certiorari denied130 S.Ct. 3441, 177 L.Ed.2d 347. Securities Regulation 199; Telecommunications 1018(4)

18 U.S.C.A. § 1343


E-mail sent to police officer from his superior, requesting that officer prepare evidence to be given to FederalBureau of Investigation (FBI) did not make possible or facilitate alleged fraudulent scheme by police officer todefraud the city police department and the citizens out of the right to honest services of the evidence officer ofthe police department to preserve the integrity of evidence being stored in connection with criminal investiga-tions and prosecutions, and thus did not support officer's conviction of wire fraud, in that the officer did notcause the e-mail to be sent. U.S. v. Dooley, C.A.7 (Ill.) 2009, 578 F.3d 582. Telecommunications 1014(6)

In wire fraud proceedings alleging that defendant defrauded the Veterans Administration of $32,100 for com-panion care services that were never provided, evidence was sufficient to support finding that payment instruc-tions flowed from the Treasury in Maryland to the Federal Reserve Bank in Texas on the dates charged, as re-quired to sustain defendant's wire fraud conviction; a Treasury representative testified as to the standard proced-ure for processing payments on behalf of the Veterans Administration and there was no evidence of deviationfrom standard practice. U.S. v. Ratliff-White, C.A.7 (Ill.) 2007, 493 F.3d 812, certiorari denied 128 S.Ct. 1070,552 U.S. 1141, 169 L.Ed.2d 808. Telecommunications 1018(4)

Government established use of interstate wires in support of conviction for wire fraud, given evidence that insti-tution which held funds of lender from whom defendant fraudulently obtained loan had relationships with vari-ous banks across United States that held their funds in-house, that transfers of lender's funds went through clear-inghouse for wires and all wired funds went through Federal Reserve, and that institution's local office did nothold cash in any form, as well as evidence that lender's request for wire transfer went to, and was processed in,another state. U.S. v. Edelmann, C.A.8 (Ark.) 2006, 458 F.3d 791, rehearing and rehearing en banc denied ,habeas corpus dismissed 2011 WL 2517273, affirmed 471 Fed.Appx. 278, 2012 WL 2052954. Telecommunica-tions 1014(2)

Evidence that defendant leased apartment for nonprofit, federally funded agency to pay living expenses while heattended university as full-time graduate student supported his conviction for acting in furtherance of illegalscheme to defraud government, regardless of whether he had authority to open office for agency. U.S. v. Burns,C.A.2 (Vt.) 1997, 104 F.3d 529. Telecommunications 1018(4)

Evidence was sufficient to establish that defendant, a bank officer, knew that codefendant who received loan forher car rental business had submitted false documentation, as required to support wire fraud conviction; defend-ant had previously arranged for bank to hire codefendant as consultant and had arranged to have her manufac-ture false financial documents to support already funded loan, was extensively involved in loans to codefendantand caused bank to fund both loans. U.S. v. Allen, C.A.5 (Tex.) 1996, 76 F.3d 1348, certiorari denied 117 S.Ct.113, 519 U.S. 838, 136 L.Ed.2d 65, certiorari denied 117 S.Ct. 121, 519 U.S. 841, 136 L.Ed.2d 71. Telecommu-nications 1018(4)

Evidence that defendant knowingly submitted false documents to automobile dealership in effort to obtain leaseand was always late on her lease payments because she could not afford the automobile was sufficient to estab-lish defendant's attempt to defraud, as required to support wire fraud conviction. U.S. v. Horry, C.A.6 (Mich.)1995, 49 F.3d 1178. Telecommunications 1018(4)

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Evidence was sufficient to support wire fraud conviction based on scheme fraudulently to obtain proceeds ofbearer bonds. U.S. v. Keats, C.A.2 (N.Y.) 1991, 937 F.2d 58, certiorari denied 112 S.Ct. 399, 502 U.S. 950, 116L.Ed.2d 348, post-conviction relief denied 856 F.Supp. 162, affirmed 50 F.3d 3. Telecommunications1018(4)

Evidence that defendant, a corporate vice-president, did not identify creditor with security interest in corpora-tion's accounts receivable on application form for factoring and assured factoring company that creditor did nothold security interests in accounts receivable when it discovered creditor's UCC filing covering those accountsduring course of payments by wire transfer was sufficient evidence of scheme to defraud by false representationsfor purposes of wire fraud prosecution. U.S. v. Drake, C.A.10 (Kan.) 1991, 932 F.2d 861. Telecommunications

1018(4)

Evidence that defendant lulled German bank into belief that its ownership of airplane was secure by procedurehe suggested, that defendant then sold airplane without paying or notifying German bank and that defendantcaused payment to be transferred by wire from Wisconsin bank to Illinois bank was sufficient to support defend-ant's conviction of wire fraud. U.S. v. Mueller, C.A.7 (Wis.) 1986, 786 F.2d 293. Telecommunications1018(4)

Evidence was sufficient to establish that defendant made false representations in telephone conversations to mailorder company that he was representative of state special investigation unit, thus supporting conviction for wirefraud. U.S. v. Pritchard, C.A.7 (Ill.) 1985, 773 F.2d 873, certiorari denied 106 S.Ct. 860, 474 U.S. 1085, 88L.Ed.2d 899. Telecommunications 1018(4)

Evidence in prosecution of five defendants for wire fraud in connection with stowaway scheme, including testi-mony concerning circumstances of wire transmission, and introduction of telegram itself, supported convictionsof sender and receiver of telegram, however, convictions for other three defendants for wire fraud were contin-gent upon their guilt of conspiracy charge. U.S. v. Johnson, C.A.11 (Ga.) 1983, 713 F.2d 633, certiorari denied104 S.Ct. 1447, 465 U.S. 1081, 79 L.Ed.2d 766. Telecommunications 1018(4)

Evidence in defendant's prosecution for wire fraud in relation to scheme to profit from bets on races involvinghorses drugged by coconspirators under defendant's direction, including evidence that telephone calls before de-fendant and individual under direction of defendant discussed ways of executing fraudulent scheme, was suffi-cient to support jury finding of guilty notwithstanding defendant's argument that purpose of calls was to termin-ate and not to further any scheme. U.S. v. Griffin, C.A.11 (Fla.) 1983, 699 F.2d 1102. Telecommunications1018(4)

Absent objection, jury could consider hearsay testimony for whatever value it might have, and evidence includ-ing second-hand admission together with other evidence was sufficient to support conviction on wire fraudcount charging that defendant employee agreed with another defendant to defraud such employee's employer bycausing to be transmitted by wire certain false credits to account of such other defendant and that, in return, suchother defendant paid employee certain amounts of United States currency in violation of this section. U.S. v.Hamilton, C.A.5 (Tex.) 1982, 694 F.2d 398. Telecommunications 1018(3)

18 U.S.C.A. § 1343


Evidence showing that $60,000 wired to one conspirator was his share of money taken from investors in fraudscheme was sufficient to establish wire fraud. U.S. v. Becker, C.A.5 (Tex.) 1978, 569 F.2d 951, rehearing denied576 F.2d 931, certiorari denied 99 S.Ct. 188, 439 U.S. 865, 58 L.Ed.2d 174, certiorari denied 99 S.Ct. 726, 439U.S. 1048, 58 L.Ed.2d 708. Telecommunications 1018(4)

Evidence that defendants used wires to further their fraudulent scheme by making false statements and lullinginvestors was sufficient to support conviction for wire fraud; proxy statements and 10-Ks, and other communica-tions, included false statements, by commission or omission, as to defendants' personal use of aircraft and theircompensation, and one defendant omitted mentioning that he had a personal investment in a company in whichhis employer invested. U.S. v. Wittig, D.Kan.2006, 425 F.Supp.2d 1196, reversed 472 F.3d 1247, on remand247 F.R.D. 661. Telecommunications 1018(4)

193. ---- Circumstantial evidence, weight and sufficiency of evidence, practice and procedure

Evidence, particularly eyewitness testimony contradicting defendant's version of events, defendant's alteration ofhis story on a number of occasions, and testimony of Veterans Affairs (VA) special agent that defendant madenumerous conflicting statements during investigation of his claims for veterans' benefits, was sufficient to sup-port conviction of wire fraud in connection with defendant's scheme to defraud the government by making falsestatements in an effort to obtain more than $320,000 in veterans' benefits. U.S. v. Roberts, C.A.7 (Wis.) 2008,534 F.3d 560, rehearing en banc denied , certiorari denied 129 S.Ct. 1028, 555 U.S. 1139, 173 L.Ed.2d 297.Telecommunications 1018(4)

Circumstantial evidence of defendant's willful blindness to fraudulent nature of trust was legally sufficient tosupport element of guilty knowledge necessary to sustain convictions for conspiracy, wire fraud, and moneylaundering; trust had strong aura of unreality, defendant provided plethora of false excuses to lull customers intobelieving their money was forthcoming, defendant, who was an attorney and certified public accountant, admit-ted that by distributing advance fees to coconspirators he was violating contractual obligations and ethical dutyto hold funds until they had received loans, and defendant had strong financial motive. U.S. v. Anderskow,C.A.3 (N.J.) 1996, 88 F.3d 245, certiorari denied 117 S.Ct. 613, 519 U.S. 1042, 136 L.Ed.2d 537. Telecommu-nications 1018(4)

Evidence indicated that defendant intended to defraud his patients when he told them that he could cure theircancer so as to establish intent to defraud element required for wire fraud conviction; defendant claimed that hecould diagnose cancer with plastic pendulum and photograph, defendant extracted hundreds of thousands of dol-lars from his patients which he insisted be paid in cash and defendant told patients that they were cancer free fol-lowing their treatments. U.S. v. Keller, C.A.5 (Tex.) 1994, 14 F.3d 1051, rehearing denied. Telecommunications

1018(4)

Equivocating response made in the form of a mail gram concerning inquiry about series of unpaid checks wasnot sufficient to support wire fraud conviction concerning a wholly separate incident of unauthorized withdrawalof fuel by fuel dealer; it was not sent for purpose of executing fraudulent scheme charged in indictment. U.S. v.Iorizzo, C.A.2 (N.Y.) 1986, 786 F.2d 52. Telecommunications 1014(6)

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Circumstantial evidence, including testimony that telephone was used in connection with all shipments of grainmade on behalf of company, was sufficient, for purposes of showing violation of this section, to permit an infer-ence that an interstate telephone communication was made in connection with a particular fraudulent grain ship-ment. U. S. v. Martin, C.A.10 (Colo.) 1979, 611 F.2d 801, certiorari denied 100 S.Ct. 1036, 444 U.S. 1082, 62L.Ed.2d 766. Telecommunications 1018(4)

Circumstantial evidence as to particular defendant's knowledge of counterfeit character of security at time it waspledged to bank was sufficient to support conviction for mail fraud, wire fraud and making false statements to afederally insured bank, but evidence was insufficient to link that defendant to a conspiracy for distribution ofstolen and counterfeit securities. U. S. v. Morrow, C.A.5 (Fla.) 1976, 537 F.2d 120, rehearing denied 541 F.2d282, certiorari denied 97 S.Ct. 1602, 430 U.S. 956, 51 L.Ed.2d 806. Conspiracy 47(5); Conspiracy47(6)

Regardless of the sufficiency of “direct” evidence to sustain the conviction, there was sufficient circumstantialevidence to sustain defendant's conviction on one conspiracy count and on a number of substantive counts of vi-olation of the Securities Exchange Act of 1934, section 78a et seq. of Title 15, and this section and section 1341of this title. U. S. v. D'Honau, C.A.9 (Cal.) 1972, 459 F.2d 73, certiorari denied 93 S.Ct. 149, 409 U.S. 861, 34L.Ed.2d 108. Conspiracy 47(5); Postal Service 49(11); Securities Regulation 199; Telecommu-nications 1018(4)

Defendant's position in a three-man, one-product, one-advertisement operation, giving rise to prosecution for vi-olation of provisions against mail and wire fraud supported inference of knowledge on his part that scheme wasfraudulent. U. S. v. Caine, C.A.2 (N.Y.) 1971, 441 F.2d 454, certiorari denied 92 S.Ct. 59, 404 U.S. 827, 30L.Ed.2d 55. Postal Service 49(11); Telecommunications 1018(2)

194. ---- Conspiracy, weight and sufficiency of evidence, practice and procedure

Evidence was sufficient for reasonable jury to conclude that defendants had engaged in illegal conspiracy to de-fraud potential investors, as required to convict them of conspiracy to commit mail and wire fraud, where de-fendants offered target billions of dollars in fake U.S. Treasury notes as collateral for large loan; although lie onbehalf of conspirators seemed ridiculous in retrospect, target had been convinced enough to vet deal with hiscolleagues. U.S. v. Corsey, C.A.2 (N.Y.) 2013, 723 F.3d 366. Conspiracy 47(5)

Sufficient evidence demonstrated numerous misrepresentations, thus supporting defendant's convictions for se-curities fraud, wire fraud, and conspiracies to commit those crimes, arising from his role as executive for finan-cial company; although bonds' governing documents fully contemplated limited pro forma funding, that narrowclass of funding hardly opened door to unrestrained advances secured by nothing at all, and company made othermisrepresentations relating to its reserve accounts, concentration limits, and receivables-aging, as well as out-right falsifications churned out each month by its compliance department. U.S. v. Faulkenberry, C.A.6 (Ohio)2010, 614 F.3d 573, on remand 759 F.Supp.2d 915. Conspiracy 47(4); Conspiracy 47(5); SecuritiesRegulation 199; Telecommunications 1018(4)

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Conviction for conspiracy to commit wire fraud arising from fraudulent investment scheme was supported bypurported coconspirator's testimony that defendant was involved with codefendant in earlier, similar investmentscheme and that some of the money from scheme had been diverted to defendant's personal use, and by evidencethat investors in scheme underlying conviction deposited or wired money directly to defendant's bank accountand that defendant received approximately $2,200,000 from company involved in scheme, that defendant main-tained frequent contact with codefendant who was leader of company via telephone and facsimile transmissions,and evidence that defendant presented himself as experienced international investor with special contacts atseminars attended by potential investors. U.S. v. Dazey, C.A.10 (Okla.) 2005, 403 F.3d 1147, appeal after newsentencing hearing 242 Fed.Appx. 563, 2007 WL 2201841. Conspiracy 47(5)

Conviction for mail and wire fraud was supported by evidence that coconspirator had wired money to defendantin Haiti to fund murder of defendant's wife, that defendant associated law firm for purpose of fraudulently col-lecting insurance proceeds on wife, and that defendant acted with knowledge that law firm had to use mail in as-sisting him in collecting proceeds in ordinary course of business. U.S. v. Wharton, C.A.5 (La.) 2003, 320 F.3d526, certiorari denied 123 S.Ct. 2288, 539 U.S. 916, 156 L.Ed.2d 132. Postal Service 49(11); Telecommu-nications 1018(4)

Evidence was sufficient to establish that scheme to defraud existed as element of wire fraud arising out of al-leged conspiracy to kill horses for pay, allowing horses' owners to collect insurance proceeds; government intro-duced sufficient evidence to establish conspiracy to kill horse, and that conspiracy members knew that purposeof killing was to defraud insurance company. U.S. v. Lindemann, C.A.7 (Ill.) 1996, 85 F.3d 1232, rehearing andsuggestion for rehearing en banc denied, certiorari denied 117 S.Ct. 392, 519 U.S. 966, 136 L.Ed.2d 307. Tele-communications 1018(4)

In prosecution for conspiracy to defraud by means of interstate wire communications and for substantive of-fenses, evidence sustained conviction for substantive offenses notwithstanding contention that there was noproof that particular defendant was member of conspiracy when substantive offenses occurred. U. S. v. Waldo,C.A.10 (Okla.) 1972, 470 F.2d 1359. Telecommunications 1018(4)

Evidence was sufficient to support defendants' convictions for honest services mail and wire fraud and conspir-acy to commit honest services fraud and extortion; evidence showed that at first defendant's suggestion, corpora-tion seeking state Department of Education (DOE) contract made monthly retainer payments to law-practice as-sociate of second defendant, who was Speaker of state House of Representatives, and defendants and coconspir-ator who worked for corporation discussed potential contracts and coconspirator gave Speaker talking points touse on corporation's behalf, and Speaker used one of those arguments in effort to influence DOE Commissionerto award contract to corporation, and Speaker worked consistently and successfully to provide funding for con-tracts corporation wanted and ultimately received. U.S. v. DiMasi, D.Mass.2011, 810 F.Supp.2d 347, affirmed2013 WL 4459062. Conspiracy 47(3.1); Conspiracy 47(5); Extortion 39(2); Postal Service49(12); Telecommunications 1014(10)

Evidence was insufficient to show that defendant was member of alleged conspiracy or that he was knowledge-able that subject real property sale was to involve wire fraud, and thus was insufficient to sustain his conviction

18 U.S.C.A. § 1343


for wire fraud in connection with sale, under either Pinkerton or aiding and abetting theory; only apparent con-nection defendant had with subject sale was introducing parties involved and ultimately selling property to al-leged conspirator, with cash back to another alleged conspirator. U.S. v. Ionutescu, D.Ariz.2009, 752 F.Supp.2d1091. Conspiracy 47(5); Telecommunications 1018(4)

Evidence that defendant admitted to special agent he knowingly assisted colleague, as her mortgage broker, inpreparing loan applications for purchase of three residential properties which he knew to contain false informa-tion, that he admitted to agent to having signed loan application for one of properties, and that closing agents foreach of properties were apprehensive about transactions with defendant, in that agents found certain aspects oftransactions highly unusual, was sufficient to support defendant's conviction for conspiracy to defraud. U.S. v.Washington, D.Kan.2010, 724 F.Supp.2d 1122, affirmed 634 F.3d 1180, certiorari denied 132 S.Ct. 300, 181L.Ed.2d 182. Conspiracy 32

Evidence established that defendant entered into agreement, or had tacit understanding, to commit bank fraudand wire fraud, as element of conspiracy; defendant worked almost exclusively, on daily basis, with co-defendant's company which acted as broker for loans for medical professionals' acquisition of new medicalequipment, and a sham company controlled by defendant operated almost identically to a sham company set upby co-defendant to disguise unsecured loans as loans secured by sale and leaseback of new medical equipment.U.S. v. RW Professional Leasing Services Corp., E.D.N.Y.2006, 452 F.Supp.2d 159. Conspiracy 47(4);Conspiracy 47(5)

Prosecution failed to establish by preponderance of evidence that government employee committed offense ofconspiracy to commit honest services wire fraud by providing internal confidential intelligence and strategic ad-vice to lobbyist regarding how to control two government properties, and thus lobbyist's e-mails to employee re-garding properties were not admissible in prosecution against employee for obstruction of justice as non-hearsaystatements of co-conspirator, where employee was not charged with conspiracy to commit honest services wirefraud, steps necessary to reach conclusion that employee committed honest services fraud would require court toconduct mini-trial within trial, and e-mails in question contained either redundant information or informationthat could be testified to by lobbyist. U.S. v. Safavian, D.D.C.2006, 435 F.Supp.2d 36. Criminal Law427(5)

195. ---- Intent, weight and sufficiency of evidence, practice and procedure

Evidence was sufficient to prove that defendant entered into sham consulting agreement with state legislator topay fees in exchange for legislator's commitment to assist defendant's company in his official capacity as specif-ic opportunities arose, as would support convictions for honest services mail and wire fraud and bribery; com-munications between legislator and defendant tied consulting payments to legislator's use of his official influ-ence at state level with high-ranking state government officials, and defendant failed to disclose the consultingagreements, which showed deliberate attempt to conceal corrupt relationship or consciousness of guilt. U.S. v.Rosen, C.A.2 (N.Y.) 2013, 716 F.3d 691. Bribery 11; Postal Service 49(11); Telecommunications

1018(4)

Government's evidence that, in exchange for $20,000 in side payments from co-defendant, mortgage loan officer

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knowingly processed seven fraudulent loan packages and forwarded them on to lenders with intent that theywould provide mortgage funding was sufficient to establish intent to defraud, as required to support officer'sconviction for wire fraud. U.S. v. O'Connor, C.A.7 (Ill.) 2011, 656 F.3d 630, certiorari denied 132 S.Ct. 2373,182 L.Ed.2d 1024. Telecommunications 1018(4)

Jury's finding that defendant intended to defraud his victims, in prosecution for wire fraud and aiding and abet-ting wire fraud, was supported by sufficient evidence which included testimony of defendant's co-directors in-dicating that defendant had formed and directed illegal investment scheme through use of several corporate en-tities, that the corporations had inability to pay investors, and that contrary to its representations to investors,corporation never conducted home mortgage operations. U.S. v. Aldridge, C.A.7 (Ill.) 2011, 642 F.3d 537. Tele-communications 1018(4)

Evidence was sufficient to prove defendant's intent to defraud his grandmother's estate, as required to supportconvictions for wire fraud and conspiracy to commit wire fraud, defendant's signature as the administrator of theestate appears above his attorney's signature on virtually all of the checks that were written to himself, to hiswife, to the attorney, and to a car dealership using funds from the estate. U.S. v. Pelisamen, C.A.9 (N.MarianaIslands)2011, 641 F.3d 399. Telecommunications 1018(4)

Evidence of intent to defraud was sufficient to support convictions for wire fraud, causing interstate travel in ex-ecution of a scheme to defraud, engaging in monetary transactions in criminally derived property, and conspir-acy to commit money laundering; there was overwhelming evidence, including nine witnesses' descriptions ofthe misrepresentations that induced them to invest, that the essence of the scheme was to obtain investor monieswith no intent to invest it as promised, and to divert a substantial portion of it to defendant's personal use. U.S.v. Brown, C.A.8 (Mo.) 2010, 627 F.3d 1068, rehearing and rehearing en banc denied , certiorari denied 132S.Ct. 274, 181 L.Ed.2d 163. Conspiracy 47(3.1); Telecommunications 1018(4); United States 34

Sufficient evidence demonstrated that defendant, as executive of financial company, knew about wire fraud andwillfully participated in it, thus supporting his conviction for wire fraud; defendant's job responsibilities placedhim in close proximity to fraud, defendant took no action when informed by other executives that company hadmade misrepresentations to investors, and defendant provided false information to investors during presenta-tions, requested falsified data from another executive and for truthful slide to be removed from presentations, at-tended meetings at which falsification of investor reports was discussed, and personally authorized advances ofinvestor funds. U.S. v. Faulkenberry, C.A.6 (Ohio) 2010, 614 F.3d 573, on remand 759 F.Supp.2d 915. Tele-communications 1018(4)

Evidence of defendant's intent to defraud was sufficient to support her conviction for wire fraud based on fraud-ulent scheme that enabled persons with weak credit to obtain loans that paid entire purchase price of homes andgave them money back; there was evidence that company owned by defendant received $10,000 at closing of acharged home purchases without performing any services, and although defendant testified she earned $10,000by referring participant in scheme to down-payment lender, he denied that she did, and defendant had previouslyparticipated in fraudulent loan for her own home mortgage by signing purchase agreement overstating home'sprice, falsely denying having obtained down-payment loan on loan application, and receiving over $12,000 in

18 U.S.C.A. § 1343


loan proceeds for her own purposes. U.S. v. Caldwell, C.A.10 (Okla.) 2009, 560 F.3d 1214. Telecommunica-tions 1018(4)

Sufficient evidence supported defendant's wire fraud conviction; defendant held significant administrative posi-tion with agency, software company employed defendant's husband creating a conflict of interest, defendant act-ively participated in agency's internal deliberations regarding possibility of expanding software and scope ofwork with company, and defendant forwarded internal agency e-mail about those deliberations to husband andcompany. U.S. v. Selby, C.A.9 (Or.) 2009, 557 F.3d 968. Telecommunications 1018(4)

Evidence that defendant made false statements to the Department of Veterans Affairs (VA) in an effort to obtainveterans' benefits was sufficient to support conviction of wire fraud in connection with defendant's scheme todefraud the government by making false statements in an effort to obtain more than $320,000 in veterans' bene-fits, even if record might also have supported a jury determination that defendant sincerely believed that hisstatements were true and that he had no intention to defraud the government. U.S. v. Roberts, C.A.7 (Wis.)2008, 534 F.3d 560, rehearing en banc denied , certiorari denied 129 S.Ct. 1028, 555 U.S. 1139, 173 L.Ed.2d297. Telecommunications 1018(4)

Evidence of defendant's intentional participation in fraudulent scheme to obtain real estate loans through falserepresentations was sufficient to support conviction for mail fraud and wire fraud; defendant selected straw buy-ers based on their credit histories, took them to meetings with mortgage brokers, supplied brokers with criticaldocuments for obtaining loan approval, told buyers where to sign forms, bribed a broker to increase probabilityof loan approval, and provided straw buyer with identification required to assume a stolen identity, and fundsgained at a property closing were deposited into account in defendant's control. U.S. v. Radziszewski, C.A.7(Ill.) 2007, 474 F.3d 480, amended on denial of rehearing. Postal Service 49(11); Telecommunications

1014(8)

Sufficient evidence established that defendant had requisite knowledge and criminal intent, supporting her con-viction for wire fraud and conspiracy to commit wire fraud; witnesses testified that defendant personally soli-cited money from investors promising a 500-to-1 return and sent messages reassuring investors of legitimacy ofinvestment scheme, defendant had reason to doubt legitimacy of scheme based on information provided by in-vestors, defendant withdrew investor funds for her own personal use, and defendant knew coconspirator used in-vestor funds for her personal use. U.S. v. Dupre, C.A.2 (N.Y.) 2006, 462 F.3d 131, certiorari denied 127 S.Ct.1026, 549 U.S. 1151, 166 L.Ed.2d 773, certiorari denied 127 S.Ct. 1030, 549 U.S. 1151, 166 L.Ed.2d 773,habeas corpus denied 2012 WL 2953970. Conspiracy 47(5); Telecommunications 1018(4)

Evidence was sufficient to establish that defendant intended to defraud victim when he induced victim to givehim money supposedly to be invested in bank reserve funds, as element of wire fraud; bank records detailedtransactions involved, law professor with expertise in commercial and financial fraud examined documents andagreements between victim and defendant and his associates and testified defendant's scheme had many hall-marks of a prime investment scam, and chairman of Cayman Islands bank where victim's $2 million were depos-ited testified that only defendant and his associate had access to account. U.S. v. Baldwin, C.A.7 (Ill.) 2005, 414F.3d 791. Telecommunications 1018(4)

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Evidence supported finding that defendant intentionally participated in conspiracy to commit wire fraud, giventhat defendant developed founding documents for fraudulent investment company and forms used for agree-ments with investors, made presentations at staff meetings in which he described how investment program oper-ated and estimated potential return on investment, was introduced to prospective investors as company's certifiedpublic accountant (CPA), was involved in creating bank accounts used to deposit investor money and waspresent at meeting in which codefendant indicated that accounts were used to make it difficult to trace transac-tions, recruited investors into program, and repaid one unsatisfied investor with funds he had solicited from an-other investor. U.S. v. Dazey, C.A.10 (Okla.) 2005, 403 F.3d 1147, appeal after new sentencing hearing 242Fed.Appx. 563, 2007 WL 2201841. Conspiracy 47(5)

There was sufficient evidence that mortgage broker office manager knew he was providing false information onmortgage application to support conviction for wire fraud affecting financial institutions; manager overstatedbuyer's income and assets, manager falsely stated that buyer intended to live in property and would providedownpayment, and that buyer's company had $65,000 on hand, and manager accepted $6,500 from co-defendant.U.S. v. Berkley, C.A.7 (Ill.) 2003, 333 F.3d 776, amended on denial of rehearing. Telecommunications1018(4)

Evidence supported convictions for mail fraud and wire fraud, based on phoney prize redemption scheme, des-pite defendant's contention that she lacked intent to defraud; defendant lied about nature of business to answer-ing service, opened bank accounts with social security number she knew was false, received victims' checks atpost office box and then deposited the money and wrote many checks for cash, forwarded complaints from vic-tims of telephone prize redemption scheme to her boss, sent form letters to complaining parties stating that prizeawards would be delayed, used an alias when one victim reached her personally, and told witnesses she wasplanning to go to Mexico. U.S. v. Smith, C.A.6 (Tenn.) 1994, 39 F.3d 119. Postal Service 49(11); Tele-communications 1018(4)

Evidence supported conclusion that defendant had conscious knowing intent to defraud in connection with wiretransfer of funds to a corporation she controlled, which transfer was one of various transactions between defend-ant and controlled corporations and between such corporations; knowledge could be assumed from majorityshareholder status in corporations, active role she took in their affairs, financial benefits which accrued fromtransactions, role of transactions within larger fraud alleged against defendant, denial of existence of one of cor-porations involved, and cover-up activities. U.S. v. Dale, C.A.D.C.1993, 991 F.2d 819, 301 U.S.App.D.C. 110,rehearing denied, certiorari denied 114 S.Ct. 286, 510 U.S. 906, 126 L.Ed.2d 236, certiorari denied 114 S.Ct.650, 510 U.S. 1030, 126 L.Ed.2d 607. Telecommunications 1018(2); Telecommunications 1018(4)

In prosecution of seller of industrial materials and its president, there was sufficient evidence of president's in-tent to defraud to support his wire fraud convictions, regardless of sequence and timing of subject phone calls;corporate employees accepted telephone purchase orders and supplied substitute products. U.S. v. Dula, C.A.5(Miss.) 1993, 989 F.2d 772, certiorari denied 114 S.Ct. 172, 510 U.S. 859, 126 L.Ed.2d 131, denial of habeascorpus affirmed 39 F.3d 591. Telecommunications 1018(4)

Evidence was sufficient to show intent to defraud necessary for wire fraud conviction in connection with com-

18 U.S.C.A. § 1343


modities trading in light of defendant's own testimony that he agreed during interstate telephone conversationsto make margin payment that he knew he could not make. U.S. v. Clausen, C.A.8 (Minn.) 1986, 792 F.2d 102,certiorari denied 107 S.Ct. 202, 479 U.S. 858, 93 L.Ed.2d 133. Telecommunications 1018(4)

Evidence that defendant made extravagant claims for his energy multiplier showed an intent to defraud thosewho invested in his corporation. U. S. v. Cusino, C.A.9 (Cal.) 1982, 694 F.2d 185, certiorari denied 103 S.Ct.2096, 461 U.S. 932, 77 L.Ed.2d 305. Telecommunications 1018(4)

Evidence, including testimony of defendant's accomplice that defendant's true intention was to get advancemoney from submarine theft scheme and then flee to Canada, was sufficient to support fraud by wire convictionof defendant, who contended that government failed to show intent to defraud. U. S. v. Mendenhall, C.A.8 (Mo.)1979, 597 F.2d 639, certiorari denied 100 S.Ct. 113, 444 U.S. 855, 62 L.Ed.2d 73. Telecommunications1018(4)

Evidence was sufficient to show that defendant acted with criminal intent and design to assist perpetrators ofwire fraud in connection with sale of real property, and thus was sufficient to sustain his wire fraud convictionon aiding and abetting theory; defendant signed false rent verification for purchaser, with knowledge that bankwould rely on false statements in deciding whether to extend loan, and underlying offense of wire fraud wascompleted. U.S. v. Ionutescu, D.Ariz.2009, 752 F.Supp.2d 1091. Telecommunications 1014(3)

Evidence that defendant knowingly assisted colleague, as her mortgage broker, in preparing loan applications forpurchase of three residential properties which he knew to contain false information, that he signed loan applica-tion for one of properties, and that title commitment and invoice was faxed from Missouri to Kansas as part ofloan process for sale of property was sufficient to establish that defendant engaged in scheme to defraud, withintent to defraud, and with use of interstate wire communications to execute scheme, as required for defendant'sconviction for wire fraud in connection with purchase of property through fraudulently obtained mortgages. U.S.v. Washington, D.Kan.2010, 724 F.Supp.2d 1122, affirmed 634 F.3d 1180, certiorari denied 132 S.Ct. 300, 181L.Ed.2d 182. Telecommunications 1018(4)

Evidence amply supported jury's finding of requisite knowledge and intent to support defendant's convictions ofwire fraud and conspiracy to commit wire fraud; witnesses testified that defendant bore responsibility for HUD-1 statements sent to lenders before closing in order to obtain financing for fraudulent deals, that upon defend-ant's instruction and approval, these statements made fraudulent representations that induced lenders to loanmore money than warranted by true property values, and that defendant knew that the required down paymentshad not been made and that second mortgages had not been obtained, even though the HUD-1s indicated other-wise. U.S. v. Chaffo, C.A.3 (Pa.) 2011, 452 Fed.Appx. 154, 2011 WL 5597418, Unreported, certiorari denied132 S.Ct. 2683, 183 L.Ed.2d 48, post-conviction relief denied 2012 WL 5077377. Conspiracy 47(5); Tele-communications 1018(4)

196. ---- Knowledge, weight and sufficiency of evidence, practice and procedure

The evidence of the defendant's knowledge and intent was sufficient to support his convictions for wire fraud,

18 U.S.C.A. § 1343


mail fraud, and conspiracy; evidence that defendant knew that telemarketing company with which he was in-volved was engaged in fraudulent activity included testimony of one of the men running the company that hemet with defendant on a weekly basis to discuss company's operations, that defendant knew that company wasmisleading its customers, and that defendant expressly acknowledged the illegal and fraudulent nature of thescheme, and there was evidence that defendant was present at meetings where sales scripts and customer com-plaints were discussed, and that he was the named president of the company and held authority over its finances.U.S. v. Anderson, C.A.7 (Ill.) 2009, 580 F.3d 639. Conspiracy 47(5); Postal Service 49(11); Tele-communications 1018(4)

Evidence permitted jury to find that defendant was knowing participant in unlawful scheme to obtain real prop-erty for deflated price, supporting conviction for wire fraud and conspiracy to commit wire fraud, even thoughdefendant was acquitted of charges under District of Columbia law for fraud, forgery, and uttering forged instru-ment; jury could conclude from defendant's connection to forged deed for property, which was filed by his realestate agent after owner's death, that he knowingly entered into scheme to defraud owner's heirs, particularlygiven check that he wrote to agent after she purportedly purchased property, and defendant falsely represented toexecutor for owner's estate that he was United States marshal and that police were protecting property on his be-half, suggesting that if property were not sold to his group, protection would cease, property would be ruined,and estate would be liable. U.S. v. Brockenborrugh, C.A.D.C.2009, 575 F.3d 726, 388 U.S.App.D.C. 28, rehear-ing en banc denied. Conspiracy 47(5)

Sufficient evidence supported finding that there was a reasonable foreseeability that interstate wire communica-tions would be used in scheme defendant voluntarily participated in to defraud bank out of money, as required tosupport defendant's conviction for wire fraud, in light of evidence that defendant used bank's online banking sys-tem to receive and transfer money to his bank account. U.S. v. Anderson, C.A.8 (N.D.) 2009, 570 F.3d 1025.Telecommunications 1014(4)

Evidence that defendant participated in fraudulent scheme by serving as conduit of loan proceeds to scheme par-ticipants was sufficient to support her conviction for wire fraud based on fraudulent scheme that enabled personswith weak credit to obtain loans that paid entire purchase price of homes and gave them money back; closingstatement for a charged home purchases listed $10,000 marketing service fee to company owned by defendant,and although defendant testified she earned $10,000 by referring participant in scheme to down-payment lender,he denied that she did, and testified that it was necessary that $10,000 be funneled through defendant's companybecause his company was already receiving $32,690 for its commission, which was maximum company couldreceive under lending guidelines. U.S. v. Caldwell, C.A.10 (Okla.) 2009, 560 F.3d 1214. Telecommunications

1018(4)

The evidence that defendant had an intent to defraud was sufficient to support his conviction for wire fraudbased on fraudulent scheme that enabled persons with weak credit to obtain loans that paid the entire purchaseprice of their homes and gave them money back; defendant had a college degree in business administration andhad received training in mortgage lending, the mortgage-loan transaction for defendant's purchase of his ownhome, which preceded the charged transactions, shared several significant features with the charged transac-tions, including inflated sale price and loan application that falsely stated that the down payment was not bor-rowed, and documents and testimony contradicted defendant's testimony that his involvement in the charged

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transactions was minimal. U.S. v. Caldwell, C.A.10 (Okla.) 2009, 560 F.3d 1202. Telecommunications1018(4)

Sufficient evidence established that mortgage lenders were not fully informed about financial transactions re-garding home purchases, as required to support defendant's wire fraud conviction related to transfer of moneyfrom mortgage lender to title company handling closing. U.S. v. Baum, C.A.10 (Okla.) 2009, 555 F.3d 1129,habeas corpus denied 2011 WL 839279, affirmed 461 Fed.Appx. 736, 2012 WL 414440. Telecommunications

1018(4)

Evidence was insufficient to support defendants' convictions for wire fraud based on wire transmissions sent be-fore defendants had knowledge of bank stockholder's scheme to sell his stock, as there was no evidence that de-fendants became “knowing participants” in the scheme to sell the stock simply by virtue of their having createdfalse financial statements. U.S. v. Gallant, C.A.10 (Colo.) 2008, 537 F.3d 1202, certiorari denied 129 S.Ct.2026, 173 L.Ed.2d 1115, post-conviction relief denied 2012 WL 6618270. Telecommunications 1014(4)

Evidence that defendant's false statements were material, particularly testimony from a Veterans Affairs (VA)claims administrator that a veteran's own explanation of his role in the event had the capacity to influence theVA's decisions, was sufficient to support conviction of wire fraud in connection with defendant's scheme to de-fraud the government by making false statements in an effort to obtain more than $320,000 in veterans' benefits.U.S. v. Roberts, C.A.7 (Wis.) 2008, 534 F.3d 560, rehearing en banc denied , certiorari denied 129 S.Ct. 1028,555 U.S. 1139, 173 L.Ed.2d 297. Telecommunications 1018(4)

Jury's conclusion, in convicting defendant of wire fraud, that defendant had knowingly and willingly entered in-to scheme to defraud when she applied for new employment by sending interstate fax of her resume which madeno mention of her former employment, was supported by sufficient evidence including that when defendant ap-plied for position by faxing resume, she had recently defrauded two similarly small organizations while workingas their secretary or office manager, and almost immediately after she accepted new position, she began defraud-ing new employer in the same way that she had defrauded former employers. U.S. v. Tann, C.A.D.C.2008, 532F.3d 868, 382 U.S.App.D.C. 267, certiorari denied 129 S.Ct. 772, 555 U.S. 1088, 172 L.Ed.2d 761. Telecommu-nications 1018(4)

Evidence was sufficient to support defendant's convictions for wire fraud and federal funds theft; evidenceshowed that defendant administered federal program and devised a scheme to defraud in which she knowinglymisused federal grant funds for personal expenses and misapplied grant funds to items not approved in federalprogram's line-item budget. U.S. v. Williams, C.A.11 (Ga.) 2008, 527 F.3d 1235. Larceny 55; Telecommu-nications 1018(4)

Evidence in wire fraud prosecution was sufficient to establish that defendant intended to defraud his investors;evidence showed that defendant, with full knowledge that his company was “hemorrhaging money” and unableto sustain its operations without a constant influx of investment capital, aggressively courted both new and exist-ing investors with assurances that company was financially sound and profitable. U.S. v. Edwards, C.A.11 (Ga.)2008, 526 F.3d 747. Telecommunications 1018(4)

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Evidence was sufficient to establish that defendant “caused” a wire transmission in furtherance of her scheme todefraud the Veterans Administration for companion care services that were never provided, as required to sus-tain wire fraud conviction; defendant knew that payments to her sham companion care company would be elec-tronically transmitted to her account and therefore she clearly foresaw that her fraud on the Veterans Adminis-tration would result in wire transmissions. U.S. v. Ratliff-White, C.A.7 (Ill.) 2007, 493 F.3d 812, certioraridenied 128 S.Ct. 1070, 552 U.S. 1141, 169 L.Ed.2d 808. Telecommunications 1014(4)

Rational jury could have found beyond reasonable doubt that defendant knowingly assisted in co-defendant'sfraudulent schemes, in defendant's trial on wire fraud and aiding and abetting charges, where co-defendant en-gaged in fraudulent activities that led to him being charged and convicted for those crimes, defendant substan-tially assisted co-defendant in day-to-day operations, defendant falsely represented to some investors that shewas certified public accountant, and she knew that funding she and co-defendant received was not being spenton investment projects, but for personal gain. U.S. v. Dowlin, C.A.10 (Wyo.) 2005, 408 F.3d 647. Telecommu-nications 1018(4)

There was sufficient evidence of defendant's participation in mortgage flipping scheme to support his convictionfor wire fraud affecting financial institution; defendant knew about the schemes from his prior participation, andhe approached employee of mortgage broker to demand larger share of illegally obtained profits, and defendantwas aware that property was appraised well above its fair market value. U.S. v. Berkley, C.A.7 (Ill.) 2003, 333F.3d 776, amended on denial of rehearing. Telecommunications 1018(4)

Evidence that defendant entered into airplane lease with option to buy agreement with German bank, that de-fendant persuaded German bank to deregister plane with German agency for convenience, that defendant soldairplane without informing German bank of sale or paying for airplane, and that defendant used interstate wireto cause buyer's deposit to be transmitted from Mississippi bank to Wisconsin bank was sufficient to establishthat defendant knowingly devised a scheme to defraud German bank using interstate wire, and thus supporteddefendant's conviction of wire fraud. U.S. v. Mueller, C.A.7 (Wis.) 1986, 786 F.2d 293. Telecommunications

1018(4)

Defendant's supervisory authority, customer contacts and presence in unpartitioned sales room at very height offraudulent activity thoroughly undermined his contention that he was unaware of deceptive and fraudulent salesoccurring around him, and evidence was sufficient to support his convictions on various counts for wire fraud,mail fraud and conspiracy for his participation in scheme to sell illegal commodity option contracts. U.S. v.Bein, C.A.2 (N.Y.) 1984, 728 F.2d 107, certiorari denied 105 S.Ct. 135, 469 U.S. 837, 83 L.Ed.2d 75. Conspir-acy 47(4); Conspiracy 47(5); Postal Service 49(11); Telecommunications 1018(4)

Evidence in prosecution for the use of the mails and wire communications in alleged scheme to defraud creditorof the corporate defendant, evidence was sufficient to show that individual defendant, who was president, prin-cipal stockholder, and general manager of the corporate defendant, had actual knowledge of the wrongful diver-sions. U. S. v. West, C.A.8 (Neb.) 1977, 549 F.2d 545, certiorari denied 97 S.Ct. 1601, 430 U.S. 956, 51L.Ed.2d 806. Postal Service 49(11); Telecommunications 1018(4)

18 U.S.C.A. § 1343


Sufficient evidence supported defendant's conviction of wire fraud and money laundering regarding her particip-ation in co-conspirator's scheme to defraud investors, financial institutions, and insurance companies, and thus,new trial was not warranted; there was sufficient proof of defendant's knowledge and specific intent to promotescheme to defraud, including co-conspirator's testimony of defendant's awareness after she took increased roleas office manager of involved entity, accountant's testimony that when he spoke with defendant she used alias tofalsely confirm $600 million transfer of funds, and other evidence that defendant was aware of specific illegalityof her actions which included use of her home address to register cars used in scheme and opening of bank ac-counts used to receive stolen money. U.S. v. Kim, D.Conn.2004, 303 F.Supp.2d 150. Telecommunications1018(4); United States 34

Evidence was sufficient to support finding that defendant knowingly participated in a scheme to defraud in-vestors into investing into his companies, as required to sustain convictions for mail and wire fraud; evidencedemonstrated that defendant promised high rates of return “risk-free” despite having previously experiencedlosses from the very same types of investment vehicles, vehicles that were managed by the same people whocontrolled the accounts in which defendant asked others to invest. U.S. v. Blood, C.A.3 (Del.) 2007, 232Fed.Appx. 199, 2007 WL 2310025, Unreported. Postal Service 49(11); Telecommunications 1018(4)

197. ---- Schemes, weight and sufficiency of evidence, practice and procedure

Evidence that defendant deposited nearly 100 checks containing unauthorized excess compensation from his em-ployer over the course of a two-year period, that scheme remained incomplete until interstate wire communica-tion completed each deposit transaction, thereby rendering it an essential step in facilitating transfer of fundsfrom employer's account to defendant's account, and that defendant directed employer's finance manager to issuemultiple, smaller-denomination checks, rather than a large, lump-sum payment, was sufficient to show that de-fendant conducted an ongoing scheme to defraud his employer and that interstate wire communications were ne-cessary to complete and conceal each fraud, as required for defendant's conviction for wire fraud. U.S. v. Jinian,C.A.9 (Cal.) 2013, 725 F.3d 954. Telecommunications 1018(4)

Evidence was sufficient to sustain conviction for wire fraud; mortgage brokers and Federal Housing Authority(FHA) exchanged wire transmissions requesting access to information to generate FHA case numbers for prop-erties involved in defendant's scheme to obtain mortgage loans for low-income, unsophisticated home buyersthrough FHA program for which they were ineligible, and although defendant was not involved in actual trans-missions, he could have reasonably foreseen that his fraudulent FHA applications would result in use of wirecommunications facility based on his experience as licensed real estate broker. U.S. v. Weiss, C.A.10 (Colo.)2010, 630 F.3d 1263. Telecommunications 1014(4)

Transmission of $46,000 from Louisiana Road Home program to Small Business Administration's (SBA) ac-count in New York, following discovery by Road Home program that applicant for grant to rebuild residentialproperty after hurricane had previously received overlapping funds from SBA, was necessary component of ap-plicant's scheme to defraud United States by obtaining loans on property she no longer owned, and thus was suf-ficient to support applicant's wire fraud conviction, where applicant knew that she might have to use some of herRoad Home money to pay down her SBA loan, and agreed to this condition through signing her applications, ex-plicitly agreeing to any necessary transfer. U.S. v. Dowl, C.A.5 (La.) 2010, 619 F.3d 494. Telecommunications

18 U.S.C.A. § 1343


1014(6)

For a wire fraud conviction, the use of the wires need not be an essential element of the scheme in order to fur-ther the scheme. U.S. v. Selby, C.A.9 (Or.) 2009, 557 F.3d 968. Telecommunications 1014(6)

Evidence was sufficient to support defendants' convictions for wire fraud based on their involvement in schemeto sell bank stockholder's stock; despite prospective buyers' questioning, defendants, as owners of corporation inmarketing agreement with bank to market and operate bank's sub-prime credit card program, never disclosed theproblems they were having with travel packages offered in connection with credit cards, or $20 credits that weresupposed to be applied to credit card accounts, and, moreover, during this entire time period, defendants wereopening bogus accounts and using $20 credits to disguise the delinquencies. U.S. v. Gallant, C.A.10 (Colo.)2008, 537 F.3d 1202, certiorari denied 129 S.Ct. 2026, 173 L.Ed.2d 1115, post-conviction relief denied 2012WL 6618270. Telecommunications 1018(4)

Sufficient evidence existed to support defendant's conviction for mail and wire fraud for failing to pay incometaxes on revenue earned from extortion of subcontractors to secure them a construction project in Puerto Rico;defendant's tax preparer testified that defendant did not tell him about income earned from subcontractor andthat he therefore did not include it on defendant's tax return, rational jury could have inferred that it was reason-able foreseeable that interstate wires would be used in the ordinary course of business for transfer of paymentsinvolved in extortion scheme, and reasonable jury could have credited evidence that defendant mailed tax return,as court admitted into evidence a copy of a mater-marked envelope addressed to Puerto Rico Treasury Depart-ment and bearing a receipt stamp. U.S. v. Vazquez-Botet, C.A.1 (Puerto Rico) 2008, 532 F.3d 37. Postal Service


Evidence was sufficient to support convictions of dog track's chief executive officer (CEO) and its general man-ager for wire fraud, and conspiracy to commit wire fraud, in scheme to defraud citizens of Rhode Island of hon-est services of public officials; facsimile transmissions and other company documents showed that managerpressed CEO to make large retainer payments in amount of $500,000 or more to law firm partner of speaker ofRhode Island House of Representatives, implying that such a payment would reflect their gratitude for certainlegislation, and would guarantee speaker's future support of favorable legislation for track, and prior retainerpayments to partner had been much less than proposed amounts, from which jury could infer that CEO and man-ager intended that payments reach speaker in exchange for his legislative support. U.S. v. Potter, C.A.1 (R.I.)2006, 463 F.3d 9. Conspiracy 47(5); Telecommunications 1018(4)

Evidence was sufficient to support defendants' wire fraud convictions, which were based on their participation ina fraudulent scheme to obtain money from union pension fund by having its trustees invest pension fund assetsin, inter alia, defendant's hedge fund, from which kickbacks would be made and bribes would be paid to unionpension fund fiduciaries, and by causing an interstate wire transmission of investment advisor's credentials infurtherance of that scheme; evidence was ample to show that defendant knew in the early stages of their schemethat union was a target and that the credentials of investment advisor would help them achieve their goal. U.S. v.Reifler, C.A.2 (N.Y.) 2006, 446 F.3d 65. Telecommunications 1018(4)

18 U.S.C.A. § 1343


Sufficient evidence sustained convictions for wire fraud and conspiracy to commit wire fraud, in connectionwith arson scheme; defendant's alleged coconspirator testified that he and defendant discussed and planned ar-son on several occasions and that defendant gave him key for that purpose, and that he telephoned defendant toinform him that arson was complete, which was corroborated by telephone records. U.S. v. Ingles, C.A.5 (La.)2006, 445 F.3d 830. Conspiracy 47(5); Telecommunications 1018(4)

Sufficient evidence supported defendant's conviction for wire fraud and food stamp fraud related to his conductas a store owner; store employee testified that he traded cash for benefits from electronic food stamp transfercards, food stamp recipients confirmed that store paid them cash for such benefits, testimony established howswipe of electronic food stamp card automatically resulted in transfer of benefits to a retailer file and eventuallypayment into retailer's bank account, and government introduced evidence of the relevant card swipes and even-tual payment into defendant's bank account of the amounts of the food stamp benefits. U.S. v. Alhalabi, C.A.7(Ill.) 2006, 443 F.3d 605, rehearing and suggestion for rehearing en banc denied, certiorari denied 127 S.Ct. 299,549 U.S. 889, 166 L.Ed.2d 154. Public Assistance 162; Telecommunications 1018(4)

Evidence that defendant used his position as financial planner to induce client to award power of attorney overhis assets to planner and that planner used that power of attorney to create joint bank account in name of clientand himself which he then used, by wire and mail, to cause client's funds to be transferred to his own personalaccounts, supported defendant's convictions for mail and wire fraud. U.S. v. Williams, C.A.9 (Or.) 2006, 441F.3d 716, certiorari denied 127 S.Ct. 295, 549 U.S. 927, 166 L.Ed.2d 225. Postal Service 35(10); Telecom-munications 1018(4)

Evidence was sufficient to support attorneys' convictions on multiple counts of wire and mail fraud and conspir-acy, on basis of the deprivation of insurance companies' intangible right of honest services; attorneys intention-ally used the mails and wires to induce insurance adjusters, in return for payments and against the interests oftheir employers, secretly to expedite insurance claims in favor of the attorneys' clients while engaging in materi-al omissions in information given to the insurance companies. U.S. v. Rybicki, C.A.2 (N.Y.) 2003, 354 F.3d 124, certiorari denied 125 S.Ct. 32, 543 U.S. 809, 160 L.Ed.2d 10. Conspiracy 47(5); Postal Service49(11); Telecommunications 1014(10)

Evidence that county's financial advisor on bond refunding project and party desirous of being awarded the un-derwriting contract on project had participated in scheme whereby financial advisor, in return for paymentstotalling over $40,000, had telefaxed other party a copy of competing bid and other confidential informationuseful in securing contract was sufficient to support their convictions of money and property wire fraud. U.S. v.Poirier, C.A.11 (Ga.) 2003, 321 F.3d 1024, opinion corrected 2003 WL 21211926, rehearing and rehearing enbanc denied 66 Fed.Appx. 848, 2003 WL 1957357, certiorari denied 124 S.Ct. 227, 540 U.S. 874, 157 L.Ed.2d135. Telecommunications 1018(4)

Trustee's mail and wire fraud convictions were supported by sufficient evidence, including evidence that he be-lieved he needed cotrustee's consent prior to compensating himself from trust, that checks drawn on trust'schecking account required signatures of both trustees, and that trustee forged cotrustee's signatures to make itappear that she had authorized payments to him from trust. U.S. v. Frost, C.A.8 (Ark.) 2003, 321 F.3d 738, re-

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hearing and rehearing en banc denied. Postal Service 49(11); Telecommunications 1018(4)

Evidence was sufficient to support defendant's wire fraud conviction, in connection with defendant's use ofstolen name to obtain tax refund from Internal Revenue Service (IRS), even if the government did not show howfalse W-2 form was obtained or created; defendant opened bank account using stolen identity, filed a false IRSreturn using stolen name, requested that an electronic refund be sent to account he had created, and sending sucha refund electronically necessarily crossed state lines. U.S. v. McNeil, C.A.9 (Mont.) 2003, 320 F.3d 1034, certi-orari denied 124 S.Ct. 111, 540 U.S. 842, 157 L.Ed.2d 77. Telecommunications 1018(4)

In prosecution for wire fraud, evidence was sufficient to establish that defendant devised scheme to defraud or toobtain money or property by means of false or fraudulent pretenses, representations, or promises where it wasestablished that defendant represented to prospective purchasers that he could supply them with video gameswithin ten to 14 days of receiving payment when, in fact, he stocked no video games and did not deliver them orship them as represented. U.S. v. Jay, C.A.10 (Utah) 1985, 779 F.2d 581. Telecommunications 1018(4)

Evidence in defendant's prosecution for wire fraud, including evidence that principal for freight forwardercaused shipper and Agency for International Development to approve payment of freight charges of $158,000rather than $106,000, was sufficient to support finding that the defendant's actions adequately showed scheme orartifice to defraud and for obtaining money by means of false or fraudulent pretenses or representations withinmeaning of this section. U.S. v. Ventura, C.A.2 (N.Y.) 1983, 724 F.2d 305. Telecommunications 1018(4)

Evidence indicating that defendant arranged loans on ships which were fraudulently represented as being ontime charters and also prepared papers representing that a ship on which a loan was obtained was purchased for$5.5 million, whereas ship had shortly before been purchased for $3.3 million, was sufficient to sustain convic-tion on counts charging conspiracy, wire fraud, and making false statements in connection with obtaining loansfrom a federally insured bank. U. S. v. Hanlon, C.A.2 (N.Y.) 1977, 548 F.2d 1096. Conspiracy 47(4);Fraud 69(5); Telecommunications 1018(4)

Evidence against defendant, who created impression of wealth, who induced victims to lend her money so thatshe could pay off back taxes and attorneys' fees and make large profit on sale of large tract of land she allegedlyowned, and who was unable to repay the loans, sustained conviction of devising a scheme to defraud victims bymeans of false and fraudulent pretenses. U. S. v. Carmichael, C.A.5 (Ga.) 1974, 497 F.2d 36. False Pretenses

49(1)

Evidence was sufficient to sustain convictions of mail and wire fraud against defendants who purchased moneyorders in one city with checks drawn on bank account in another city and then deposited proceeds of money or-ders in bank account on which checks were drawn maintaining average daily float of $934.60. U. S. v. Gross,C.A.8 (Iowa) 1969, 416 F.2d 1205, certiorari denied 90 S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Postal Ser-vice 49(11); Telecommunications 1018(4)

Evidence was sufficient to sustain conviction of defendant for violation of this section prohibiting schemes to

18 U.S.C.A. § 1343


obtain money or property by means of false or fraudulent pretenses transmitted by wire, radio or television com-munication in interstate commerce and for violation of section 2315 of this title respecting sale of stolen goodswhich had moved in interstate commerce, arising out of defendant's use of stolen stock certificates as collateralfor loans. Lofland v. U. S., C.A.9 (Cal.) 1966, 357 F.2d 472, certiorari denied 87 S.Ct. 755, 385 U.S. 1026, 17L.Ed.2d 675. Receiving Stolen Goods 8(3); Telecommunications 1018(4)

Evidence was sufficient to sustain a conviction on three charges that defendant caused certain interstate tele-phonic communications to be transmitted to defraud various poultry processors and to obtain property by meansof fraudulent pretenses, representations, and promises. Gorman v. U. S., C.A.5 (Tex.) 1963, 323 F.2d 51. Tele-communications 1018(4)

Evidence that defendant participated in scheme to defraud and had intent to defraud was sufficient to support hisconviction for wire fraud; although it was defendant's son who first approached victim about investing in dicegame and signed licensing agreement that purported to grant victim exclusive license to market and sell game inWisconsin casinos, victim testified that defendant and his son, collectively, told him they were in process of get-ting game licensed, and defendant became victim's primary contact and indicated in communications to victimthat the game was joint effort with his son, and evidence showed that rather than being used to get the game li-censed and started, victim's $324,000 investment went toward purchase of airplane and into bank account of de-fendant's son's company. U.S. v. Washburn, N.D.Iowa 2012, 862 F.Supp.2d 871, affirmed 2013 WL 4516646.Telecommunications 1018(4)

Evidence was sufficient to sustain convictions for mail and wire fraud; defendant, as chairman of a property ex-change business, reviewed and approved marketing materials and exchange documents that were used to falselyrepresent to exchangors that their funds would not be subjected to any risk and would be parked in escrow ac-counts, he instead used their funds to invest in risky stock options, and a reasonably foreseeable consequence ofhis scheme to defraud was use of mails and interstate wire communications. U.S. v. Carpenter, D.Mass.2011,808 F.Supp.2d 366. Postal Service 49(11); Telecommunications 1014(4)

Evidence that defendant knowingly assisted colleague, as her mortgage broker, in preparing loan applications forpurchase of three residential properties which he knew to contain false information, that he signed loan applica-tion for one of properties, and that closing agent for sale of one of properties used logistics services company,via overnight commercial mail, to transmit closing documents to lender pursuant to loan agreement, was suffi-cient to establish that defendant engaged in scheme to defraud, with intent to defraud, and with use of commer-cial carrier to execute scheme, as required for defendant's conviction for commercial carrier fraud in connectionwith purchase of property through fraudulently obtained mortgages. U.S. v. Washington, D.Kan.2010, 724F.Supp.2d 1122, affirmed 634 F.3d 1180, certiorari denied 132 S.Ct. 300, 181 L.Ed.2d 182. Postal Service49(11)

Evidence of a nexus between defendants' fraudulent scheme and the wires was sufficient to support convictionfor wire fraud; wires were used prior to and as one step toward the receipt of the fruits of the fraud, and werealso used to maintain the ongoing viability of the fraud by presenting a rosy picture concerning the executives'management and compensation. U.S. v. Wittig, D.Kan.2006, 425 F.Supp.2d 1196, reversed 472 F.3d 1247, on

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remand 247 F.R.D. 661. Telecommunications 1014(6)

Evidence, in prosecution for wire fraud, was sufficient to prove beyond a reasonable doubt that defendant, asalesman for an investment firm, intended to defraud firm for his personal gain when he submitted false expensereimbursement statements, despite his testimony that his actions were approved by firm's chief executive; chiefexecutive was not available to corroborate defendant's testimony, defendant was not credible, and no other evid-ence corroborated his testimony. U.S. v. Kirkland, D.Or.2004, 330 F.Supp.2d 1151. Telecommunications1018(4)

Evidence was sufficient to sustain conviction of wire fraud in connection with a scheme to obtain investments ofmoney in a machine that extracted gold from thermal well waters. U. S. v. Buttram, W.D.Pa.1977, 432 F.Supp.1269, affirmed 568 F.2d 770, certiorari denied 98 S.Ct. 1646, 435 U.S. 995, 56 L.Ed.2d 84. Postal Service49(11)

Evidence and adverse inferences based on broker's invocation of Fifth Amendment privilege against self-incrimination, showed that probable cause existed to conclude that broker, through his agents, committed wirefraud, attempted to commit wire fraud, and/or conspired to commit wire fraud in his efforts to obtain financingfor purchase a portfolio of shopping centers, as would support application of crime-fraud exception to the attor-ney-client privilege or the attorney work product doctrine in action alleging fraud and other claims againstbroker. Amusement Industry, Inc. v. Stern, S.D.N.Y.2013, 2013 WL 498724. Federal Civil Procedure1604(1); Privileged Communications and Confidentiality 154

Defendant's admission to agreement with one or more other persons to commit specified federal offense and toexistence of scheme to defraud, together with government's proffer and defendant's allocution as to telephonecalls and computer transmissions involved in conspiracy, was sufficient factual basis to support defendant's pleaof guilty to conspiracy to commit wire fraud. U.S. v. Thomas, C.A.2 (N.Y.) 2006, 202 Fed.Appx. 531, 2006 WL3147355, Unreported, certiorari denied 127 S.Ct. 1320, 549 U.S. 1237, 167 L.Ed.2d 129, post-conviction reliefdenied 2007 WL 4441056. Criminal Law 273(4.1)

Evidence was sufficient to support finding of use of wire communications in interstate commerce in furtheranceof a scheme to defraud, as required to sustain conviction for wire fraud; defendant sought to provide an illegalalien with a fraudulent travel papers in exchange for payment, the papers were obtained through the auspices ofa United States customs official who was responsible for enforcing the immigration laws and preventing issu-ance of invalid papers, and alien testified that defendant called him on at least two occasions to arrange fortransfer of the passport and travel out of St. Thomas and a representative of the phone company confirmed thatthese calls were routed outside of the territorial borders of the Virgin Islands, through Puerto Rico. U.S. v. Verasde los Santos, C.A.3 (Virgin Islands) 2006, 184 Fed.Appx. 245, 2006 WL 1674245, Unreported. Telecommunic-ations 1018(4)

Evidence was sufficient to support defendant's convictions for wire fraud; the two plots in which defendant par-ticipated required him to disregard his official duties and assist illegal aliens to obtain fraudulent travel docu-mentation, and the schemes were facilitated by telephone communications routed outside of the Virgin Islands.

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U.S. v. Vega, C.A.3 (Virgin Islands) 2006, 184 Fed.Appx. 236, 2006 WL 1674155, Unreported. Telecommunic-ations 1014(8)

Evidence was sufficient for jury to find beyond reasonable doubt that defendant devised scheme to defraud in vi-olation of wire fraud statute, since all of defendant's falsehoods about experience and capacity of venture capit-alist corporation with which he was associated were designed to make entrepreneur and his associates believethat corporation could readily obtain funding for resort project from its usual sources of funding, however, de-fendant never had usual sources of funding from which he could or would even attempt to obtain funding. U.S.v. Lenertz, C.A.4 (S.C.) 2003, 63 Fed.Appx. 704, 2003 WL 21129842, Unreported. Telecommunications1018(4)

Evidence, that scheme was reasonably calculated to deceive persons of ordinary prudence and comprehension,was sufficient to support wire fraud conviction; no readily available external source for further information oninvestments existed, defendant stressed to investors that investment opportunities were secret, non-disclosure re-quirements dissuaded investors from conducting outside research, and defendant's position as a religious leaderand alleged charitable motivation led victims to believe that representations were truthful. U.S. v. Cabe, C.A.4(S.C.) 2003, 57 Fed.Appx. 542, 2003 WL 159685, Unreported, certiorari denied 124 S.Ct. 856, 540 U.S. 1067,157 L.Ed.2d 729, rehearing denied 124 S.Ct. 1195, 540 U.S. 1170, 157 L.Ed.2d 1223. Telecommunications1018(4)

198. ---- Tapes, transcripts, or wiretaps, weight and sufficiency of evidence, practice and procedure

In prosecution for conspiracy and wire fraud, evidence, including that “gems” offered by defendant, and accep-ted by some persons, in exchange for expensive automobiles, were worthless, and tape recordings from whichjury could readily infer that defendant intended to defraud the prospective gem purchasers, was sufficient to sus-tain conviction. U.S. v. Melton, C.A.11 (Ga.) 1984, 739 F.2d 576. Conspiracy 47(5); Telecommunications

1018(4)

Evidence, including tape recordings made of defendant's telephone conversations, was sufficient to sustain hisconviction for using a “blue box” to bypass telephone billing equipment. U. S. v. Glanzer, C.A.9 (Wash.) 1975,521 F.2d 11. Telecommunications 1018(4)

199. ---- Telephone conversations, weight and sufficiency of evidence, practice and procedure

That defendant was present in his home state at time of his alleged “interstate” telephone call could be inferred,for purposes of establishing interstate character of communication under wire fraud statute, from evidence thatdefendant was present in his home state two days before and two days after telephone call in question. U.S. v.Galbraith, C.A.10 (Utah) 1994, 20 F.3d 1054, rehearing denied, certiorari denied 115 S.Ct. 233, 513 U.S. 889,130 L.Ed.2d 157. Telecommunications 1018(2)

Evidence implicating defendant in conspiracy to defraud insurance company and evidence that only 18 minutesafter defendant and her spouse checked into their hotel room three-minute call was placed to their residence,

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presumably to inform arsonist that their alibi was in place, supported defendant's conviction of wire fraud. U.S.v. Shively, C.A.5 (Tex.) 1991, 927 F.2d 804, certiorari denied 111 S.Ct. 2806, 501 U.S. 1209, 115 L.Ed.2d 979.Telecommunications 1018(4)

Evidence was sufficient to support finding that it was reasonably foreseeable that a phone call would be madefrom defendant's attorney to police officer in attempt to bribe latter while attorney was in Arizona, and that in-terstate phone call was made to finalize specifics of plan to get defendant's case dismissed, thereby supportingdefendant's conviction of conspiracy to commit wire fraud. U.S. v. Soteras, C.A.7 (Ill.) 1985, 770 F.2d 641.Conspiracy 47(5)

In prosecution for wire fraud, inter alia, evidence which established that telephone call was made betweenformer computer manufacturer employee and intermediary, who facilitated computer sales, but which did not es-tablish what was said during call, did not establish that call was for purpose of executing scheme as necessaryelement of wire fraud, requiring reversal of convictions on that count. U.S. v. Bibby, C.A.6 (Tenn.) 1985, 752F.2d 1116, certiorari denied 106 S.Ct. 1183, 475 U.S. 1010, 89 L.Ed.2d 300. Telecommunications 1018(4)

As to element of interstate commerce, in prosecution for wire fraud, evidence with respect to content of tele-phone calls was sufficient to sustain conviction on eight counts, but no nexus was shown between two telephonecalls and scheme to defraud, and convictions of two defendants on two counts of indictment were accordinglynot sustained by evidence. U.S. v. DeFiore, C.A.2 (N.Y.) 1983, 720 F.2d 757, certiorari denied 104 S.Ct. 1684,466 U.S. 906, 80 L.Ed.2d 158, certiorari denied 104 S.Ct. 3511, 467 U.S. 1241, 82 L.Ed.2d 820. Telecommunic-ations 1018(4)

Evidence of telephone calls intended to further illegal scheme were sufficient to sustain defendants' wire fraudconvictions even though the telephoned discussions included opinions on feasibility of the scheme, which wasabandoned. U.S. v. Davanzo, C.A.11 (Fla.) 1983, 699 F.2d 1097. Telecommunications 1018(4)

Evidence that defendant, while on an interstate telephone call with a co-conspirator, specifically directed the co-conspirator to make more fraudulent purchases of certain stocks, so that defendant could sell his shares at an ar-tificially inflated price, was sufficient to find defendant guilty of wire fraud; defendant was engaged in a schemeto defraud others of money or property, he used the interstate wires to further the scheme, and fact that buyers ofthe shares would purchase them at artificially inflated prices for defendant's profit demonstrated his intent toharm the buyers. U.S. v. Abdallah, E.D.N.Y.2012, 840 F.Supp.2d 584, affirmed 2013 WL 3198163. Telecom-munications 1014(2)

In prosecution for wire fraud in connection with alleged fraudulent pyramid investment scheme, testimony of in-vestors that any interstate telephone conversations with defendant dealt with matters relating to the scheme wassufficient, even though investors did not have specific recollections of particular telephone conversations andtheir precise relationship to the scheme. U.S. v. Weiner, E.D.Mich.1991, 755 F.Supp. 748, affirmed 988 F.2d629, certiorari denied 114 S.Ct. 142, 510 U.S. 848, 126 L.Ed.2d 105. Telecommunications 1018(4)

18 U.S.C.A. § 1343


Evidence was sufficient to support imposition of two-year sentence upon defendant convicted of aiding andabetting wire fraud, despite defendant's contention that victims might have participated in fraud even if defend-ant had not contacted them, where defendant admitted in plea agreement that his telephone calls to victims hadresulted in money transfers and defendant's actual participation in fraud was established. U.S. v. Orin, C.A.6(Ohio) 2004, 93 Fed.Appx. 835, 2004 WL 614569, Unreported. Sentencing And Punishment 67

200. ---- Voice identification, weight and sufficiency of evidence, practice and procedure

In prosecution for devising a scheme to defraud telephone company of monies due for long-distance telephonecalls, comparison of exemplars of defendant's voice with a salutation made on recorded fraudulent call was suf-ficient to sustain conviction, when considered with other evidence establishing consistent pattern of toll fraudactivity from defendant's phone, despite contention that, as a matter of law, defendant's participation in fraudu-lent phone calls could not be proven by a layman judge comparing a voice exemplar with brief salutation fromthe call in question. U. S. v. Sorota, C.A.5 (Fla.) 1975, 515 F.2d 573. Criminal Law 566; Telecommunica-tions 1018(4)

200a. ---- Statements, weight and sufficiency of evidence, practice and procedure

Statements by cigarette manufacturers and tobacco-related trade organizations about health effects of smoking,risk of addiction, and effects of secondhand smoke would be matter of importance to reasonable person decidingto purchase cigarettes, and thus were sufficiently material to support finding that they violated federal mail andwire fraud statutes, even though scientific community had reached consensus regarding severely adverse healthconsequences of smoking. U.S. v. Philip Morris USA Inc., C.A.D.C.2009, 566 F.3d 1095, 386 U.S.App.D.C. 49,certiorari denied 130 S.Ct. 3501, 177 L.Ed.2d 1090, certiorari denied 130 S.Ct. 3502, 177 L.Ed.2d 1090, rehear-ing denied 131 S.Ct. 57, 177 L.Ed.2d 1142, on remand 787 F.Supp.2d 68. Postal Service 35(12); Telecom-munications 1014(9)

Three e-mails sent by defendant to the victim investor furthered defendant's scheme to defraud the victim, as re-quired to support defendant's convictions for three counts of wire fraud based on those e-mails; by attempting tolull the victim into a false sense of security by promising a substantial return on his investment, the e-mailsfurthered the scheme to defraud the victim into investing money in a dice game to purportedly be marketed andsold to casinos, which money was instead used for the benefit of defendant and his family. U.S. v. Washburn,N.D.Iowa 2012, 862 F.Supp.2d 871, affirmed 2013 WL 4516646. Telecommunications 1014(6)

201. Verdict, practice and procedure

In prosecution for securities and wire fraud, conspiracy, insider trading, and money laundering, jury's inability toreach verdict on insider trading counts was nonevent for purposes of determining whether acquittals on fraudcounts were entitled to issue-preclusive effect under Double Jeopardy Clause, i.e. apparent inconsistencybetween acquittals and failures to return verdict did not affect preclusive force of acquittals; abrogating UnitedStates v. Howe, 538 F.3d 820, United States v. Aguilar-Aranceta, 957 F.2d 18, and United States v. White, 936F.2d 1326. Yeager v. U.S., U.S.2009, 129 S.Ct. 2360, 557 U.S. 110, 174 L.Ed.2d 78, on remand 334 Fed.Appx.707, 2009 WL 3346589. Double Jeopardy 98; Double Jeopardy 100.1

18 U.S.C.A. § 1343


Jury did not render inconsistent verdicts when it acquitted defendant on two counts of wire and honest servicesfraud but convicted him on a third count; the two counts on which defendant was acquitted were based on unre-corded telephone calls between defendant and another individual, from which jury was apparently asked to inferfrom suspicious timing alone that the calls were related to the scheme to bribe a city public works official, whilethe third count was based on a recorded phone conversation in which defendant and the other person clearly dis-cussed the bribe. U.S. v. Anderson, C.A.7 (Ill.) 2008, 517 F.3d 953. Criminal Law 878(4)

In prosecution for mail fraud and unlawful transportation of property where conspiracy was not alleged and de-fendants could have been proven guilty on one charge and a failure of proof could have occurred as to the other,it was error for trial court to submit only joint verdicts and to require jury to find both defendants guilty or bothinnocent, even though defendants were charged with having devised a scheme to defraud; and error was prejudi-cial, requiring remand for new trial as to each defendant. U. S. v. Cudd, C.A.10 (Kan.) 1974, 499 F.2d 1239.Criminal Law 798.5; Criminal Law 1173.2(1); Criminal Law 1189

202. Mistrial, practice and procedure

In prosecution under indictment charging wire fraud, the district court abused discretion in not declaring a mis-trial and in not thereafter granting defendant's motion for a new trial, where after the district court had excludedcertain highly prejudicial “other crimes” evidence from the government's case-in-chief, the government violatedthe clear intent of the court's ruling by proceeding, ostensibly to lay a foundation for later cross-examination andrebuttal use of the excluded evidence to call witnesses whose testimony served to put the forbidden evidence be-fore the jury. U. S. v. Westbo, C.A.10 (Colo.) 1978, 576 F.2d 285. Criminal Law 919(1); Criminal Law

2047

In prosecution for using fictitious credit card numbers in connection with long distance telephone calls, intro-duction of evidence concerning fraudulent calls with which defendant was not charged did not entitle defendantto mistrial where defendant did not make timely objection and after objection was made and sustained judgegave adequate and proper instructions to jury to disregard all such testimony. U. S. v. Jones, C.A.5 (Fla.) 1977,554 F.2d 251, certiorari denied 98 S.Ct. 202, 434 U.S. 866, 54 L.Ed.2d 142. Criminal Law 867.12(7)

In prosecution for wire fraud, trial court did not err in failing to grant mistrial after accepting testimony of cer-tain witness, since witness' comment that president of a company was in jail for bank robbery was completelyunpredicted by both sides, any prejudicial effect was minimal and judge used limiting instructions. U. S. v. Up-tain, C.A.5 (La.) 1977, 552 F.2d 1107, certiorari denied 98 S.Ct. 202, 434 U.S. 866, 54 L.Ed.2d 142. CriminalLaw 867.14(4)

Upon consideration of case as a whole it was not an abuse of judicial discretion to deny motion for mistrial bytwo defendants left in prosecution involving charges of violation of this section and conspiracy after the trialjudge granted, after summation but before instructions to the jury, the motion of the third defendant for an ac-quittal on charge that he allegedly participated in the scheme to defraud and was guilty of conspiracy since it didnot appear that the remaining defendants were prejudiced by such action; it would have been better not to haveadopted the procedure followed. U. S. v. Fincke, C.A.2 (N.Y.) 1971, 437 F.2d 856, certiorari denied 91 S.Ct.2170, 402 U.S. 995, 29 L.Ed.2d 160. Criminal Law 867.9

18 U.S.C.A. § 1343


Mere fact that hostility arose among codefendants during progress of trial under this section and section 1341 ofthis title was no valid ground for declaring a mistrial and ordering separate trials. Goodman v. U.S., C.A.8(N.D.) 1960, 273 F.2d 853. Criminal Law 622.7(6)

Although Supreme Court's decision in Skilling v. U.S. limiting honest service fraud prosecutions to bribery andkickback schemes, precluded government's honest services fraud charges against defendant, a corporate execut-ive, the admission of evidence at trial in support of these charges did not warrant mistrial on remaining counts ofconspiracy, securities fraud, mail and wire fraud, insider trading, obstruction of justice, and material misstate-ments to auditors; evidence of how affiliated company's monies were allegedly spent, including on horses andmany other items, was probative of defendant' alleged control over the company, expert testimony concerning fi-duciary duties merely provided background testimony on corporate governance, and evidence concerning de-fendant's “self-dealing” was relevant to the securities fraud, insider trading, and mail and wire fraud counts. U.S.v. Hatfield, E.D.N.Y.2010, 724 F.Supp.2d 321, subsequent determination 2010 WL 2816326, reconsiderationdenied in part 2013 WL 4804501. Criminal Law 867.12(1)

Once initial jury poll revealed lack of unanimity, in prosecution for securities fraud, wire fraud, and mail fraud,district court could send jury back to continue to deliberate, rather than declare mistrial; all jurors had alreadysigned verdict form and foreperson had announced that jury reached verdict, it was unclear why one juror didnot affirm verdict that she had recently signed, and under all circumstances, no party suggested that any resultother than continued deliberations was appropriate. U.S. v. McDonald, S.D.N.Y.2011, 825 F.Supp.2d 472. Crim-inal Law 874

203. New trial, practice and procedure

District court did not abuse its discretion in denying defendant's motion for new trial on charge of conspiracy tocommit wire fraud based on impeachment evidence that co-conspirator who had actively participated in con-struction and home repair had testified that he had no experience in construction, particularly where jury couldhave inferred that defendant had participated in conspiracy based on reasons unrelated to co-conspirator's testi-mony. U.S. v. Clay, C.A.8 (Ark.) 2010, 618 F.3d 946, rehearing and rehearing en banc denied , certiorari denied131 S.Ct. 1540, 179 L.Ed.2d 309, denial of post-conviction relief affirmed 720 F.3d 1021. Criminal Law942(1)

Probability that undisclosed statement of government witness, indicating that he did not recall whether he wrotefraudulent invoice prior to certain date, would have affected jury's decision was insufficient to undermine con-fidence in defendant's conviction in prosecution for mail and wire fraud and conspiracy to commit mail and wirefraud, and therefore government's failure to disclose statement did not warrant new trial; although statementmight have been used to some extent to impeach witness's trial testimony, it would at most have been very minorissue at trial. U.S. v. Amato, C.A.2 (N.Y.) 2008, 540 F.3d 153, certiorari denied 129 S.Ct. 1635, 173 L.Ed.2d1014. Criminal Law 919(1)

In order to secure a new trial based on newly discovered evidence defendant must establish that new evidencewas discovered after trial; evidence could not have been discovered earlier with due diligence; evidence is ma-terial and not merely cumulative or impeaching; and evidence would likely produce acquittal. U.S. v. Seago,

18 U.S.C.A. § 1343


C.A.6 (Tenn.) 1991, 930 F.2d 482. Criminal Law 938(1)

Post-criminal-trial statements by accomplice did not entitle defendant to new trial following conviction of mailand wire fraud, as the evidence, even if newly discovered, was consistent with what accomplice said in his testi-mony at trial, and there was no reason why it could not have been elicited by questioning at trial. U.S. v. Feld-man, C.A.7 (Ill.) 1985, 756 F.2d 556. Criminal Law 938(1)

Defendant, who received concurrent sentences on four counts charging transportation and disposition of stolencattle, and use of interstate wire communications and mails in scheme to defraud, was not entitled to new trial onbasis that conviction under latter counts could not be sustained and might have had effect on verdicts as toformer counts. Cummings v. U. S., C.A.10 (Kan.) 1961, 289 F.2d 904, certiorari denied 82 S.Ct. 83, 368 U.S.850, 7 L.Ed.2d 48. Criminal Law 1189

Defendants who were convicted of honest services mail and wire fraud and conspiracy to commit honest ser-vices mail and wire fraud and extortion under color of official right were not entitled to a new trial based on theadmission of a codefendant's statements as non-hearsay statements by a coconspirator of a party during thecourse and in furtherance of the conspiracy, even though the codefendant declarant was acquitted on the conspir-acy charge and all other charges at trial in which defendants were convicted, since the trial court found by a pre-ponderance of the evidence that a conspiracy embracing both the declarant and the defendants existed, and thatthe declarant made the statement during and in furtherance of the conspiracy. U.S. v. DiMasi, D.Mass.2011, 810F.Supp.2d 347, affirmed 2013 WL 4459062. Criminal Law 921

New trial was not warranted, in prosecution for mail and wire fraud based on alleged fraud in probate of an es-tate, on basis that evidence that defendant failed to make financial distributions to the heirs of the estate was pre-judicial; evidence was relevant as corroborative of whether defendant acted with intent to defraud when, throughfraudulent means, he put himself in position to acquire control over estate assets and then had those assets trans-ferred to accounts he had opened. U.S. v. Howard, D.D.C.2003, 245 F.Supp.2d 24. Criminal Law 921

Defendant, convicted of having devised scheme to defraud by means of false representation and caused trans-mission of interstate wire communications to execute fraudulent scheme, failed to sustain his burden of showingthat he was entitled to new trial on basis of alleged newly discovered evidence. U. S. v. Fassoulis,S.D.N.Y.1962, 203 F.Supp. 114. Criminal Law 958(6)

In appeal of conviction for conspiracy to commit wire fraud and interstate wire fraud, based on a fraudulentloan, new trial was not warranted where alleged newly discovered evidence did not establish that one witness'strial testimony was perjurious or material to the elements of the offense of conviction; sufficient independentevidence, in form of testimony of a number of witnesses, clearly proved fraudulent transaction, and alleged newevidence related to another transaction over three months later. U.S. v. Bui, C.A.2 (Conn.) 2003, 70 Fed.Appx.14, 2003 WL 21461916, Unreported. Criminal Law 945(2)

204. Sentence and punishment, practice and procedure--Generally

18 U.S.C.A. § 1343


Two-level increase to defendant's base offense level was warranted for misrepresenting that he acted on behalfof a religious organization, based on finding in wire fraud prosecution that defendant represented himself as act-ing to obtain a benefit on behalf of his congregation, which was religious organization, and that he intended todivert hidden proceeds to himself through third-party payouts. U.S. v. Kennedy, C.A.5 (Miss.) 2013, 707 F.3d558, certiorari denied 133 S.Ct. 2779, 186 L.Ed.2d 227, certiorari denied 133 S.Ct. 2785, 186 L.Ed.2d 227. Sen-tencing And Punishment 689

Defendant, a captain in the New Orleans Police Department and Commander of its traffic division, was a high-level public official, for purposes of sentence enhancement under the Sentencing Guidelines in his prosecutionfor conspiracy to commit wire fraud based on his participation in a fraudulent contracting scheme, even thoughhe was not the target of a bribe, where defendant was in a position of public trust with official responsibility forcarrying out a government program or policy. U.S. v. Roussel, C.A.5 (La.) 2013, 705 F.3d 184. Sentencing andPunishment 689

Within-Guidelines sentence of 33 months' imprisonment was substantively reasonable in prosecution for wirefraud in connection with mortgage fraud scheme, even if defendants' coconspirators received lesser sentences,where coconspirators had provided substantial assistance to government, defendant had waited until after trialconvened to plead guilty, and defendant had continued to disavow his role in offenses and exhibited minimal re-morse for his actions. U.S. v. Johnson, C.A.8 (Mo.) 2012, 688 F.3d 444, rehearing and rehearing en banc denied, certiorari denied 133 S.Ct. 1647, 185 L.Ed.2d 628. Sentencing and Punishment 56; Telecommunications

1022

Sentence of 144 months imprisonment for conviction of wire fraud and aiding and abetting wire fraud was reas-onable, and not an abuse of trial court's discretion, even though recommended guidelines range was 97-121months, since it was necessary to deter defendant from re-offending; pending trial defendant had been releasedon bond and allowed to attend a seminar in Hawai'i in which he represented he would be a “prospective employ-ee” of the “Seoul Christian Assembly” to discuss serving “as a liaison in California for a project to assist Koreanimmigrants with cultural assimilation,” but video of his meeting disclosed that defendant was instead continuingto make familiar pitch to potential investors in Hawai'i, and his bond was revoked. U.S. v. Aldridge, C.A.7 (Ill.)2011, 642 F.3d 537. Sentencing And Punishment 41; Sentencing And Punishment 94; Telecommu-nications 1022

Findings regarding actual losses sustained by four financial institutions were insufficient to support finding thatthey were victims, for purpose of enhancing sentence for securities fraud, wire fraud, and bank fraud on groundthat the crimes involved ten or more victims; sentencing court made no determination that any of the institutionssuffered any actual loss, and the presentencing report (PSR) which the court adopted failed to determine the lossamount. U.S. v. Skys, C.A.2 (N.Y.) 2011, 637 F.3d 146. Sentencing And Punishment 689

Proper method for calculating amount of loss from food stamp fraud, for purposes of restitution award, forfeit-ure order, and loss amount for sentencing, was subtracting store's legitimate food stamp sales from store's totalfood stamp redemptions, rather than measuring loss based on defendant's personal gain, in prosecution for wirefraud stemming from scheme to defraud United States Department of Agriculture (USDA) by trafficking in food

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stamp benefits. U.S. v. Ali, C.A.7 (Ill.) 2010, 619 F.3d 713, certiorari denied 131 S.Ct. 965, 178 L.Ed.2d 794.Forfeitures 3; Sentencing And Punishment 84; Sentencing And Punishment 2172

Sentencing court's failure to explicitly determine whether bank fraud defendant had significantly reduced mentalcapacity, as would warrant imposition of a sentence below the Sentencing Guideline range, was harmless, sinceany diminished capacity allegedly suffered by defendant did not substantially contribute to his commission ofthe crime; although psychiatrist found defendant had significantly reduced mental capacity at time of offense,psychiatrist did not confirm defendant's account of his crimes, and psychiatrist did not seem to fully understandthe criminal charges. U.S. v. Portman, C.A.7 (Ill.) 2010, 599 F.3d 633, as amended. Criminal Law1177.3(1); Sentencing And Punishment 862

Defendant's sentence to 33 months in prison for conviction of wire fraud was substantively reasonable, wheredefendant received relatively light sentence in view of properly calculated guidelines range, length of fraudulentscheme, and amount of loss. U.S. v. Masek, C.A.10 (Colo.) 2009, 588 F.3d 1283. Telecommunications1022

No deduction from $300,000 for which defendant and his coconspirators intended to sell real property that theysought to obtain fraudulently was warranted in calculating fraud loss for purposes of applying SentencingGuidelines in sentencing defendant for wire fraud and conspiracy to commit wire fraud where defendant andcoconspirators offered to pay $165,000 for property only after attempt to obtain property through filing offorged deed had failed. U.S. v. Brockenborrugh, C.A.D.C.2009, 575 F.3d 726, 388 U.S.App.D.C. 28, rehearingen banc denied. Sentencing And Punishment 736

Wire fraud defendant's broad waiver of his right to appeal his sentence, which contained exceptions only forgovernment's appeal, sentence that exceeded applicable statutory limits or sentence that unreasonably exceededSentencing Guidelines range, encompassed defendant's right to appeal consent-to-search condition of his super-vised release; supervised release statute clearly provided for district court's imposition of “any other condition itconsiders to be appropriate,” and waiver's term “sentence” included supervised release. U.S. v. Goodson, C.A.3(Pa.) 2008, 544 F.3d 529. Criminal Law 1026.10(4)

Defendant's three-year period of supervised release, for 46-month sentence upon guilty plea to wire fraud, condi-tioned on mandatory 60 drug tests per year in phased collection process, did not unjustifiably intrude on his pri-vacy and liberty, although he did not have history of drug abuse, since defendant had addictive personality thatcould lead to use of illegal drugs, as evidenced by his history of gambling problems and alcohol abuse resultingin three convictions and additional arrest for drunk driving, and public needed protection against his future crim-inal conduct as he did not genuinely appreciate gravity of his conduct and had not steered himself back onto pathof obedience to law, so drug testing would help ensure that he did not trade one vice for another and would re-main on path to rehabilitation. U.S. v. Paul, C.A.7 (Wis.) 2008, 542 F.3d 596. Sentencing And Punishment1996

Court of Appeals would review for plain error defendant's claim that District Court violated his rights under theSixth Amendment and the rule established in Apprendi v. New Jersey, which required that, other than prior con-

18 U.S.C.A. § 1343


viction, any fact that increases penalty for a crime beyond statutory maximum prescribed be submitted to juryand proven beyond a reasonable doubt, when it determined the amount of loss for purposes of sentencing de-fendant for wire fraud without submitting the issue to the jury, where he raised the claim for first time on appeal.U.S. v. Roberts, C.A.7 (Wis.) 2008, 534 F.3d 560, rehearing en banc denied , certiorari denied 129 S.Ct. 1028,555 U.S. 1139, 173 L.Ed.2d 297. Criminal Law 1042.3(3)

Criminal forfeiture was available for general mail and wire fraud violations, not merely those affecting financialinstitutions under statute permitting government to seek criminal forfeiture of the property of a convicted personthat would be subject to civil forfeiture, provided that no specific statutory provision was made for criminal for-feiture upon conviction; civil forfeiture was authorized for general wire fraud and mail fraud, but no specificstatutory provision permitted criminal forfeiture of proceeds from those crimes. U.S. v. Day, C.A.D.C.2008, 524F.3d 1361, 381 U.S.App.D.C. 48, certiorari denied 129 S.Ct. 295, 555 U.S. 887, 172 L.Ed.2d 151. Forfeitures

4; Postal Service 52

Four-level sentencing enhancement for being an organizer or leader of criminal activity for mortgage and mailfraud convictions was warranted; defendant recruited individuals with specialized skills to facilitate his scheme,he coordinated the group's efforts and directed them in the performance of their respective tasks, and, paid theother participants flat fees for their services and kept the loan proceeds for himself. U.S. v. Brodie,C.A.D.C.2008, 524 F.3d 259, 390 U.S.App.D.C. 66, rehearing en banc denied , certiorari denied 129 S.Ct. 1396,555 U.S. 1204, 173 L.Ed.2d 645, post-conviction relief denied 626 F.Supp.2d 120. Sentencing And Punishment

752

Six-year sentence imposed on defendant convicted of wire and honest services fraud and bribery for his part inoffering a $10,000.00 bribe to a city public works official in order to smooth the way for a real estate develop-ment project was reasonable where, in discussing a number of recent public corruption scandals, both in Illinoisand elsewhere, the judge was simply emphasizing the seriousness of the nature of the crime and discussing theneed for general deterrence, the district court also believed that defendant had engaged in bribery before, suchthat there was also a need for specific deterrence, the court noted that defendant had committed the crime out ofgreed rather than economic desperation, and the court nevertheless refused to give a sentence in the higher endof the range because defendant was 73 years old and suffered from serious kidney disease. U.S. v. Anderson,C.A.7 (Ill.) 2008, 517 F.3d 953. Bribery 16; Sentencing And Punishment 108; Sentencing And Pun-ishment 109; Telecommunications 1022

An initial lack of intent to defraud could not support a downward departure at defendant's mail and wire fraudsentencing, since doubts were connected to loss amount, not defendant's culpability, and crime of convictionalready specified an intent element. U.S. v. Ali, C.A.3 (Pa.) 2007, 508 F.3d 136. Sentencing And Punishment

870

Imposition of 51-month prison sentence was substantively and procedurally reasonable for defendant convictedof 21 counts of wire fraud, defense procurement fraud, and obstruction of justice; sentencing court acknow-ledged that the Sentencing Guidelines were advisory, sentence was at the bottom of the Guidelines range, thesentencing court considered the defendant's criminal history and characteristics, acknowledging defendant's ex-

18 U.S.C.A. § 1343


emplary life prior to the crimes, it considered the seriousness of the crimes, noting that several millions of dol-lars were at stake in the government contracts at issue, and it considered the mitigating factors asserted by thedefendant, including her depression. U.S. v. Lessner, C.A.3 (Pa.) 2007, 498 F.3d 185, certiorari denied 128 S.Ct.1677, 552 U.S. 1260, 170 L.Ed.2d 358. Sentencing And Punishment 66; Sentencing And Punishment103; Sentencing And Punishment 200; Sentencing And Punishment 645

Imposition of 109-month sentence on defendant convicted of wire fraud and securities fraud was reasonable; de-fendant was given opportunity to discuss the statutory sentencing factors and court discussed the nature of theoffenses and need to impose sentence that reflected seriousness of offense, promoted respect for the law,provided punishment, acted as deterrence, and court specifically stated it was taking into account fact that de-fendant had no prior criminal record. U.S. v. Jung, C.A.7 (Ill.) 2007, 473 F.3d 837, rehearing and suggestion forrehearing en banc denied, certiorari denied 128 S.Ct. 326, 552 U.S. 933, 169 L.Ed.2d 229, rehearing denied 128S.Ct. 972, 552 U.S. 1134, 169 L.Ed.2d 795, post-conviction relief denied 2009 WL 3575320. Sentencing AndPunishment 102; Sentencing And Punishment 373; Sentencing And Punishment 645

Wire fraud defendant was not entitled to three-level reduction in offense level for attempted criminal act, even ifhe never received the cars he fraudulently tried to obtain with false loan documents, since success of his schemewas not an element of the wire fraud offense. U.S. v. Gale, C.A.6 (Ohio) 2006, 468 F.3d 929, certiorari denied127 S.Ct. 3065, 551 U.S. 1162, 168 L.Ed.2d 758. Sentencing And Punishment 720

Sixty-month sentence imposed by district court on defendant convicted, on his guilty plea in prominent corpor-ate fraud case that involved significant monetary losses, of conspiracy to commit wire and securities fraud, offalsification of financial information filed with the Securities and Exchange Commission (SEC), and of wirefraud was not unreasonable, where district court, in imposing sentence, carefully considered statutory sentencingfactors and, while reducing advisory sentencing guidelines range by almost 300 months based on defendant's“extraordinary” cooperation and obvious remorse and acceptance of responsibility, also noted magnitude offraud committed and need for deterrence, suggested that any disparity between defendant's sentence and that ofco-conspirators was not unwarranted, and expressly noted that it had sufficient discretion under Booker to re-duce defendant's sentence, but declined to do so. U.S. v. Owens, C.A.11 (Ala.) 2006, 464 F.3d 1252. SentencingAnd Punishment 56; Sentencing And Punishment 66; Sentencing And Punishment 114; Senten-cing And Punishment 645

Federal district court's plain error in applying former version of Sentencing Guidelines in money laundering con-spiracy and wire fraud prosecution warranted remand even though Guidelines were advisory; correct Guidelinessentence first had to be calculated if calculation could serve as meaningful guide in sentencing, and fact findingsremained, e.g. whether defendant would be subject to “sophisticated laundering” enhancement, before determin-ation of error's harmlessness could be made. U.S. v. Baretz, C.A.7 (Ill.) 2005, 411 F.3d 867. Criminal Law1181.5(8)

Sentence enhancement for “deriv[ing] more than $1 million in gross receipts from the offense” could not be ap-plied to wire fraud defendant, a contractor who co-managed codefendant corporation with son/codefendant,simply by virtue of closely-held nature of corporation, corporation's receipt of more than $1 million, and defend-

18 U.S.C.A. § 1343


ant's alleged exercise of autocratic control over it; under applicable state law corporate form could be disreg-arded only upon showing that it had been used to deceive persons dealing with corporation. U.S. v. Castellano,C.A.7 (Ill.) 2003, 349 F.3d 483. Sentencing And Punishment 736

In prosecution, based on rebate program, for mail and wire fraud and conspiracy to commit mail and wire fraud,sentence did not violate Apprendi; sentence did not exceed total statutory maximum. U.S. v. Fredette, C.A.10(Wyo.) 2003, 315 F.3d 1235, dismissal of habeas corpus affirmed 65 Fed.Appx. 929, 2003 WL 1795858, certior-ari denied 123 S.Ct. 2100, 538 U.S. 1045, 155 L.Ed.2d 1084, dismissal of post-conviction relief affirmed 191Fed.Appx. 711, 2006 WL 2277989. Jury 34(7)

Consecutive sentences could be imposed under wire fraud statute for each telecommunication sent in furtheranceof defendant's scheme to defraud would-be purchaser of grain, including telex sent by defendant offering to sellgrain, telex sent by purchaser accepting defendant's offer, telex sent by purchaser authorizing letter of credit, tel-ex sent by bank confirming letter of credit arrangement, and telex sent by purchaser authorizing payment on let-ter of credit. U.S. v. Fermin Castillo, C.A.1 (Puerto Rico) 1987, 829 F.2d 1194. Criminal Law 29(5.5)

Sentence of five years on counts of inducing interstate travel to defraud, mail fraud, and wire fraud, was wellwithin statutory limit, and greater length of first defendant's sentence as compared to those of other defendantswas not abuse of discretion. U.S. v. Thirion, C.A.8 (S.D.) 1987, 813 F.2d 146. Postal Service 51; Senten-cing And Punishment 56; Telecommunications 1022

In prosecution for conspiracy, mail fraud, wire fraud, and obstruction of justice, sentence to ten years' imprison-ment and imposition of maximum committed fine as to each count was reasonable. U. S. v. Coven, C.A.2 (N.Y.)1981, 662 F.2d 162, certiorari denied 102 S.Ct. 1771, 456 U.S. 916, 72 L.Ed.2d 176. Conspiracy 51; Ob-structing Justice 177; Postal Service 51; Telecommunications 1022

In prosecution for fraud by wire and aiding and abetting fraud by wire, three-year sentence imposed upon de-fendant was not excessive. U. S. v. Olsen, C.A.8 (Neb.) 1978, 589 F.2d 351, certiorari denied 99 S.Ct. 1237, 440U.S. 917, 59 L.Ed.2d 468. Telecommunications 1022

District court did not abuse its discretion in imposing consecutive four-year sentences on each of two counts ofwire fraud. U. S. v. Bohr, C.A.8 (Mo.) 1978, 581 F.2d 1294, certiorari denied 99 S.Ct. 361, 439 U.S. 958, 58L.Ed.2d 351. Telecommunications 1022

Eight-year sentence imposed upon defendant convicted of securities fraud, wire fraud, mail fraud, and conspir-acy was not disparate or excessive. U. S. v. Mahler, C.A.2 (N.Y.) 1978, 579 F.2d 730, certiorari denied 99 S.Ct.205, 439 U.S. 872, 58 L.Ed.2d 184, certiorari denied 99 S.Ct. 592, 439 U.S. 991, 58 L.Ed.2d 666, rehearingdenied 99 S.Ct. 885, 439 U.S. 1104, 59 L.Ed.2d 66. Conspiracy 51; Postal Service 51; Securities Reg-ulation 194; Telecommunications 1022

Sentence of nine years imposed upon defendant, who had been convicted of wire fraud and conspiracy in con-

18 U.S.C.A. § 1343


nection with his alleged claims to use influence with various public figures to “fix” case in exchange for$150,000, was not abuse of discretion. U. S. v. Gray, C.A.5 (Fla.) 1978, 565 F.2d 881, certiorari denied 98 S.Ct.1587, 435 U.S. 955, 55 L.Ed.2d 807. Conspiracy 51; Telecommunications 1022

Where defendant stood convicted of cold-blooded mail fraud scheme, including the stalking and selecting of avictim with the intention of murdering him for the purpose of obtaining insurance money, and where the victimhad been found shot to death, 45-year sentence imposed upon defendant for violation of this section, section1341 of this title and for conspiracy was not excessive. U. S. v. Calvert, C.A.8 (Mo.) 1975, 523 F.2d 895, certi-orari denied 96 S.Ct. 1106, 424 U.S. 911, 47 L.Ed.2d 314. Conspiracy 51; Postal Service 51; Tele-communications 1022

Imposition on defendant of sentence of two years on each count of mail and wire fraud for which she had beenconvicted in second trial with suspension of execution of sentences and imposition of two years' probation wasnot a greater penalty than two years' probation on which she had been placed after conviction in first trial anddid not constitute denial of due process. U. S. v. Gross, C.A.8 (Iowa) 1969, 416 F.2d 1205, certiorari denied 90S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Constitutional Law 4725

Sentence of defendant to five years on each of six counts of fraud by wire with the sentences to run consecut-ively did not constitute cruel and unusual punishment where the sentence was in the term prescribed by Con-gress. Lindsey v. U. S., C.A.9 (Nev.) 1964, 332 F.2d 688. Sentencing And Punishment 1508

Defendant, who was convicted on four counts of fraud by use of interstate wire communications and given asentence of one year, was not prejudiced by fact there was no proof to sustain conviction on one of counts whenhe could have been sentenced to a fine of $1,000 and five years under each count. Gorman v. U. S., C.A.5 (Tex.)1963, 323 F.2d 51. Criminal Law 1177.3(1)

Defendant had not been prejudiced by counsel's alleged ineffective assistance at sentencing for not having hisrelatives testify at hearing, after defendant had been convicted of wire fraud charges, where judge had clearlystated that more mitigation evidence would not have mattered because defendant's recidivism and nature of of-fense led her to conclude that harsh sentence was necessary. Watkins v. U.S., C.D.Ill.2012, 887 F.Supp.2d 833.Criminal Law 1955

Transfer of funds between two foreign countries through a New York correspondent bank, standing alone, wasinsufficient to establish that wire fraud defendant's foreign conduct constituted a “crime against the UnitedStates” for purposes of a sentencing court's “relevant conduct” determination, so as to support consideration ofdefendant's foreign activities, allegedly involving the defrauding of foreign investors and committed while hewas a citizen of New Zealand, on the government's “jurisdictional theory.” U.S. v. Turner, E.D.N.Y.2009, 624F.Supp.2d 206. Sentencing And Punishment 668

Sentence of 105 months' incarceration imposed on defendant convicted of mail fraud, wire fraud, and moneylaundering, although at top of sentencing guidelines, was not excessive, in light of defendant's criminal history,

18 U.S.C.A. § 1343


which district court may have found understated real nefariousness of defendant's past conduct. McCann v. U.S.,D.Mass.2008, 528 F.Supp.2d 4, certificate of appealability denied 2008 WL 607158. Sentencing And Punish-ment 645

Contrary to federal prisoner's allegations of ineffective assistance, his trial counsel vigorously defended prison-er's right to a three-level decrease in his offense level for conspiracy to commit wire fraud, arguing both law andfacts in support thereof; counsel, an experienced and respected trial attorney, filed 17 objections to presentencereport relating to practically every issue contained therein, and made certain that his reasoning for each objec-tion was fully understood, and prisoner's representation by his attorney was made more difficult by prisoner'sown misconduct, in returning to his prior practice of fraudulent conduct, while on pretrial release. Morrell v.U.S., W.D.N.C.2006, 448 F.Supp.2d 680. Criminal Law 1953

Sentence of 60 months' imprisonment for wire fraud was warranted to reflect seriousness of offense and providejust punishment in light of large number of victims; statutory maximum sentence was 60 months and advisoryguidelines range was 57 to 71 months, defendant admitted in plea agreement that offense involved 50 or morevictims and loss of between $2,500,000 and $7,000,000, and that he had made misrepresentations with intent ofdeceiving investors and obtaining and retaining funds improperly, and 200 victims submitted statements to courtdescribing financial, familial, and emotional toll from dealings with defendant. U.S. v. West, S.D.N.Y.2005, 383F.Supp.2d 517. Sentencing And Punishment 736; Telecommunications 1022

District court's statements when imposing 66-month sentence for wire fraud, including that defendant like other“charlatans in religious disguise” took advantage of trust people quite naturally place in ordained ministers andreligious organizations in order to perpetrate fraud, and that his case “necessarily brings into focus the distaste-fulness of a fraudulent scheme and activity which is concealed, at least for a time, under some figurative robesof religion,” were comments on offense conduct, rather that indication that religion would play role in determin-ing his sentence in violation of sentencing guidelines and Fifth Amendment due process. U.S. v. Johnson,C.A.11 (Ga.) 2010, 374 Fed.Appx. 1, 2010 WL 1408265, Unreported. Sentencing And Punishment 48;Telecommunications 1022

A 57-month sentence, at the top of the sentencing guidelines range and within the statutory maximum of 60months' imprisonment for defendant convicted of wire fraud, was not unreasonable. U.S. v. Stroupe, C.A.4(S.C.) 2006, 200 Fed.Appx. 178, 2006 WL 2620209, Unreported, post-conviction relief denied 664 F.Supp.2d598. Telecommunications 1022

Isolated statement during sentencing, which defendant claimed demonstrated that the district court took anoverly narrow view of the causation element, was an insufficient basis from which to conclude that court misun-derstood the applicable legal framework governing diminished capacity departures in wire fraud prosecution.U.S. v. Miller, C.A.2 (Conn.) 2006, 178 Fed.Appx. 70, 2006 WL 1116092, Unreported. Sentencing And Punish-ment 862

District court's refusal to make downward departure under Sentencing Guidelines following defendant's convic-

18 U.S.C.A. § 1343


tion for wire fraud, in order to impose a sentence akin to that received by another person involved in the fraud,was a discretionary decision that was not reviewable on appeal. U.S. v. Munoz, C.A.8 (Neb.) 2000, 242 F.3d378, 2000 WL 1877466, Unreported. Criminal Law 1023(11)

205. ---- Evidentiary basis, sentence and punishment, practice and procedure

The District Court adequately resolved the loss amount dispute in sentencing defendant for fraud by wire affect-ing a financial institution, preparation of a false tax return, wire fraud and aggravated identity theft in findingbanks lost $107,931.96 in connection with 143 fraudulent tax returns prepared by defendant, despite argumentthat the District Court did not make an explicit finding regarding the amount of loss, where the Court had re-solved the disputed issues by finding that the government had established the loss amount by clear and convin-cing evidence. U.S. v. Stargell, C.A.9 (Cal.) 2013, 725 F.3d 1015. Sentencing and Punishment 996

District court did not abuse its discretion in applying manager or supervisor enhancement when sentencing de-fendant for wire fraud, where defendant had received information from foreign co-schemers regarding funds be-ing sent by victims and distributed that information to his crew, he directed his crew to receive victims' fundsusing variety of aliases, he obtained counterfeit alias identification documents for co-schemers, he directed co-schemers to transmit funds to foreign co-schemers, and he admitted in his plea that he held managerial role;even if defendant was not only schemer with those duties, presence of many managers did not preclude any onemanager from receiving enhancement. U.S. v. Cerna, C.A.7 (Ill.) 2012, 676 F.3d 605. Sentencing and Punish-ment 752

District court could accept any undisputed portion of presentence report (PSR) as a finding of fact, and thuscourt was not required to hold special hearing to determine whether to grant three-level sentencing reduction foracceptance of responsibility, in prosecution for wire fraud stemming from scheme to defraud United States De-partment of Agriculture (USDA) by trafficking in food stamp benefits, where defendant did not dispute PSR'sfinding that he had told probation officer that he was innocent and had pleaded guilty just to get rid of the case.U.S. v. Ali, C.A.7 (Ill.) 2010, 619 F.3d 713, certiorari denied 131 S.Ct. 965, 178 L.Ed.2d 794. Sentencing AndPunishment 299

Evidence was sufficient to establish nexus between defendant, a paramedical examiner, and each of 1,762 fraud-ulent submissions of reimbursement claims for life insurance health examinations never performed, as requiredto support loss calculation under the Sentencing Guidelines based on all 1,762 submissions when sentencing de-fendant for conviction of wire fraud, though FBI actually investigated only 120 submissions; defendant con-ceded responsibility for 20 submissions charged in indictment, and there were striking similarities betweencharged submissions and remaining 1,742 uncharged submissions, including that each was submitted by defend-ant's e-mail account, using her unique login and password. U.S. v. Hodge, C.A.8 (Mo.) 2009, 588 F.3d 970. Sen-tencing And Punishment 978

Findings that defendant convicted of wire fraud and conspiracy to commit wire fraud held himself out to beUnited States marshal and used such misrepresentations to facilitate fraudulent scheme to obtain real property atdeflated price, such as by telling one of intended victims that squatters had not reentered property only becauseof his continuing involvement in purchase of property, were not clearly erroneous, and thus supported applica-

18 U.S.C.A. § 1343


tion of sentence enhancement under Sentencing Guidelines for abuse of position of trust. U.S. v. Brockenbor-rugh, C.A.D.C.2009, 575 F.3d 726, 388 U.S.App.D.C. 28, rehearing en banc denied. Sentencing And Punish-ment 758

District Court's finding, by a preponderance of the evidence, that loss from defendant's wire fraud offense was inexcess of $400,000, warranting 14-level increase in his offense level under the Sentencing Guidelines, did notviolate rule established in Apprendi v. New Jersey, which required that, other than prior conviction, any fact thatincreases penalty for a crime beyond statutory maximum prescribed be submitted to jury and proven beyond areasonable doubt, where sentence imposed, 48 months' imprisonment and restitution in amount of $262,943.52,was less than the 20-year statutory maximum. U.S. v. Roberts, C.A.7 (Wis.) 2008, 534 F.3d 560, rehearing enbanc denied , certiorari denied 129 S.Ct. 1028, 555 U.S. 1139, 173 L.Ed.2d 297. Jury 34(7); SentencingAnd Punishment 973.5

District court committed legal error by employing reasonable doubt standard of proof, rather than preponderanceof the evidence standard of proof, in calculating defendants' Guidelines sentence for mail and wire fraud of-fenses, requiring remand. U.S. v. Ali, C.A.3 (Pa.) 2007, 508 F.3d 136. Sentencing And Punishment 973.3

Imposition of 18-month sentence for defendant's wire fraud offense was reasonable; district court properlyweighed defendant's intent to repay loan fraudulently obtained and his family problems with his extensive crim-inal history category, and district court clearly understood its duty to consider all relevant statutory sentencingfactors. U.S. v. Gale, C.A.6 (Ohio) 2006, 468 F.3d 929, certiorari denied 127 S.Ct. 3065, 551 U.S. 1162, 168L.Ed.2d 758. Sentencing And Punishment 95; Telecommunications 1022

District court did not clearly err in accepting government's loss calculation at sentencing for money launderingand wire fraud arising from defendant's purchase of food stamps with cash, inasmuch as government, giving de-fendant substantial benefit of the doubt, produced loss figure representing best estimate of loss based on the reli-able evidence available to government, and, although defendant was illiterate and argued he could not be re-sponsible for figure he offered on his Food Stamp Program application, he had opportunity to change his applic-ation when it was verbally reviewed with him. U.S. v. Haddad, C.A.7 (Ill.) 2006, 462 F.3d 783. Sentencing AndPunishment 978

Two-point sentence enhancement under Sentencing Guidelines for offense involving misrepresentation that de-fendant acted on behalf of charitable, educational, religious, or political organization was supported by evidencethat, in seeking bridge loans, defendant convicted of mail fraud, wire fraud, and money laundering representedthat her for-profit business was non-profit, humanitarian project providing legal services to indigent criminal de-fendants and that she was in process of gaining primary funding for project from another source, through whichshe would pay high returns on bridge loans, and that defendant submitted letter to lenders stating that she wouldreceive $2,000,000 per week for 40 weeks and that part of money would be used for humanitarian projects. U.S.v. Edelmann, C.A.8 (Ark.) 2006, 458 F.3d 791, rehearing and rehearing en banc denied , habeas corpus dis-missed 2011 WL 2517273, affirmed 471 Fed.Appx. 278, 2012 WL 2052954. Sentencing And Punishment689

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Sentencing court in prosecution for wire fraud in sale of franchises could conclude that defendant engaged infraudulent business practices while on bond; although testimony was conflicting on whether computer softwarepackage for franchise worked, it was adequate to support conclusion that defendant was continuing past patternof selling franchise packages that franchisees were not able to use as promised. U.S. v. Choate, C.A.8 (Mo.)1996, 101 F.3d 562, rehearing denied. Sentencing And Punishment 975

Where record contained no unequivocal statement by trial judge as to whether defendant's decision to go to trialwas or was not considered in imposing sentence, after judge had stated that trial had been a total waste of publicfunds, that defendant was clearly and unquestionably guilty, and that there should have been no trial, case had tobe remanded for resentencing so that record could be clarified on that point. U.S. v. Hutchings, C.A.2 (N.Y.)1985, 757 F.2d 11, certiorari denied 105 S.Ct. 3511, 472 U.S. 1031, 87 L.Ed.2d 640. Criminal Law1181.5(8)

Imposition of custodial term of ninety months, to be followed by three years of supervised release and$1,216,000 restitution sentence, was warranted following defendant's conviction for wire fraud, where defendantwas founder and member of executive council of government contractor charged with providing services to at-risk children, organization failed to provide services for which it billed government, resulting in death of child,and defendant led organization's attempt to conceal its malfeasance, and misled investigators as to his role. U.S.v. McNeill, E.D.Pa.2010, 709 F.Supp.2d 360. Sentencing And Punishment 752; Sentencing And Punish-ment 761; Sentencing And Punishment 1936; Telecommunications 1022

If established, transfer of funds between two foreign countries through a New York correspondent bank, com-bined with other factors, particularly including the commingling and use of funds from domestic and foreign in-vestors thereafter in a Ponzi scheme, would support consideration of defendant's foreign activities, allegedly in-volving the defrauding of foreign investors and committed while he was a citizen of New Zealand, as “relevantconduct” for sentencing purposes. U.S. v. Turner, E.D.N.Y.2009, 624 F.Supp.2d 206. Sentencing And Punish-ment 668

Defendant was entitled to five-level reduction in base offense level at sentencing for tax evasion and mail andwire fraud, based on “charitable, or public service” and “similar prior good works”; after emigrating from India,defendant helped found center for other followers of Jainism, an ancient Indian religion, and translated, printed,and distributed sacred texts, provided personal support to members of community, and organized volunteers tocook meals for the homeless, collected, sorted, and shipped supplies to survivors of earthquake in India, and reg-ularly traveled to India to volunteer in hospitals caring for children and the elderly. U.S. v. Mehta, D.Mass.2004,307 F.Supp.2d 270. Sentencing And Punishment 866

Where trial court was not in any degree influenced by matters contained in presentence report which defendantcontended to be erroneous, where facts of case alone led to court's decision in sentencing pursuant to guilty pleato three counts of indictment charging wire fraud, and where, if every item complained of by defendant had beenexcised from presentence report, sentence would not have been less, errors, if any, in presentence report did notwarrant reduction of sentence. McComy v. U. S., E.D.Mo.1976, 420 F.Supp. 656. Sentencing And Punishment

2251

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Evidence was sufficient to support finding that defendant worked in concert with co-conspirators to fraudulentlyprocure investment capital, and thus loss amount of $1,041,000 was properly attributed to defendant in mail andwire fraud prosecution; the conspiracy that defendant agreed to join was the jointly undertaken operation of in-vestment company as a vehicle to solicit investments based on fraudulent representations. U.S. v. Blood, C.A.3(Del.) 2007, 232 Fed.Appx. 199, 2007 WL 2310025, Unreported. Sentencing And Punishment 736

Evidence was sufficient to establish that defendant was part of a jointly conducted criminal scheme that resultedin total amount of loss of $997,540.23, rather than just the $41,734.41 that was directly caused by defendant,thus supporting increase of base offense level for purposes of sentencing on conviction for wire fraud and aidingand abetting the fraud; defendant mutually assisted and was assisted by her codefendants through the operation'sjoint advertising, office space, arrangements made with loan companies, information shared at meetings, and useof standardized forms for committing fraud. U.S. v. Soehnge, C.A.10 (Colo.) 2007, 210 Fed.Appx. 816, 2007WL 4213, Unreported. Sentencing And Punishment 674

Finding that there was no connection between defendant's alleged diminished capacity and the wire fraud of-fense was not clearly erroneous; district court ordered that two mental health specialists examine defendant spe-cifically in contemplation of her downward departure motion, and carefully considered the record evidence andcounsel's arguments on the issues of defendant's psychological condition and its casual connection to the wirefraud offense, before finding causation to be lacking based on expert's report, which set forth that defendant's“poor judgment” led her to commit the offense and her gambling addiction did “not excuse her criminal behavi-ors.” U.S. v. Miller, C.A.2 (Conn.) 2006, 178 Fed.Appx. 70, 2006 WL 1116092, Unreported. Sentencing AndPunishment 862

Information provided to FBI agent by telephone company was sufficient to ascertain a correct loss amount, forpurposes of defendant's sentencing for wire fraud offenses based on her creation of fraudulent subscriber agree-ments for cellular telephones, even though nature of scheme made it difficult for company to determine whichaccounts were fraudulent and how many telephones were associated with those accounts; company determinedamount of its loss by reference to amounts billed for service but uncollected. U.S. v. Berry, C.A.10 (Okla.) 2003,85 Fed.Appx. 63, 2003 WL 22941755, Unreported. Sentencing And Punishment 736

Finding that defendant who pleaded guilty to wire fraud was leader or organizer of criminal activity involvingfive or more participants, and thus was subject to four-point increase in his offense level under SentencingGuidelines, was supported by evidence that defendant received largest share of compensation from fraudulentloans, formed group that participated in fraud, and recruited accomplices. U.S. v. Everson, C.A.9 (Idaho) 2003,69 Fed.Appx. 843, 2003 WL 21480331, Unreported. Sentencing And Punishment 976

206. ---- Restitution, sentence and punishment, practice and procedure

In ordering real estate attorney who represented seller in real estate transactions involving “dual price” purchas-ing agreements and was convicted of conspiracy to commit bank and wire fraud, bank fraud, and wire fraud topay restitution, district court did not clearly err in finding that financial institutions were “victims” under Man-datory Victims Restitution Act (MVRA); though defendant argued that institutions were bad actors whose con-duct caused sub-prime mortgage crisis, one institution was original lender on seven of nine mortgages at issue

18 U.S.C.A. § 1343


and the other two each directly or indirectly acquired the remaining two loans from the original lender, thusmaking them all parties “directly and proximately harmed” by mortgage fraud conspiracy. U.S. v. Engelmann,C.A.8 (Iowa) 2013, 720 F.3d 1005. Sentencing and Punishment 2121

Defendant, as former Chief of Commodity Procurement Section within the United Nation's Procurement Divi-sion, properly had been ordered under Mandatory Victims Restitution Act (MVRA) to reimburse United Nationsfor outside counsel attorney fees associated with investigation and other services that arose from defendant'shonest services fraud and theft involving federal funds, even if in-house counsel could have provided same ser-vices at much reduced fixed cost. U.S. v. Bahel, C.A.2 (N.Y.) 2011, 662 F.3d 610. Sentencing and Punishment

2153; Sentencing and Punishment 2155

District court did not clearly err in relying on testimony of United States Department of Agriculture (USDA)agent in determining amount of loss from food stamp fraud, for purposes of restitution award, forfeiture order,and loss amount for sentencing, absent evidence to refute government's loss or forfeiture calculations, in prosec-ution for wire fraud stemming from scheme to defraud United States Department of Agriculture (USDA) by traf-ficking in food stamp benefits. U.S. v. Ali, C.A.7 (Ill.) 2010, 619 F.3d 713, certiorari denied 131 S.Ct. 965, 178L.Ed.2d 794. Forfeitures 5; Sentencing And Punishment 323; Sentencing And Punishment2188(4)

Imposition of restitution order of $28,982.06 was proper for wire fraud defendant who pled guilty to fraudu-lently obtaining loans equaling $60,000; defendant did not dispute accuracy of restitution calculated in presen-tence investigation report (PSR), additional money paid by defendant to victim was subtracted from restitutionamount, and there was no suggestion that victim was somehow refusing to cooperate. U.S. v. Gale, C.A.6 (Ohio)2006, 468 F.3d 929, certiorari denied 127 S.Ct. 3065, 551 U.S. 1162, 168 L.Ed.2d 758. Sentencing And Punish-ment 2167; Sentencing And Punishment 2176

Restitution ordered in connection with defendant's wire fraud convictions should have been conditioned on out-come of victim's civil fraud action, so as to avoid possibility of double recovery for victim. U.S. v. FerminCastillo, C.A.1 (Puerto Rico) 1987, 829 F.2d 1194. Sentencing And Punishment 2158

Where sentence imposed on defendant convicted of wire fraud in scheme to defraud employer required him, ascondition of probation, to make restitution to employer for money it lost on client's account, but record indicatedthat employer had filed suit against client to recover amount owed, sentence would be modified to provide that ifemployer recovered anything in its civil action against client, defendant's obligation to make restitution wouldbe reduced pro tanto. U.S. v. Gaultier, C.A.8 (Mo.) 1984, 727 F.2d 711. Criminal Law 1184(4.1)

Even if writ of error coram nobis was available to correct restitution order, defendant's obligation to paymonthly restitution payments did not constitute continuing significant collateral consequence, as required to jus-tify issuance of writ of coram nobis, even if restitution order was overly broad, since restitution was “sunk cost”rather than continuing disability that added injury over time. U.S. v. Mirza, D.Mass.2010, 755 F.Supp.2d 329.Criminal Law 1443

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Appropriate sentence for wire fraud, arising from defendant's receipt of social security disability benefits whilerunning his own business, was one year and one day; crime was non-violent, efforts at concealment constitutedaggravating factor, defendant agreed to plead guilty and accepted responsibility, defendant agreed to sell houseand apply proceeds to restitution, he appeared to be good father, he could more easily pay restitution by remain-ing in community, confinement was necessary to reflect seriousness of crime, and government could havecharged him under another statute providing for lighter sentences. U.S. v. Carey, E.D.Wis.2005, 368 F.Supp.2d891. Sentencing And Punishment 114; Telecommunications 1022

207. Scope of review, practice and procedure--Generally

In reviewing jury verdict of guilty in prosecution for conspiracy, mail fraud, fraud by wire, and fraudulent in-ducement of interstate travel, reviewing court was not free to try the case de novo but was limited to determiningwhether there was sufficient evidence to support the verdict. U. S. v. Wayman, C.A.5 (Ga.) 1975, 510 F.2d 1020, certiorari denied 96 S.Ct. 84, 423 U.S. 846, 46 L.Ed.2d 67. Criminal Law 1159.2(3)

Connection between telephone call and caller may be established circumstantially; issue for trial judge in de-termining whether required foundation for introduction of evidence has been established is whether proof is suchthat jury, acting as reasonable men, could find its authorship as claimed by proponent; scope of appellate reviewis confined to determining whether admission constituted abuse of discretion in determining that prima faciecase had been made out. Spindler v. U. S., C.A.9 (Cal.) 1964, 336 F.2d 678, certiorari denied 85 S.Ct. 894, 380U.S. 909, 13 L.Ed.2d 797. Criminal Law 386; Criminal Law 1153.21

208. ---- Issues reviewable, scope of review, practice and procedure

Decision to allow prosecution to cross-examine defendant charged with wire fraud and conspiracy to commitwire fraud arising from scheme to buy real property at deflated price about his sexual relationship with his realestate agent was subject to review for abuse of discretion. U.S. v. Brockenborrugh, C.A.D.C.2009, 575 F.3d 726,388 U.S.App.D.C. 28, rehearing en banc denied. Criminal Law 1153.18(2)

In prosecution for conspiracy, mail fraud, wire fraud, and obstruction of justice, given defendants' failure to alerttrial judge to purpose they now asserted for their offer of proof and doubtful weight of evidence even for pur-pose, court would not upset trial court's ruling. U. S. v. Coven, C.A.2 (N.Y.) 1981, 662 F.2d 162, certioraridenied 102 S.Ct. 1771, 456 U.S. 916, 72 L.Ed.2d 176. Criminal Law 670

Where no objection was made at trial, point of error was not preserved for appellate review, absent plain error.U. S. v. Jones, C.A.5 (Fla.) 1977, 554 F.2d 251, certiorari denied 98 S.Ct. 202, 434 U.S. 866, 54 L.Ed.2d 142.Criminal Law 1030(1)

Since issue of whether defendant was entrapped into committing offense of wire fraud in the particular district inwhich he was prosecuted was not raised below, court of appeals could not notice same unless it amounted toplain error. U. S. v. Patterson, C.A.5 (Tex.) 1976, 528 F.2d 1037, rehearing denied 534 F.2d 1113, certioraridenied 97 S.Ct. 361, 429 U.S. 942, 50 L.Ed.2d 313. Criminal Law 1028

18 U.S.C.A. § 1343


Issue which was not raised in the pleadings or considered by the trial court could not be raised for the first timeupon appeal. Kern v. Prudential Ins. Co. of America, C.A.8 (Mo.) 1961, 293 F.2d 251, certiorari denied 82 S.Ct.443, 368 U.S. 969, 7 L.Ed.2d 397. Federal Courts 611

On appeal by defendants to court of appeals from judgments of federal district court on verdict finding defend-ants guilty of violating this section and section 1341 of this title, defendants could not question failure of districtcourt to give certain instructions, where none of the defendants made any specific request for such instructions.Goodman v. U.S., C.A.8 (N.D.) 1960, 273 F.2d 853. Criminal Law 1038.3

209. ---- Sentence, scope of review, practice and procedure

District court did not believe that United States Sentencing Guidelines (USSGs) sentence was required whensentencing defendant for wire fraud by carefully considering statutory sentencing factors and focusing on needfor general and specific deterrence. U.S. v. Cerna, C.A.7 (Ill.) 2012, 676 F.3d 605. Sentencing and Punishment

661.5

In view of difference between charged conspiracy to commit mail fraud and wire fraud and substantive mailfraud offenses, court of appeals would not apply concurrent sentence doctrine to uphold defendant's conspiracyconviction despite absence of evidence implicating anyone else as coconspirator, but would decide conviction'svalidity. U.S. v. Hopkins, C.A.10 (Okla.) 1982, 716 F.2d 739, on rehearing 744 F.2d 716. Criminal Law1177.3(1)

Where defendant, who was convicted under four count indictment charging violation of this section, and whowas given sentences aggregating 9 1/2 years, and who contended that sentences constituted cruel and unusualpunishment, had a long criminal record going back many years, court of appeals would not depart from rule thatsentence within limits of statute is within discretion of trial court and cannot be changed by reviewing court.Sibley v. U. S., C.A.5 (La.) 1965, 344 F.2d 103, certiorari denied 86 S.Ct. 405, 382 U.S. 945, 15 L.Ed.2d 354.Criminal Law 1156.2

210. Harmless or prejudicial error, practice and procedure--Generally

Trial court's comment, made to defense attorney in bank and wire fraud case outside of hearing of jury, that hehad restrained his “shock and utter disbelief” at attorney's putting a “mantel of innocence on your client fromthis crime he committed”, did not deny defendant a fair trial. U.S. v. Seago, C.A.6 (Tenn.) 1991, 930 F.2d 482.Criminal Law 655(5)

In prosecution for using telephone communications in interstate commerce as part of a fraudulent scheme to ob-tain money, the court did not commit reversible error by referring to defendant as a co-conspirator or to the in-dictment as a conspiracy, even though no separate conspiracy indictment was entered. U. S. v. Snyder, C.A.5(Ala.) 1974, 505 F.2d 595, certiorari denied 95 S.Ct. 1433, 420 U.S. 993, 43 L.Ed.2d 676. Criminal Law1166.22(2)

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Defendants in second trial on charges of mail and wire fraud were not prejudiced by fact that witnesses whoidentified bank and telegraph company records which were allegedly used in fraudulent scheme were beforecourt pursuant to ordinary subpoenas where records were in possession of court between defendants' first andsecond trials and had originally been brought to grand jury by subpoena duces tecum. U. S. v. Gross, C.A.8(Iowa) 1969, 416 F.2d 1205, certiorari denied 90 S.Ct. 1245, 397 U.S. 1013, 25 L.Ed.2d 427. Criminal Law

1170.5(1)

Trial judge's dismissal of count at close of all testimony, in mail fraud, and interstate wire, radio, or televisionfraud prosecution, and trial judge's statement, in front of jury, “Let the record show that Count 6 is dismissed”was not prejudicial where judge had reserved ruling on defendant's motion for acquittal on all counts at close ofgovernment's testimony, and defendant then moved for dismissal of remaining counts and did not object to dis-missal of the one count. Woodring v. U. S., C.A.8 (Mo.) 1963, 311 F.2d 417, certiorari denied 83 S.Ct. 1304,373 U.S. 913, 10 L.Ed.2d 414. Criminal Law 1166(1)

211. ---- Admissibility of evidence, harmless or prejudicial error, practice and procedure

Any error in convicting defendant of wire fraud, despite defendant's argument that government's evidence as towire fraud lacked convergence, did not constitute plain error, where Court of Appeals had never addressed con-vergence argument and other circuits were split on issue, and there was ample evidence to support conclusionthat defendant's transmission of fraudulently-permitted plans by wire to South Carolina Department of Healthand Environmental Control, just as with mailing those same plans to county, constituted attempt to lull state reg-ulators into ignoring his fraud, or to forestall its discovery by DHEC or county, so that airport runway expansionproject could continue. U.S. v. Wynn, C.A.4 (S.C.) 2012, 684 F.3d 473. Criminal Law 1030(3)

Probative value of defendant's cross-examination testimony about his sexual relationship with real estate agentoutweighed potential for unfair prejudice in prosecution for, inter alia, wire fraud and conspiracy to commit wirefraud, inasmuch as such evidence spoke to central issue in case, whether defendant was knowing participant infraudulent scheme to purchase real property at deflated price or innocent real estate investor caught up in agent'sthievery, and only prejudicial effect identified by defendant was possible inference that person who cheated onhis wife could not be trusted, which was mitigated by court's instruction to jury to disregard relationship as evid-ence of bad character. U.S. v. Brockenborrugh, C.A.D.C.2009, 575 F.3d 726, 388 U.S.App.D.C. 28, rehearingen banc denied. Criminal Law 338(7)

District court's error, if any, in allowing prosecution in wire fraud proceedings to introduce testimony askingdoctor whether she would have reached a different opinion of defendant had she known that defendant's medicalhistory was not as represented, and further questioning witness about defendant's prior requests for Veterans Ad-ministration funding for unsubstantiated claim, was harmless; the evidence offered in support of defendant'swire fraud was substantial, and included testimony that defendant conceived of and directed the fraudulentscheme, recruited others to assist, and prepared all the false time sheets and invoices. U.S. v. Ratliff-White,C.A.7 (Ill.) 2007, 493 F.3d 812, certiorari denied 128 S.Ct. 1070, 552 U.S. 1141, 169 L.Ed.2d 808. CriminalLaw 1169.9

District court's error in admitting statements made by defendant's former attorney, in which attorney stated that

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defendant's actions were improper and illegal and that defendant had concealed his security trading activitiesfrom investors, as non-hearsay party admissions was harmless in defendant's wire fraud and securities fraud pro-secution; defendant made admissions in both an affidavit and a bankruptcy stipulation which severely damagedhis defense, and evidence presented against defendant was overwhelming. U.S. v. Jung, C.A.7 (Ill.) 2007, 473F.3d 837, rehearing and suggestion for rehearing en banc denied, certiorari denied 128 S.Ct. 326, 552 U.S. 933,169 L.Ed.2d 229, rehearing denied 128 S.Ct. 972, 552 U.S. 1134, 169 L.Ed.2d 795, post-conviction relief denied2009 WL 3575320. Criminal Law 1169.12

Erroneous admission of evidence regarding settlement between defendant and his investment partners did notrise to level of plain error, in trial for wire fraud and money laundering, given that ample other evidence estab-lished substance of testimony regarding settlement, which did not indicate that defendant furnished or offered tofurnish valuable consideration, but rather simply recounted defendant's conduct. U.S. v. Bailey, C.A.10 (Kan.)2003, 327 F.3d 1131. Criminal Law 1036.1(3.1)

Any error in excluding testimony of defendants' former attorney regarding defendants' successful civil action forcommissions as result of loan-finding efforts was harmless, in that defendants, who were charged with wire andmail fraud in connection with fraudulent loan brokerage scheme, offered evidence to establish their good faithand lack of criminal intent in operation of business and other testimony was offered on issue, including satisfiedborrower's testimony, testimony from individual who occasionally provided funding to persons working with de-fendants, and testimony regarding defendants' efforts to cooperate with Better Business Bureau and to collectcommissions. U.S. v. Humphrey, C.A.5 (Tex.) 1997, 104 F.3d 65, certiorari denied 117 S.Ct. 1833, 520 U.S.1235, 137 L.Ed.2d 1038. Criminal Law 1169.10

Even assuming duffel bags and their contents were acquired in unconstitutional manner, error, if any, in admit-ting evidence was harmless beyond reasonable doubt, where government's chief witness furnished critical evid-ence against defendants, described every aspect of stowaway theft scheme, including various articles carriedaboard plane to implement plan, and explained that duffel bags contained bricks to be exchanged for any goldbullion obtained from shipments, so that introduction of items themselves was essentially cumulative and theirevidentiary value was limited to corroboration of testimony of witness. U.S. v. Johnson, C.A.11 (Ga.) 1983, 713F.2d 633, certiorari denied 104 S.Ct. 1447, 465 U.S. 1081, 79 L.Ed.2d 766. Criminal Law 1169.2(7)

In prosecution for wire fraud, no prejudicial error was committed in admitting, over hearsay objection, evidenceof phone calls between defendant and victim inasmuch as defendant met victim on number of occasions and hadoccasion to be familiar with his voice and as victim met defendant at place and time agreed upon in phone calls.U. S. v. King, C.A.8 (Mo.) 1978, 590 F.2d 253, certiorari denied 99 S.Ct. 1538, 440 U.S. 973, 59 L.Ed.2d 790.Criminal Law 1169.1(7)

In prosecution for using interstate wire facilities in carrying out scheme to defraud certain hotel casinos and forconspiracy involving same scheme, refusal to suppress testimony of government witness, who had been indictedon one count of same indictment and who subsequently pleaded guilty, was not error where court was fully in-formed of witness' change of plea to guilty and defendants were permitted to make full record of their assertionthat prosecutor withheld information concerning witness' prior criminal record and to cross-examine witness at

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length. U. S. v. Scallion, C.A.5 (La.) 1976, 533 F.2d 903, certiorari denied 97 S.Ct. 824, 429 U.S. 1079, 50L.Ed.2d 799, rehearing denied 97 S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548 F.2d 1168, certi-orari denied 98 S.Ct. 2843, 436 U.S. 943, 56 L.Ed.2d 784. Criminal Law 508(3)

In prosecution for wire fraud pertaining to settlement agreement with telephone company with interconnectinglines, whether or not prejudicial nature of letters, offered for purposes of cross-examination, would have warran-ted the striking of testimony of defendant's accountant, error, if any, was harmless, where all accountant couldhave shown would have been an overall loss which would not have justified fraudulent practices and thus ac-countant's testimony could not have helped defendant. U. S. v. Henny, C.A.9 (Wash.) 1975, 527 F.2d 479, certi-orari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815. Criminal Law 1168(4)

Where all written or printed matter on waiver of extradition and fingerprint card bearing notations of convictionsof defendant were masked before documents were received in evidence to show signature of defendant thereon,and there was nothing to show that jury could have seen any of writing, printing, or fingerprinting on documentsduring incidental handling of documents before written or printed matter on documents was masked, no action toprejudice of defendant was made to appear. Sibley v. U. S., C.A.5 (La.) 1965, 344 F.2d 103, certiorari denied 86S.Ct. 405, 382 U.S. 945, 15 L.Ed.2d 354. Criminal Law 1169.11

Refusal to exclude testimony of victim of scheme to defraud as to what he and Mexican police officials said anddid out of presence of defendants, being prosecuted for violation of this section and for conspiracy to do so, wasnot error, where testimony was admitted to prove words as operative verbal facts or actions done by others inpresence of witness who testified of his own direct knowledge and who was subject to cross-examination. Huffv. U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certiorari denied 83 S.Ct. 289, 371 U.S. 922, 9 L.Ed.2d 230. CriminalLaw 419(2.10)

212. ---- Comments or conduct of counsel, harmless or prejudicial error, practice and procedure

Trial counsel's failure to request a downward departure because of defendant's status as a deportable alien wasnot clearly prejudicial to defendant, as required for ineffective assistance of counsel claim, given that the districtcourt made clear that it would not have departed downward. U.S. v. Brodie, C.A.D.C.2008, 524 F.3d 259, 390U.S.App.D.C. 66, rehearing en banc denied , certiorari denied 129 S.Ct. 1396, 555 U.S. 1204, 173 L.Ed.2d 645,post-conviction relief denied 626 F.Supp.2d 120. Criminal Law 1956

Prosecutor's comparing defense to slick sales operation like that carried out by companies engaged in mail andwire investment fraud scheme, of which companies' defendants were principals, was of inconsequential prejudi-cial effect, if any, in light of overwhelming evidence of guilt. U.S. v. Ranney, C.A.1 (Mass.) 1983, 719 F.2d1183. Criminal Law 1171.1(4)

Any exaggeration in prosecuting attorney's argument in prosecution for unauthorized use of telephone lines todefraud telephone company that there was evidence that codefendant on more than one occasion told party withwhom he was talking not to try to call codefendant back was harmless, in view of evidence that defendant had infact done so on one occasion and of corrective instruction. Scott v. U. S., C.A.5 (Ga.) 1971, 448 F.2d 581, certi-

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orari denied 92 S.Ct. 955, 405 U.S. 921, 30 L.Ed.2d 791. Criminal Law 1171.3

Government's summation referring to anti-American rioting in Latin America, in prosecution for sending cablesbetween New York and Rio de Janeiro in furtherance of scheme to defraud banks, was not sufficiently prejudi-cial to require reversal. U. S. v. Whiting, C.A.2 (N.Y.) 1962, 308 F.2d 537, certiorari denied 83 S.Ct. 722, 372U.S. 909, 9 L.Ed.2d 718, certiorari denied 83 S.Ct. 734, 372 U.S. 919, 9 L.Ed.2d 718. Criminal Law1171.1(3)

Counsel did not provide ineffective assistance in defendant's trial on wire fraud charges associated with auto-mobile financing scheme, where most of defendant's criticisms related to strategic decisions, such as whether tocross-examine specific witness, and evidence of his guilt was overwhelming; counsel was trying to emphasizeseveral themes throughout trial that check services provided inadequate training, use of birddog or finder's feescreated incentives for individuals to refer friends with poor credit to defendant, and management of dealershipmay have either played greater role in offense or at least turned blind eye to conduct because defendant wasselling large number of cars. Watkins v. U.S., C.D.Ill.2012, 887 F.Supp.2d 833. Criminal Law 1922; Crim-inal Law 1925

Evidence at trial established each element of two offenses with which defendant was charged, wire fraud andconspiracy to make false statements to financial institutions to obtain mortgage loans, and therefore defendantwas not prejudiced by counsel's alleged ineffective assistance in failing to challenge indictment and verdict formas defective and in failing to challenge wire fraud charges. Brodie v. U.S., D.D.C.2009, 626 F.Supp.2d 120.Criminal Law 1895; Criminal Law 1948

213. ---- Examination of witnesses, harmless or prejudicial error, practice and procedure

Prosecutor's failure to disclose until seven days after trial that the FBI had learned that prosecution witness hadbeen previously involved in a fraudulent loan application on behalf of her niece was merely cumulative of otherimpeachment evidence, and therefore did not constitute a Brady violation. U.S. v. Brodie, C.A.D.C.2008, 524F.3d 259, 390 U.S.App.D.C. 66, rehearing en banc denied , certiorari denied 129 S.Ct. 1396, 555 U.S. 1204, 173L.Ed.2d 645, post-conviction relief denied 626 F.Supp.2d 120. Criminal Law 1999

In view of overwhelming evidence of guilt, any error in allowing evidence, in prosecution under section 1951 ofthis title and for mail and wire fraud, of witness' statement that she had the defendant, former director of muni-cipal convention center, “in her hip pocket” and testimony of another witness that he was paying director washarmless. U.S. v. Martin, C.A.8 (Mo.) 1984, 751 F.2d 258. Criminal Law 1169.1(6)

In prosecution of defendants for using mails and interstate telephones to defraud insurance companies by obtain-ing collision or liability insurance on automobiles and collecting on staged or faked automobile collisions, wheretrial court on direct examination had ruled that accidents not covered by indictment were inadmissible but al-lowed government to cross-examine defendants as to accidents which were not covered by indictment, prejudi-cial error occurred since each defendant had a constitutional right not to be a witness against himself and knewthat when he took the stand his voluntary offer of testimony was a waiver thereof, but waiver was restricted to

18 U.S.C.A. § 1343


relevant facts and each had a right to believe that evidence as to other accidents was not relevant. Belvin v. U.S.,C.A.5 (Fla.) 1960, 273 F.2d 583. Criminal Law 1169.11; Witnesses 301; Witnesses 305(2)

214. ---- Instructions, harmless or prejudicial error, practice and procedure

In prosecution for wire fraud, any error in the district court's giving the “ostrich” jury instruction on consciousor deliberate avoidance, or in failing to instruct the jury that mere negligence in discovering the truth was notsufficient to infer knowledge, was harmless in light of the extensive evidence of defendant's direct knowledge ofthe fraudulent scheme, including her own testimony that, even if she was in the dark in the beginning, by thethird fraudulent real estate closing using the same name for the buyer, at the latest, she knew of the criminalactivity. U.S. v. Ramirez, C.A.7 (Ill.) 2009, 574 F.3d 869. Criminal Law 1172.1(3); Criminal Law1173.2(2)

District court's error in giving willful blindness instruction during defendant's prosecution for conspiracy tocommit wire fraud and wire fraud, absent a factual predicate for the instruction, was harmless; only instance ofdeliberate ignorance or willful blindness concerned defendant's initial refusal to accept documents from bank of-ficer who wanted confirmation that documents were not forged, defendant was posing as fictional governmentofficer at time and had submitted the phony documents with fictional name, defendant told officer that signa-tures were hers, and nothing in defendant's actions amounted to attempt to remain ignorant of some fact bearingon criminality of endeavors. U.S. v. Alston-Graves, C.A.D.C.2006, 435 F.3d 331, 369 U.S.App.D.C. 219. Crim-inal Law 772(5); Criminal Law 1172.1(3)

Jury instructions which may have broadened indictment by allowing jury to convict if it found intent to defraudany financial institution were not plain error; had jury instruction been limited to financial institutions referredto in indictment, jury almost certainly would have reached same result, since all evidence jury considered wentto dealings of defendant, mortgage applicant, with those financial institutions. U.S. v. Berkley, C.A.7 (Ill.) 2003,333 F.3d 776, amended on denial of rehearing. Criminal Law 1038.1(4)

Trial court's failure in federal wire fraud prosecution to give appropriate curative instructions regarding prosec-utor's closing-argument statement designed to show defendant's criminal propensity was not harmless error,since failure affected jury's ability to judge evidence fairly; court did not rule on defense counsel's objection,failed to admonish counsel to refrain from such remarks, and simply told jurors that they should consider onlycharges in indictment in reaching decision. U.S. v. Brown, C.A.9 (Alaska) 2003, 327 F.3d 867. Criminal Law

1173.2(9)

Giving of willful blindness instruction was not plain error in prosecution for fraud by wire, radio, or televisionin connection with scheme to secure financing so that persons could purchase residential real estate without ne-cessity of making down payments where defendant took position at trial that he was never told what was goingon with scheme and that he believed the information that was provided to him was true but the evidence was tothe contrary. U.S. v. O'Connor, C.A.1 (Mass.) 1994, 28 F.3d 218. Criminal Law 1038.1(4)

Jury instruction given in wire fraud prosecution, which defined a “wire communication in interstate commerce”

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to include the use of telephone without specifying that telephone communication must be interstate, could nothave misled jury to point that defendant's right to fair and impartial trial was compromised, and accordingly didnot constitute “plain error,” in light of other instruction given by court that wire communication had to be in in-terstate commerce. U.S. v. Galbraith, C.A.10 (Utah) 1994, 20 F.3d 1054, rehearing denied, certiorari denied 115S.Ct. 233, 513 U.S. 889, 130 L.Ed.2d 157. Telecommunications 1021

District court in prosecution for wire fraud did not err in refusing to give defendant's proposed jury instructionson knowledge, willfulness, and intent; court instructed jury that to find defendant guilty of aiding and abettingfraud, jury had to find that he had intent to defraud, and instruction did not deprive defendant of his ability to ad-equately present his defense. U.S. v. Aggarwal, C.A.5 (Tex.) 1994, 17 F.3d 737, rehearing denied. Criminal Law

829(3)

Erroneous instruction on wire fraud and interstate transportation of property obtained by fraud charges, that sug-gested that jury could convict even if it concluded that defendants sought only to defraud Government of its law-ful right to conduct its “business and affairs free from deceit, fraud, or misrepresentation,” was not plain error,where only possible theory upon which jury could have returned guilty verdicts, given other instructions, indict-ment and evidence introduced, was that defendants participated in scheme fraudulently to obtain FHA-insuredloans, to their financial benefit or to Government's financial loss, which necessarily involved fraudulently ob-taining “property interest.” U.S. v. Madeoy, C.A.D.C.1990, 912 F.2d 1486, 286 U.S.App.D.C. 132, rehearingdenied, certiorari denied 111 S.Ct. 1008, 498 U.S. 1105, 112 L.Ed.2d 1091, certiorari denied 111 S.Ct. 1020,498 U.S. 1110, 112 L.Ed.2d 1101. Criminal Law 1038.1(4)

Instructions in wire fraud prosecution made it clear that jury could not return verdict of guilty unless it foundthat defendant had acted to carry out scheme with intention of obtaining money or property, and thus, instruc-tions did not violate McNally, even if there was some language that might have implied that conviction could bereturned even if jury found that defendant's scheme had not been intended to cause anyone deprivation of moneyor property. U.S. v. Mundi, C.A.9 (Cal.) 1989, 892 F.2d 817, certiorari denied 111 S.Ct. 1072, 498 U.S. 1119,112 L.Ed.2d 1178. Telecommunications 1021

Trial court did not err in failing to give special unanimity instruction regarding specific acts constituting schemeto defraud, where indictment alleged one unified scheme, evidence at trial supported existence of that schemeand was not at variance with indictment, neither indictment nor evidence created ambiguity as to possible exist-ence of multiple schemes, and although jury was not instructed on need to agree on principal factual elementsinvolved in charge of mail and wire fraud, given nature of evidence before it, it could not have convicted de-fendants without so agreeing. U.S. v. Frazin, C.A.9 (Cal.) 1986, 780 F.2d 1461, certiorari denied 107 S.Ct. 142,479 U.S. 839, 93 L.Ed.2d 84, certiorari denied 107 S.Ct. 158, 479 U.S. 844, 93 L.Ed.2d 98. Telecommunications

1021

There was no plain error in jury instruction in wire fraud prosecution; because specific intent instruction was ad-equate, defendant would not have been entitled to a separate good-faith defense instruction even if she had re-quested one. U.S. v. Vincent, C.A.9 (Nev.) 1985, 758 F.2d 379, certiorari denied 106 S.Ct. 116, 474 U.S. 838,88 L.Ed.2d 95. Criminal Law 1038.1(4)

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In prosecution for conspiracy, mail fraud and interstate transportation of checks, instructions to jury, which al-legedly implied that defendant was required to establish his innocence, were not plainly erroneous, taken as awhole. U. S. v. McCollom, C.A.5 (Tex.) 1981, 664 F.2d 56, certiorari denied 102 S.Ct. 1989, 456 U.S. 934, 72L.Ed.2d 454. Criminal Law 1038.1(5)

Where jury retired to deliberate at 4:25 p.m. and was out for five and one-half hours before returning verdict at9:55 p.m., contention that defendants were prejudiced by instruction at 9:30 p.m. that if jury, which had not beensequestered and had been permitted to return home each evening upon adjournment of court, had not reachedverdict at 10:00 p.m. they would be sequestered overnight in local hotel to resume their deliberations the nextmorning was pure speculation. U. S. v. Scallion, C.A.5 (La.) 1976, 533 F.2d 903, certiorari denied 97 S.Ct. 824,429 U.S. 1079, 50 L.Ed.2d 799, rehearing denied 97 S.Ct. 1342, 430 U.S. 923, 51 L.Ed.2d 602, on rehearing 548F.2d 1168, certiorari denied 98 S.Ct. 2843, 436 U.S. 943, 56 L.Ed.2d 784. Criminal Law 1174(1)

In prosecution for wire fraud pertaining to settlement agreements with telephone companies with interconnect-ing lines, instruction which in effect stated that telephone companies are regulated by the Federal Communica-tions Commission that companies also, by agreement, divide revenues obtained from use of combined toll facil-ities and that any device which avoids the proper billing is unlawful, was not confusing on theory that jury mis-takenly interpreted trial judge's instructions to mean that rules of Federal Communications Commission haveforce of criminal law, or that instructions suggested that mere breach of contract was illegal, or that instructionassumed controverted facts not in evidence; error, if any, in instruction was harmless. U. S. v. Henny, C.A.9(Wash.) 1975, 527 F.2d 479, certiorari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815. Criminal Law1172.1(2.1); Telecommunications 1021

When considered in conjunction with total charge, giving of instruction that government was not required toprove every element or part of scheme alleged in indictment and that jury could find scheme to defraud if itfound from evidence that sufficient elements or parts of scheme alleged had been proved beyond reasonabledoubt was not plain error. U. S. v. Zweig, C.A.7 (Ind.) 1972, 467 F.2d 1217, certiorari denied 93 S.Ct. 921, 409U.S. 1111, 34 L.Ed.2d 692. Criminal Law 1038.1(5)

Giving of charge, under this section on intent to defraud which included phrase “so unless the contrary appearsfrom the evidence” the jury may draw inference that accused intended all the consequences which one standingin like circumstances and possessing like knowledge should reasonably have expected to result constituted pre-judicial error. Henderson v. U. S., C.A.5 (Tex.) 1970, 425 F.2d 134. Criminal Law 1172.2; Postal Service

50; Telecommunications 1021

In prosecution for using mails, wire, radio or television to defraud or obtain money under false pretenses, cross-examination of character witnesses as to whether they knew of suit for fraud against a defendant, entry of judg-ment therein, and bankruptcy of defendant and court's failure to ascertain, out of presence of jury, legitimatebase for inquiry, and failure to warn or instruct jury as to limited purpose of such cross-examination was preju-dicial. Gross v. U. S., C.A.8 (Iowa) 1968, 394 F.2d 216. Criminal Law 1170.5(1); Criminal Law1173.2(9)

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215. Vacation of judgment, practice and procedure

Conviction under one count of prosecution for violation of this section and section 1341 of this title, would bevacated where telephone call from one defendant to another, the purpose of which was unclear from the record,failed to fulfill requirement of statute involved that the communication be “for the purpose of executing suchscheme”. U. S. v. Marino, C.A.2 (N.Y.) 1970, 421 F.2d 640. Telecommunications 1014(6)

In conspiracy/wire fraud prosecution of employee that charged both “money and property” and “honest ser-vices” wire fraud theories for guilty verdict on conspiracy count, and that ended in general guilty verdict that didnot specify which theory had been relied upon, post-verdict Court of Appeals determination that “honest ser-vices” theory could not be applied to conduct like that of defendant, involving promotion of employer's interestsrather than employee's alone, constituted intervening change in law that, coupled with general verdict, requiredvacatur of conspiracy and wire fraud convictions. U.S. v. Howard, S.D.Tex.2007, 471 F.Supp.2d 772, affirmed517 F.3d 731. Criminal Law 881(3); Criminal Law 1181.5(1)

216. Affirmance, practice and procedure

In prosecution for scheme and artifice to defraud by mail, fraud by wire communication, interstate transportationof security converted and taken by fraud and for conspiracy, convictions were affirmed notwithstanding conten-tion that trial court allowed indictment to go to jury room without removing from all counts the names of code-fendants not on trial and, as to one defendant, permitted hearsay testimony without proper cautionary instructionand allowed conviction on insufficient evidence and that, as to second defendant, government in bad faith pro-ceeded to trial on 29-count indictment knowing it would not present evidence on 22 of the 29 counts. U. S. v.Mitzkoff, C.A.5 (Fla.) 1975, 524 F.2d 488, certiorari denied 96 S.Ct. 1473, 424 U.S. 972, 47 L.Ed.2d 741. Crim-inal Law 673(1); Criminal Law 858(3); Criminal Law 1985

217. Reversal, practice and procedure

Acquittal of foreign codefendant did not constitute an inconsistent acquittal of a codefendant requiring reversalof convictions of three American defendants, since foreign codefendant's acquittal was based on Government'sfailure, in his trial, to show a connection between him and American fraudulent scheme whereas the three Amer-ican defendants were convicted on basis of evidence that showed their connection to the American scheme. U.S.v. Howard, C.A.10 (Colo.) 1984, 751 F.2d 336, certiorari denied 105 S.Ct. 3507, 472 U.S. 1030, 87 L.Ed.2d 638. Criminal Law 877; Criminal Law 1175

In prosecution for fraud by wire and aiding and abetting fraud by wire, in light of fact that defense to effect thatmisrepresentations were made unknowingly was raised in counsel's opening statement, timing of admission ofevidence of prior alleged misrepresentations did not constitute such abuse of discretion as to warrant reversal. U.S. v. Olsen, C.A.8 (Neb.) 1978, 589 F.2d 351, certiorari denied 99 S.Ct. 1237, 440 U.S. 917, 59 L.Ed.2d 468.Criminal Law 1144.12

In prosecution for wire fraud relating to settlement agreement with telephone company with interconnectinglines, exclusion of evidence, because it was outside the indictment period, 1967-1970, required reversal as to

18 U.S.C.A. § 1343


count of indictment which included fraudulent use of wire from January 1971 to December 1972. U. S. v.Henny, C.A.9 (Wash.) 1975, 527 F.2d 479, certiorari denied 96 S.Ct. 2201, 425 U.S. 991, 48 L.Ed.2d 815.Criminal Law 1170(1)

Action of court in receiving and then excluding evidence as to conversation of codefendant, who was not on trialfor violation of this section and for conspiracy, was not error on ground that evidence was of such prejudicialnature as to require reversal. Huff v. U. S., C.A.5 (Tex.) 1962, 301 F.2d 760, certiorari denied 83 S.Ct. 289, 371U.S. 922, 9 L.Ed.2d 230. Criminal Law 1169.5(2)

Evidence against defendants charged with wire fraud and mail fraud in connection with securities transactionswas sufficiently strong that minor trial errors did not require reversal of convictions. U. S. v. Crosby, C.A.2(N.Y.) 1961, 294 F.2d 928, certiorari denied 82 S.Ct. 599, 368 U.S. 984, 7 L.Ed.2d 523, rehearing denied 82S.Ct. 1138, 369 U.S. 881, 8 L.Ed.2d 285. Criminal Law 1165(2)

218. Remand, practice and procedure

Court of Appeals could not be confident that 240 month sentences on mail and wire fraud conspiracy convic-tions resulted from district court's considered judgment as to what was necessary to address various, often con-flicting, purposes of sentencing, and thus remand for resentencing was required, where district court gave onlypassing mention to statutory sentencing factors and justified maximum sentence by relying almost exclusivelyon word “deterrence”; although defendants' lawyers highlighted significant issues with intended loss calculationboth in their briefs and at sentencing, court never resolved that issue. U.S. v. Corsey, C.A.2 (N.Y.) 2013, 723F.3d 366. Criminal Law 1181.5(8); Sentencing and Punishment 373

Remand was required for limited purpose of allowing district court to clarify sentence imposed on each count ofconviction, where district court had imposed general sentence of 151 months' imprisonment on conspiracy, wirefraud, and program fraud counts even though district court had been required under United States SentencingGuidelines (USSGs) to impose sentence on each count; although 151-month term of imprisonment was withinstatutory maximum for wire fraud counts, term exceeded statutory maximum for conspiracy and program fraudcounts, and Court of Appeals could not determine whether sentence was legal as to each count due to generalnature of sentence. U.S. v. Andrews, C.A.3 (Virgin Islands) 2012, 681 F.3d 509. Criminal Law 1181.5(8)

District court committed legal error in failing to specify even a reasonable estimate of the loss amount for de-fendant convicted of mail and wire fraud, requiring remand. U.S. v. Ali, C.A.3 (Pa.) 2007, 508 F.3d 136. Senten-cing And Punishment 736

Government was not entitled to remand to expand record on issue of whether defendant, who entered conditionalplea to wire fraud, caused use of wire; having agreed to conditional plea, government was not entitled to secondopportunity to prove causation. U.S. v. Bentz, C.A.3 (Pa.) 1994, 21 F.3d 37. Criminal Law 1181.5(2)

Defendant, who objected in trial court to the constitutionality of the then-mandatory Sentencing Guidelines, wasentitled to be resentenced for wire fraud in conformity with Booker decision. U.S. v. Miller, C.A.2 (Conn.)

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2006, 178 Fed.Appx. 70, 2006 WL 1116092, Unreported. Criminal Law 1042.3(3); Criminal Law1181.5(8)

219. ---- Miscellaneous not clearly erroneous, clearly erroneous standard, practice and procedure

District court's finding that cigarette manufacturers fraudulently denied adverse health effects of secondhandsmoke, in violation of federal mail and wire fraud statutes, was not clearly erroneous, despite manufacturers'contention that their statements prior to issuance of Surgeon General's report determining secondhand smoke tobe hazardous were merely good-faith expressions of opinion, where manufacturers' research and analysis re-vealed hazards of secondhand smoke years before issuance of Surgeon General's report, and manufacturers con-cealed their role in making statements regarding secondhand smoke. U.S. v. Philip Morris USA Inc.,C.A.D.C.2009, 566 F.3d 1095, 386 U.S.App.D.C. 49, certiorari denied 130 S.Ct. 3501, 177 L.Ed.2d 1090, certi-orari denied 130 S.Ct. 3502, 177 L.Ed.2d 1090, rehearing denied 131 S.Ct. 57, 177 L.Ed.2d 1142, on remand787 F.Supp.2d 68. Postal Service 49(11); Telecommunications 1018(4)

220. ---- Misleading representations, clearly erroneous standard, practice and procedure

District court's finding that cigarette manufacturers' representations disputing addictiveness of cigarettes wereintentionally misleading, in violation of federal mail and wire fraud statutes, was not clearly erroneous, despitemanufacturers' contention that their statements merely clung to earlier, narrower, definitions of term “addiction,”in light of evidence that manufacturers had known for decades that nicotine was addictive drug and that cigarettedependence was stronger than mere habit formation, but continued to make numerous statements trivializing anddenying dependence that cigarettes caused. U.S. v. Philip Morris USA Inc., C.A.D.C.2009, 566 F.3d 1095, 386U.S.App.D.C. 49, certiorari denied 130 S.Ct. 3501, 177 L.Ed.2d 1090, certiorari denied 130 S.Ct. 3502, 177L.Ed.2d 1090, rehearing denied 131 S.Ct. 57, 177 L.Ed.2d 1142, on remand 787 F.Supp.2d 68. Postal Service


18 U.S.C.A. § 1343, 18 USCA § 1343

Current through P.L. 113-55 (excluding P.L. 113-54) approved 11-27-13

Westlaw. (C) 2013 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

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