United States v. Goldberg, Ronald J.

Before HIGGINBOTHAM and can $223,000 Guardian had cleared the SLOVITER, Judges, ROTH, Circuit and check, drawn on the annuities account at Judge District *. American Guardian payable and to the Cor-

porate Dynamics account at Barney. Smith THE OPINION OF COURT 5, 1984, On November Goldberg tele- phoned Smith Barney arranged to have ROTH, Judge: District $192,821 funds, of the now credited to Cor- Goldberg Ronald convicted porate Dynamics Barney, at Smith wired United States District Court for the East- Bank, York, Chemical New New ern Pennsylvania District of on three York, to an account in the Corpo- name of fraud, counts of wire under 18 U.S.C. Dynamics rate Wilmington at Trust Com- 1343 and and three counts of caus- pany, Wilmington, Delaware (Wilmington ing property Trust). Then on November commerce, interstate or under 18 Goldberg Wilmington Trust in- called 2314 and 2. These offenses structed $190,000 that bank to wire were Goldberg committed while was im- Goldberg’s Royal account at the Bank of prisoned at the State Correctional Institu- Canada, Montreal, Finally, Canada. after Graterford, tion at Pennsylvania. receipt Montreal, funds Goldberg put his operation scheme into on Goldberg telephoned from Graterford Pris- 29, 1984, by depositing October into his on Royal to the Bank of on several account at the North Savings State arrange occasions to for the transfer of the Corporation, Greenville, Loan North Car- $190,000from (North Royal Montreal to the State), olina a check in the amount of Canada in $230,000, Bahamas. drawn on an account requested by the Goldberg’s corporation, name of bank to confirm Corporate Dynamics International, these writing instructions in (Corporate Inc. and did so. Dynamics) Smith, Harris, Barney, Bank of Canada Up- then on Novem- Company, ham and Philadelphia, ber Pennsyl- wired the funds from Montre- (Smith Barney). vania al knew that Bank of Canada Interna- there were not at that time sufficient funds tional Limited in Nassau.

* Roth, Honorable Jane designation. R. United States District Delaware, Judge sitting by for the District of Guardian, no federal over offenses American In December charged in Five and Counts fact that aware had become

since it from Montreal to Nas Dy- transfer funds Corporate not funds were there appeal of this sau. We have to cover account annuities namics' 1291. The resolution of under U.S.C. check, attorney, Harold $223,000 its had interpretation these issues involves freezing Semanoff, injunction, an obtain Therefore, application legal precepts. deposit Goldberg had on any funds which scope plenary. of our review is United Once Royal Bank of Canada. with Adams, 759 F.2d 1099 Cir. injunction, Goldberg was informed 1985). We will affirm the convictionbelow have the to cooperated he with Semanoff on all counts. to American returned from Nassau funds recovery from Altogether, with Guardian. JURISDICTION Trust, Barney, and the Wilmington Smith and in Montreal Defendant contends that Royal Bank recouped jurisdiction has the district court did not have American Guardian $223,000 Five Six $21,408.63 of the taken over Counts and because that wire all but transportation his and of funds was by Goldberg a result of transfer it as cities, foreign and between two Montreal to scheme defraud.1 “foreign com Nassau. He asserts that on three counts was indicted merce” under U.S.C. 1343 and § § for caus- 18 U.S.C. and § § “foreign incorporates the definition of com by funds ing transfer Chemical in 18 U.S.C. 10: “The term ‘for merce” § Trust, Wilmington causing for Wil- wire to commerce’, title, in eign used as by mington to transfer funds wire Trust foreign country.” cludes commerce with a Canada, Montreal, and Royal Bank of transfer, alleged argues He that the wire Royal telephone calls which caused Five, transportation, and the al Count Canada, Montreal to transfer Bank of leged in do come within the not Canada, Bank of funds “foreign commerce” because the Unit term on counts He was indicted three Nassau. party ed not a to or involved States was 23 for caus- under 18 U.S.C. transactions. these ing fraudulently ob- however, ap- foreign question presented, money in or com- tained interstate complex pears merely more than merce, arising three wire to be from the same “foreign commerce” under guilty, He definition of transfers of funds. was found First, trial, we must deter- six He 1343 and after a bench on all counts. (1) jurisdiction if of the federal dis- claiming was mine appealed, has that venue extended to include this in the Eastern District of Penn- trict courts can be proper not (2) funds two transfer of wire transfer sylvania, that the electronic cities, of- in which this is a case from one bank another not funds national, by an “money” un- fense was caused American equivalent of the transfer of States, using (3) that there located der 18 U.S.C. bi- $21,408.63 2(b) provides: apparently due to a section 1. The loss of is during willfully drop Canadian dollar the the in value causes an act be done Whoever that the Bank of Canada held time funds in the form Canadian dollars. directly performed or if him anoth- against the be an offense er would States, principal. punishable as a part: provides relevant 2. Section 1343 Whoever, having intending to or devised provides part: in relevant 3. Section 2314 defraud, any or ... devise scheme artifice to to be transmitted transports or in interstate Whoever or transmits causes merchandise, wares, any se- goods, inter- of wire communication in means ... $5,000 money, or of the value of curities or commerce, any signals, ... or state stolen, more, knowing same to have executing purpose or sounds for the ... fined ... shall be or taken fraud artifice, converted be scheme or shall fined such $10,000 imprisoned not $1,000 or not more than imprisoned more more than years, ten or both. years, more than or both. than five strumentability persons of innocent tions of the Government of the United bring the wire transfer. If such specified about need not have exists, jurisdiction we must next consider that extraterritorial existed be- adequate statutory prosecution fore there could whether or not there in our describing courts for such provision, the offense crimes which had been com- Goldberg. high mitted on the against seas or in coun- tries. 260 U.S. at 43 S.Ct. at 41. See Traditionally, American courts have held Layton, United States v. F.Supp. law, jurisdiction that “under American (N.D.Cal.1981) (conspiracy to aiding solely legis- criminal rests matters with the abetting the murder of an American judicial government lative and branches of Congressman by an American citizen in country of the state or in which the crime Guyana has harmful effects within the Blakesley, Conceptual is committed.” A U.S.; federal district court has Framework Extradition and Jurisdic- over American citizens who commit this Crime, tion Over Extraterritorial crime). type of Utah L.Rev. Turning from such direct offenses general and almost universal [T]he against States, the United making as the rule is that the character of an act as against false claims it or the murder of its lawful or unlawful must be determined representatives, elected type to the of of- wholly by the law of country where fenses with which Goldberg has the act is jurisdiction, done. For another here, wire transmission of happen if it lay should hold of the money, precedent we find for ex- actor, according to treat him to its own tending jurisdiction of the federal notions rather than place those of the offenses, courts to include wholly commit- acts, where he did the only would be ted outside of country, this if the acts unjust, but would be an interference with committed are intended to have an effect in authority sovereign, of another con- the United States. In United States v. trary nations, comity which the Braverman, Cir.1967), F.2d 249 other state justly might concerned re- Bruce Braverman had been convicted of sent. causing in foreign com- American Banana Co. v. United Fruit eight merce of money counterfeit orders in Co., 347, 356, 213 U.S. 29 S.Ct. 53 violation of 18 U.S.C. 2314 Spe- and 2. (1909)(citation omitted) L.Ed. (Holmes, cifically, Braverman girlfriend, and his J.). Miranda, Nuncia Janeiro, while in Rio de Taft, however, Chief Justice in the case Brazil, had cashed money counterfeit or- of a conspiracy, taking place high on the ders, Lafayette drawn on the National Brazil, seas and in corporation defraud a Brooklyn, Bank of New York. Five in which the United States was a stockhold- later, months York, after his return to New er, distinguished American Banana Co. v. Braverman was arrested the FBI and ground on the Fruit Co. that it was tried and in convicted the United States case, a civil based on violation of the Anti- District Court for the Eastern District of Trust foreign Law in country and that New York. appealed Braverman his con- Congress specify had in failed to the Anti- viction grounds. on a number of Included Trust Law that including punish- it was among the appeal issues raised on were ment for such an offense in the event that Congress whether or not had meant the it was jur- committed outside the territorial combination of 18 and 2314 to §§ isdiction of the United States.4 In apply solely to acts committed in a Bowman, States 43 S.Ct. country but intended to have an effect in (1922), 67 L.Ed. 149 Chief Justice Taft held the United States and whether or not the that in cases of against offenses opera- commerce clause of the United 4. The restrictive Congoleum American Banana view of Corp., ex- ton v.Mills traterritorial siderably has (3d Cir.1979). also eroded con- 1291-92 See, e.g., Manning- anti-trust cases. defraud, Congress to scheme the Government permits Constitution foreign country United States would have had an interest in in a solely

punish acts done prosecuting because effect effect in the United have an intended to but upon American Guardian the United upholding States. since it was American Guardian’s the circuit hear this court to district money sending he was ruled that court upon foreign because the effect com- logical rea- seem to be no There would Goldberg's merce of scheme. In the case Congress holding that intended son us, however, before Ronald did who cause the violation punish those fact, not, in perform acts outside Unit- protecting regulating and for- law of a produced ed States which detrimental ef- only they act within eign commerce when was, within it. What he did do fects from the borders Pennsylvania, the Graterford Prison protect foreign powerless persons cause innocent countries intentionally injurious commerce wire, to transmit communications which acts, those acts occur simply because put transmissions into effect his scheme to knew, our borders. Braverman outside defraud. He became the “cause of harm” he orders and cashed when country, direct acts purpose, two for the same gave Miranda which harm the would American putting them into he was upon he financial institutions drew because, necessity, they checks, through causing, worthless but paid ultimately Brooklyn, had to be prison Pennsylvania, his cell in from inno- York. New persons cent in Canada to commit the acts F.2d at 251. 376 put his fraudulent scheme into ef- in The decision Braverman reflects earli- fect. in reasoning er of Mr. Justice Holmes The has Braverman case demonstrated 280, Daily, S.Ct. Strassheim 2314, conjunction that 18 in with § (1911), involving L.Ed. 735 a case 2, gives jurisdiction our to courts over § Daily of to the extradition from Illinois causing offense of the the Michigan perpetrated Michigan fraud in for goods of in commerce when stolen by Daily, Daily in while in fact was Illinois: brings entry offender about the into the jurisdiction, Acts outside a but done foreign country of commerce in a counter- producing produce detri- intended to money of affect- feit orders with the intent it, justify within a in mental effects state If ing in the United States.5 we a bank punishing cause harm as if he a of had vary to that of this the factual situation effect, present at if the the state in that the act committed case: causative getting in should succeed him within its country person, has the in- by this a who power. bring effect in this coun- tent to about an 285, 31 at 221 U.S. at S.Ct. 560. See Ri try, in by causing person an innocent States, v. United vard place money foreign country to stolen into (5th Cir.1967), nom., cert. denied sub Gro commerce; change in the facts this v. United leau U.S. away the not take from reasons for does (1967). S.Ct. 19 L.Ed.2d 181 granted jur- in which the court Braverman Analogizing Daily Indeed, Braverman and there is to our courts. isdiction case, present if had greater justification the Ronald in this case than there gone person granting jurisdic- in to the Bank of Cana- in for was Braverman to our arrange in Montreal the tion of this 2314 offense da for § 2/§ Goldberg, funds, the In this Ronald transfer Nassau of the obtained courts. fraud, “principal” as perpetrator of the from American Guardian 2(b) permit the deletion transported" language Section Is added to 5. The “causes to be throughout many the revision sections as well as in numerous sections of from § other Code, phrases procures”. dropped such as "causes the United States was 2(b): time Notes. U.S.C. 2 Revision of the enactment 2(b), apply was a citizen of Six should 18 U.S.C. also 1343 wire defined fraud country located in this coun- offense in Count Five. who was The reason this for language this is that offense to be com- Five try when he caused the therefore, adequately charges have, wire fraud addition communica- mitted. We by tion country by defendant the tele- the effect created phone calls offense, he made Pris- reasons for the Graterford two additional on to the Bank Canada in jurisdiction over Montre- United States to exercise al, which calls caused the bank to transfer for a nation to offender: the need the funds to Nassau on upon November effect its protect against injurious 1984.6 telephone Evidence of these commerce, calls when this ef- upon citizens by Goldberg to Montreal was introduced by the intentionally caused misdeeds fect trial. Government at his summation by the conduct of of its own citizens and/or trial, at the close of the attorney persons its borders. those found within argued the defendant that Count did Five See, Conceptual e.g., Blakesley, A Frame- charge calls from Grater- work Extradition Jurisdiction Montreal, ford to but instead Crime, 1984 Utah Over Extraterritorial wire transmission from Montreal to Nas- Berge, Criminal Juris- L.Rev. 685-719. evident, however, sau. It is from the state- Principle, diction and the Territorial judge, ments made trial he (1931). Michigan L.Rev. 238 considering the Graterford-Montreal calls above, As we have demonstrated there- coming to his decision to fore, justification exists for the exer- convict on Count Five: the United States of cise Well, THE Goldberg, COURT: Mr. ac- 2314, transportation the Section over evidence, cording placed calls from offense, commerce spe- giving charged in Count Six the Indictment. cific directions for the transfer of monies language 2314 does include “for- to the Bahamas. eign commerce” and “intentional effect” MR. CARROLL: That’s And true. upon foreign shown at trial they good would make counts. In other testimony concerning the misdeeds words, telephone if the calls from Moreover, Goldberg. of defendant Eastern into District Canada were “causing” by Goldberg Pennsylvania in of charged offense, as the that would make by persons the actions in innocent theory it a solid truly because that would has been sufficiently pleaded joining commerce. 2 of 2314 offense. § § Well, THE COURT: isn’t that is what Goldberg argues Defendant also in charged in six count [sic]? appeal his that court district did not MR. CARROLL: No. have of Five because Count it five____ THE I COURT: mean count charged a wire communication between THE easy. Count COURT: five [is] foreign cities, two and Montreal Appendix at A 141-142. not and the United and a need, country. however, not In language We do view of the that the of fact in this case to sufficiently consider whether or not the Count charges Five the Grater- reasoning uphold calls, behind our decision to telephone ford-Montreal that occurred, of the offense in proved 2314 Count Government these calls § 6. Count Five signals states: in sounds, certain is, Paragraphs 1. that defendant caused 1 10 of Count One Canada, Montreal, Canada, incorporated Bank are of to wire reference. herein 13, 1984, 2. On or transfer funds $190,000.00 an amount in of about in excess November account in of RONALD GOLDBERG to an the name J. Pennsylvania, Eastern RONALD Canada, Nassau, of of J. GOLDBERGat the District purpose executing the scheme and arti- Bahamas. Code, do, attempting fice and caused In so to be violation of Title United States transferred means of wire communication Sections 1343 and

465 Philadelphia. Consequently, there is no appeared have had the court and that proper of the that was mind as the basis doubt under 3237 venue calls in § these Five, charged in there was as to Counts One and Two. offense count, even un- jurisdiction of this clearly concerned, far Five As as Count is of “for- interpretation the defendant's der ruling Pennsyl of our that it is the view eign commerce.”7

vania Montreal calls for which VENUE the defendant was convicted this under count, clearly there is also venue in the Goldberg venue contends that Appellant Pennsylvania District of since Eastern that indict- improper as to all counts originated. is where the calls of the transfers none ment because in the Eastern charged occurred therein question The of venue for Counts Pennsylvania. question The District of Three, Four and Six is more difficult be proce- simply legal is a matter venue not cause transmission and trans public significant issues of raises dure but portation begin themselves did not or end provisions The the Consti- policy. venue n pass through in or the Eastern District. safeguards, important protecting tution are argues that, Goldberg following rule hardship an accused from unfairness States, v. established Kreuter defending the feder- against prosecution (5th Cir.1955) 532 218 F.2d government. Travis v. United al (S.D.Fla. Hoffa, F.Supp. 205 358, 360, 710 5 States 81 S.Ct. 1962), proper venue is Eastern (1961); v. Pas- L.Ed.2d (3d Cir.1980). Pennsylvania because it sodelis, District Goldberg merely the district where hatched Goldberg is scheme, his and because neither use of 2(b) causing under U.S.C. accused transportation the wires nor the of the of wire the commission offenses began, money charged in con these counts fraud, and inter under U.S.C. § tinued or ended there. of fraudu state and money, lently U.S.C. not, obtained cases are Kreuter Hoffa sections 1343 and are 2314. Both one, however, present like the situations continuing pursuant to 18 offense crimes alone, 2(b)principal, and he proper is so venue wrongful his de- only actor in scheme to any offenses were district in which the fraud, causing inno- from one location was continued, begun, completed. persons scheme. We to effectuate his cent conceive of this grant did deny does District; but he then scheme in Eastern venue still applicable, claims that but of the Graterford from the same confines charged did improper the offenses because necessary to performed all the acts Prison Eastern begin, not continue or end accomplish permit prosecution his it. To However, Pennsylvania. it is District mea- executed the the district where he record, and even clear offenses to con- which caused the be brief, sures his to concede as much in that seems contrary any would seem summated transfer of funds from New York the wire statutory Two) or venue (Counts way to constitutional Wilmington One and requirements. through passed the Federal Reserve Bank with paragraphs are considered language Count One Five 7. The dissent finds the of Count offense, Five, proof charge, are as the indictment and does not sufficiently made from Graterford Prison calls informed proper. The indictment Bank of Canada in Montreal. We charges against him to of the the defendant language agree perhaps of the that indict- pro- prepare defense and to permit his him precise or as artful as could be ment is not as prosecution for same from another tect him However, we note that Count Five desired. Berger U.S. United See v. offense. 78, incorporates paragraphs specifically (1935). 79 L.Ed. 1314 S.Ct. "by When these One reference.” of Count constituting persons, the crime legally the acts innocent are his acts. [W]here charged im- of the crime Giles, nature and the U.S. location, the consti- plicate more than one (1937). S.Ct. 81 L.Ed. 493 If the single exclu- does not command a tution beginning act of or transmission requires The constitution venue. sive legally prin- the act of the chosen be deter- only that the venue Goldberg, cipal, then it follows venue from the nature of crime mined lies in the district in which he was located as from location of charged as well when he caused that act to performed. be it, constituting and that it the act acts Spiro, See United States v. 385 F.2d 210 policy contrary explicit to an un- not be Cir.1967). (7th venue law. derlying reasons, For therefore, the above the tri- Reed, States v. properly al court ruled that venue (2d Cir.1985). proper all counts. of relevant dem- review authorities [A] single that there is no defined onstrates policy or mechanical test determine BY TRANSFERS WIRE Rather, venue. the test is constitutional Finally, Goldberg asserts that the as best described a substantial contacts foreign transportation interstate and takes into number of rule that account a wire, Two, money by charged in Counts acts, site of the factors—the defendant’s Four and cannot be violations of 18 crime, and the elements nature of the only 2314 because that section of the effect of the con- locus criminal duct, applies suitability and the district to the interstate and each trans finding fact portation items, for accurate ... tangible not electronic debiting crediting. Unfortunately at 481. Id. appellant, only does case law run coun present In the in which defend- position, ter to this it but strikes this Court 2(b) ant under 18 U.S.C. § interpreta as very a narrow and unrealistic causing violations of 1343 and with §§ today’s tion It of 2314. is a fact of life in 2314; in which all the acts causative were highly computerized technological soci performed by him in the Eastern District of ety transfers of ac Pennsylvania; many of the wit- scheme, generally accomplished counts are nesses, testifying electron about the were ically. bank, Pennsyl- imagine located in Eastern District It is difficult to a vania; Guardian, and in which American that is directed a customer to transfer scheme, suffering the victim loss from the $190,000 from the customer’s account of Penn- was located Eastern District Canada, Wilmington to another account in sylvania, III, it is consistent Article with doing any way electronically. it other than Constitution, (Trial 2 of the United States account, Does one cash out of take the first shall held in the State where said crimes transport load it onto a truck and it committed) shall have with the Obviously bank Canada? Nor do not. (right Sixth Amendment speedy we in believe could have public impartial an jury trial apply only tended 2314 to when district State and wherein the shall crime transported physically monies are from one committed) permit prosecution have been location to another. of in this case the Eastern of Penn- District issue Two Circuits have addressed this Moreover, sylvania. joining in the 1343 § and both found trans have that electronic charges 2(b), 2314 with it would § money 2314. fers of are covered provisions per- the violate of 3237 to Wright, 133 v. 791 F.2d 2(b) principal mit to lie where venue the § Cir.1986); Gilboe, (10th United States v. performed 2(b), all causative acts. Section denied, (2d Cir.1982), 459 684 F.2d 235 cert. making Goldberg recog- in principal, the 432 acts, U.S. 103 S.Ct. 75 L.Ed.2d nizes the common law the rule that (1983). performed by which caused to Tenth stated be The Circuit that:

467 crime, previous- the convictions under Counts Five and Six the as gravaman of The must reversed. be noted, illegally is of ly the movement to anoth- money from one locale obtained charges transportation the Count Six changes during money form That er. Canada, of the Montre- “from fact, is is indeed the process, if that the al, Canada, Canada, to the Bank of is, significant insignificant. What Bahamas, knowing the same to completed, mon- transaction is of when the have taken fraud” violation App. 2314 2. at final destination. U.S.C. 165. The at the 18 ey exists §§ majority affirms the conviction under 136. Wrigkt, F.2d at of Six on the basis cases that extend opinion in an earlier The Circuit Second jurisdiction of the United States in- made similar observations: offenses, wholly committed outside clude signals in context are the this Electronic if country, acts committed were this transported. funds are means which country. to have an effect this intended is mon- beginning the transaction of However, the issue before us is not wheth- ending is mon- account and the ey one jurisdic- can extend its er the United States in which the ey in The manner another. transportation two for- tion between does not affect funds were moved of funds that were stolen in eign countries tangible paper dollars ability to obtain the United but whether the United receiving account. check from a bank done so 18 U.S.C. 2314. States has Indeed, suspect actual dollars we of Since the definition banks, particularly rarely move between only purposes of Title 18 refers “commerce with a foreign country,” transactions. in international added), (emphasis it patently U.S.C. § Gilboe, F.2d at 238. all-encompassing as it could be. At not as reasoning agree of Sec- We with time, however, only this it is the definition on issue and Tenth Circuits ond and enact, Congress simply has and it chosen money transfers of are hold that electronic between does cover commerce by section 2314. covered countries. Bowman, v. United States CONCLUSION (1922), upon 67 L.Ed. 43 S.Ct. above, find stated we For the reasons rely, question majority addresses Pennsylvania of the Eastern District may federal criminal statute whether a Five and have of Counts did extraterritorially Congress where applied properly lay in on all counts and venue specifically defined” the locus of has “not addition, district. situation, a court seek- the crime. In that properly look Congress’ intent must ing to ascertain Two, 2314 in Four and Six Counts crime description and nature to “the causing the interstate upon upon the territorial limitations transportation money, obtained government power and fraud, though that even the law nations.” punish crime under electronically. affirm performed We will also 97-98, See Id. 435 S.Ct. at Goldberg’s on all appellant conviction Wright-Barker, counts. Cir.1986). Unlike the Bow- situation, “for- defined has man SLOVITER, Judge, dissenting Circuit applied section eign commerce” as concurring part. part and little as- Bowman provides and therefore here. sistance portion majority’s join I the Venue Goldberg’s their affirmance of opinion and history clearly legislative The relevant One under Counts convictions application 2314 to of section precludes the por- I dissent from the Jurisdiction Four. transportation of opinion. ap- I that under first believe tion countries. Section two Title 18 reading peared of the indict- 1948 recodification only reasonable Code, No. Pub.L. 80- language, of United States statutory the ment and the relevant 683, (1948), Goldberg’s and the I Nor do believe that Stat. convic- to that section state that it upheld Revisor’s Notes tion under Count Six can be by defi- 2(b). one section identical application “consolidates into of 18 provi- That 408, 408b, in sections nitions contained person sion states that a “willfully who 18, U.S.C., 414(a) 419a(b) title of act directly causes an to be done if which one provisions, ed.” of which was a These performed by him or another would be an Property provision National Stolen of the punishable offense” is principal. as a predecessor containing Act the to section However, transportation if the charged 2314, foreign “interstate or com- all defined would not be an offense because it is not in merce” to include: “foreign commerce” as defined in 18 U.S.C. State, transportation Territory, from one 10, the transportation then fact that the Columbia, of another or the District to willfully by person acting is caused a inside State, or Territory, the District of Colum- change the United States cannot the nature bia, foreign country, or from a to a or transportation. of the foreign country any State, Territory, reasons, For similar I believe that the or of the District Columbia. err in majority also upholding Goldberg’s “slight The Notes refer im- Revisor’s Five, charges conviction Count style” provements in in the ver- recodified 1343, a of 18 prohibiting violation U.S.C. § However, sion. there is no that indication wire transmissions “in ... com- to broaden intended the definition purpose executing merce” the of a “foreign commerce” to transac- include majority scheme.1 fraudulent circum- begin tions that do not or end in the United “foreign vent the pre- commerce” issue States. by sented the Montreal to Nassau wire Braverman, reading Count Five of the indictment as Cir.), denied, cert. that charging telephone made (1967), upon S.Ct. 19 L.Ed.2d 182 calls from Graterford Prison Montreal in majority rely, way which the also is in no furtherance scheme to defraud. The “foreign inconsistent with the definition of are majority plainly in error. only including commerce” as transactions charges Goldberg, Count Five that begin that in the or end States. purposes executing the fraudulent that the court stated that “Braver- scheme, “caused to be transferred knew, man he when cashed the or in foreign means of communication gave ders and Miranda two for the same sounds, signal[s] commerce certain purpose, putting that he was them for is, defendant caused the Bank eign because, of ne Brazil] [in Canada, Montreal, Canada, to wire cessity, they paid ultimately had transfer funds an amount excess of Brooklyn, York.” New 376 F.2d at 251. $190,000.00to an account in name Here, charged transaction Count Six RONALD J. GOLDBERG begin between countries did Canada, Nassau, App. Bahamas.” end in the United States. While Cana charged clearly at 164. The offense may da bank have had some recourse the wire based on communication between against Wilmington Company, Trust Montreal Nassau. The calls possibility of such recourse cannot alter majority relied on are not referred nature of transaction anywhere For charged indictment. in Count particularly since reason, incorporation “by reference” in Count Four with Five, language a violation of sections 2314 referred and 2 for the opinion, Wilmington majority at note 7 of their cannot bank and supply allegation. the Canada possibly the nonexistent bank. statute, apply 1. In provision the Wire Fraud was to 18 U.S.C. to which the amended all was amended to include coun- transmissions included transmissions between 84-688, S.Rep. try "in ... commerce.” Pub.L. No. No. and the States. See (1956). (1956); examples Cong.2d H.R.Rep. Significantly, 70 Stat. 523 Sess. 2-3 No. 84th (1956). legislative history "foreign Cong. commerce” 2d Sess. 1-2 84th calls Graterford-Montreal Finally, properly to be considered

cannot be allegation in the indictment

charged transfer Goldberg “caused” the wire

that to Nassau. Montreal of funds from Goldberg showing trial evidence part transmission the wire

fact caused from telephone calls

by means various the district Montreal and

Graterford alter calls cannot reliance on those

court's indictment fact

the undeniable was the charge the offense

does not The means

telephone communication. is the essence

the communication 1343, and fraud under 18 U.S.C.

offense communication

effected Nassau, not fraud effected

Montreal from Graterford communication charged. To Montreal, was what on Count

permit the conviction telephone calls that

Five on basis or alluded to never

were holding contrary to cases our

indictment alia, is, inter purpose of an indictment charge. defendant of apprise Crocker, v. 568 F.2d

See United (3d Cir.1977); 1059-60 Goldstein, Cir.

v.

1974) (in banc). reasons, I foregoing would re-

For the

verse the convictions Five and Six.

Counts

COOLEY, William, Appellant, FINANCE HOUSING

PENNSYLVANIA Smith, AGENCY; Gerhold, D.; Wayne C.; Donadee, A. Michael

Karl

No. 86-5896. Appeals, States Court

Third Circuit.

Argued 1987. June Sept.

Decided

Case Details

Case Name: United States v. Goldberg, Ronald J.

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 29, 1987

Citation: 830 F.2d 459

Docket Number: 86-1524

Court Abbreviation: 3rd Cir.