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Kelly Preston v. United States
312 F.3d 959
8th Cir.
2002
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*1 Finally, we note that our conclusion PRESTON, Kelly Petitioner- Knote, cited Pure Coun

comports with Appellant, Knote, ex try. In interpreting “even when plained written,’ of a consent decree ‘as meaning UNITED STATES of ignore the context which we are not Respondent Appellee. - nor cir parties operating, were surrounding cumstances the order.” case, present interpreted we have United States Court of Decree in a manner that is 1969 Consent Eighth Circuit. original context and consistent with Moreover, 9, 2002.

surrounding circumstances. Submitted: Oct. af emphasizes importance Knote Filed: Nov. to the court that actual fording deference ly question. the consent decree in entered Knote, present

See id. like 5,n.

see id. at 1299 district court

interpreted the consent decree is the same originally

court that entered the consent Therefore,

decree. Knote inclines us fur adopt interpre

ther to Decree,

tation of the 1969 Consent not to

reject it. stated,

For we affirm the the reasons holding Country that Pure

district court’s standing

does not have to enforce the 1969

Consent Decree.

Conclusion af-

The order of the district court is part part,

firmed and reversed

the case is remanded to the district court proceedings

for further opinion.

this

960 Binkard, City, L. South Sioux Neder v. United 119

William NE, appellant. for 144 L.Ed.2d 35 was issued while his direct review was Petersen, Atty., L. Asst. U.S. Janet pending. In that Court IA, City, appellee. for Sioux held that an essential ele- MURPHY, Before ment of federal mail fraud. See id. at MELLOY, Judges. PER CURIAM. govern- The district court sustained the § ment’s motion to dismiss appeals from the Kelly Preston district motion, alia, holding, dismissing order his 28 U.S.C. inter that the court’s1 argues § 2255 motion. Preston that his sufficiently instructions addressed the ma- fraud convictions for federal mail cannot teriality element. The district court sub- the element of stand because sequently granted a of Appeala- Certificate jury. was not submitted to the After de bility limited to the Neder issue. Our review, affirm. novo See United States potentially review under Neder is twofold. (8th Cir.1999) Apker, v. First, whether, we must determine as (standard review). Preston, claimed September, convicted instruction failed to submit the element of Preston of three counts of federal mail materiality jury. If we find the operation fraud connection with the of a instruction apply we then harm- telemarketing Preston and a business.2 less error review. See partner had devised scheme which 4, 7-15, (holding that harm- responding nationally-placed to Chapman less error test set forth in advertising were induced to authorize a California, fee, $79, usually to be withdrawn electroni- (1967), applies L.Ed.2d 705 where the dis- cally from the customers’ bank accounts trict court failed to submit the element of major an exchange for unsecured credit materiality jury). card. The customers were never told that The district court’s Instruction Number Preston could not a credit card substantially Eighth tracked Cir- application or that additional fees would be cuit’s model effect at the apply to for even a secured card. time. relevant appeal, As to this 19, 1999, On October Preston filed a tion Number 5 described federal mail vacate, motion to set aside or correct his a knowing fraud as and willful scheme to pursuant § sentence to 28 U.S.C. “by defraud means of false claimed, issues, among He other that his pretenses, representations and promises.” convictions should be overturned because The model instruction has since been re- the district court specifically failed to now, vised and re- struct it must determine quires that the scheme be whether the fraudulent conduct conducted went to material matters in the scheme to means of material false representations, defraud. argument, of his support Preston cited promises, argues etc. Preston O’Brien, The Honorable Donald E. appeal. 2. The verdict was affirmed on Preston, (8th States Court District for the Northern District United States v. 187 F.3d 644 Cir.1999) decision). (unpublished Iowa. table “material fact” in the rial fact.” A was then de- qualifier “material” absence of important in his trial resulted “a fact that would be to used fined as jury instruction constitutionally deficient verdict. deciding whether to person particular in a engage engage or not court agree with the district *3 transaction.”3 materiality was sufficient the issue of that jury instructions. ly represented in the 5, conclude that Instruction Number above, ele language quoted addition totality, fairly and read incorporated one of the instruction ment jury any rep- informed the that fraudulent expressly which referenced the indictment resentations, promises, or omissions relied general describing After materiality. upon convicting required Preston were were induced into terms how “customers respect, material. In this we note to be withdrawal of authorizing the electronic markedly that this different than case prom by the false and funds explicitly Neder the trial court where ises, pretenses, and representations jury they structed the that were not to of and concealment the willful omission materiality alleged consider the of the facts, by made or caused the material fraudulent statements or omissions and added), (emphasis the indict defendants” materiality that determinations were a ment, one, goes on to as set out element Neder, of for the court. See matter law fraudulent conduct “specifically” identify 1, at 16 n. 527 U.S. carry in to out the allegedly engaged of guarantees scheme. This included false Even were we to find Instruction for a an unsecured credit card return appeal Number fact at fee and concealment of the $79 error re would still fail under harmless best, packet would receive a supporting view. The evidence applica card containing a secured credit overwhelming in this case was as the additional fees and tion which charged false statements went es Thus, acceptance. no of made of scheme to defraud. Preston sence the indictment, incorporat of the language the did not contest the apparently one, expanded scope ed into element proposed any he issue at trial nor has jury’s required findings for conviction rationally a could scenario which of conduct examples and offered materiality issue. find in his favor on the might expanded meet that definition. See We need determine whether (“[W]here reviewing court concludes be above, itself, constitu- in and of would be omitted doubt that the yond tionally sufficient after Neder because supported by element was uncontested used in Preston’s case also in- evidence, such that the overwhelming section which ad- cluded definitional the same absent verdict would have been here, the materiality. As relevant dressed error, instruction is the erroneous statement or “[a] was instructed harmless.”). properly found to be when it is untrue representation is ‘false’ court. Accordingly, we affirm the district effectively conceals a mate- when made or decisionmaking body to which it was ad- those 3. These definitions are consistent with 527 U.S. at Court in Neder: dressed.'” reaffirmed Gaudin, (quoting States v. general, it a false statement is material if "[i]n influence, 132 L.Ed.2d 115 S.Ct. tendency to or [is] has 'a natural (1995)). influencing, capable the decision of the Judge, concurring. reached I in the result concur fully agree I with its conclu-

court because I am concerning harmless error.

sions however,

inclined, to believe to find mail fraud permitted

tion 5 that “is untrue

through representation made,” nothing more. After Neder

when

v. United

1827, 144 L.Ed.2d 35 this is a mis- *4 Accordingly, of the law. I do

statement agree was was,

informed on this issue. This howev-

er, harmless error.

UNITED STATES

Plaintiff-Appellee,

Roy Shelby BLUEFORD, Defendant-

Appellant.

United States Court

Ninth Circuit.

Argued April and Submitted 2001.

Filed Feb. 2002.

Amended Oct.

Further Amended Nov.

Case Details

Case Name: Kelly Preston v. United States
Court Name: Court of Appeals for the Eighth Circuit
Date Published: Nov 27, 2002
Citation: 312 F.3d 959
Docket Number: 01-3035
Court Abbreviation: 8th Cir.
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