United States v. Fishman, 645 F.3d 1175

Fishman was convicted by jury of conspiracy to commit mail and wire fraud and conspiracy to commit money laundering in a scheme involving the sale of worthless Chinese and Galveston bonds through Caribou Capital; he was sentenced to 262 months’ imprisonment, three years of supervised release, and $3,684,213 in restitution.
The conspiracy ran from the late 1990s through mid-2005, involving interdependent actors who used safekeeping depositories, bond authenticators, and European connections to induce investments.
Caribou's operations centered on taking investor funds into a SunTrust account, with Searles as paymaster and Fishman providing documents, liaison, and solicitation; no investor profits or repayments were realized.
Over 250 victims were identified with total known losses around $4.06 million; Fishman personally received approximately $343,629.50.
Investigative proceedings began after a 2003 investor complaint; Fishman cooperated with authorities, testified before a grand jury in Illinois, and did not receive immunity, though investigators noted his cooperation.
A second superseding indictment (June 2, 2009) charged conspiracy to commit mail/wire fraud and money laundering, and sought forfeiture; multiple pretrial motions by Fishman were denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal was proper due to immunized statements	Fishman argues cooperation produced immunized testimony.	Fishman contends immunity shielded evidence used at trial.	No immunity; indictment not dismissed.
Sufficiency of evidence for count one (wire/mail fraud conspiracy)	Evidence showed shared objective and interdependence among conspirators.	Fishman contends no shared objective or awareness of fraud.	Sufficient evidence; reasonable jury could find guilt beyond reasonable doubt.
Variance between one conspiracy charged and multiple conspiracies proven	A single overarching conspiracy existed despite participant changes.	There were three or more conspiracies; variance invalid.	No variance; record supports a single conspiracy.
Ex Post Facto/due process implications of § 1349 timing	Conspiracy continued after § 1349’s effective date; timely indictment.	Pre-enactment conduct cannot support post-enactment convictions.	Plain error but not prejudicial; evidence showed post-enactment conduct and no basis to withdraw.

Whitfield v. United States, 543 U.S. 209 (U.S. 2005) (no overt act required for conspiracy to commit mail/wire fraud)
Baldridge, 559 F.3d 1126 (10th Cir. 2009) (interdependence required among co-conspirators)
Caldwell, 560 F.3d 1214 (10th Cir. 2009) (elements of wire/mail fraud; money laundering framework)
Marcus, 130 S. Ct. 2159 (2010) (plain error due process framework for post-enactment conduct)
Searles, 412 Fed.Appx. 165 (10th Cir. 2011) (related co-defendant appellate discussion and Santos issues)