*2 ALSUP, District Judges, and Circuit *3 Judge.2 ALSUP, Judge: District jury convic- appeals her Jane Crawford for two counts each of wire fraud tions sto- transportation interstate converted, len, fraud. through or taken jury found that Crawford implicitly The from her painting a valuable oil office took UCLA, intending owner use, profit, knowing it for of its and sold stolen, converted, or taken that it had been jury implicitly The also through fraud. (or co-schemer) found that Crawford interstate faxes to ad- sent received money through vance her scheme to obtain issue in pretenses. dispositive false The whether sufficient evidence appeal this is supported the convictions. conclude We did, that it and affirm.
Statement switch an oil Frost by the influential arts-and-crafts painting Dow, Wesley hung artist Arthur on the office in the wall of Crawford’s UCLA Di- early 1990s.3 Crawford was UCLA’s Counseling, College of Letters rector paint- In she took the Sciences. and, help with the of a her office Ivens, Glendale, California, for the Gail Weaver, secretly named Ken middleman defendant-appellant. sold it. Alejandro Mayorkas, N. United States May grand jury In a federal indict- Gordon, Attorney, John S. Assistant Unit- wire fraud in ed Crawford on two counts of Katzenstein, Attorney, ed Ranee A. States § and two violation of 18 U.S.C. An- Attorney, Los Assistant United States prop- transportation counts of interstate California, geles, plaintiff-appellee. for the erty through and obtained converted fraud, § 2314.4 violation of 18 U.S.C. a three- pleaded guilty, Alsup, had been dismissed on the William United States 4.A fifth count 2. The Honorable Judge District of District Cor the Northern government’s motion. California, sitting by designation. alternately 3. The referred to as Flowers, Ipswitch Frost ers in the record. 1889 and Frost Flow- a valuable and didn’t know At end of the such
day jury began. trial case, hearing argu- and after it.” government’s
ment,
Rule 29
court denied Crawford’s
1994, however,
began prep-
In
acquittal. The
found
motion for
painting.
govern-
arations to sell the
The
on all four counts.
guilty
evidence that she
presented
ment
called
Wesley
that Arthur
parties agree
attorney
her
father’s trust
and asked
Flowers, along
Frost
gave
Dow’s widow
selling
paintings,
including
about
some
paintings,
with seven other
Dow,
Flowers Arthur
Frost
in 1928.
Wesley Dow Association
Arthur
claimed,
bought,
falsely
her father had
presented evidence
living
years
At
while
Utah
before.
had been affiliated
the Association
(or
father’s) direction,
Crawford’s
California,
*4
University
Southern
attorney
may
wrote a “to whom it
con-
In
to UCLA.
addi-
precursor
Branch —the
behalf, noting
cern” letter on the trust’s
tion,
Angeles Normal School” was
“Los
it
retained
Kenneth Weaver
Los
on the back of the canvas.
stenciled
for
In
buyers
paintings.
secure
the
March
School,
college
a teachers’
Angeles Normal
called her tax accountant
Crawford
1880s,
part
in
later became
of the
the
consequences
the tax
of sell-
to ask about
California,
Branch.
University of
Southern
her,
ing painting
given
a
that had been
Wesley Dow Association
When the Arthur
said, by
professor
she
a
friend at UCLA.
asserted,
dissolved,
Frost
the
(or
pre-
its
Flowers remained with UCLA
In
contracted with
June
Weaver
decessor).
Spanierman Gallery to sell Frost Flowers
Cunningham,
employee
Craig
UCLA
$200,000. The contract was faxed be-
for
Crawford,
first saw Frost
supervised
signa-
and
York for
tween California
New
Registrar
Flowers in UCLA’s Office of the
$200,000
deposited
tures.
Weaver
Hall in
In
he
Murphy
the 1970s.
Spanierman Gallery into an account
painting
urging
to his office at the
took
in his name. He wrote several checks on
remodeling.
Registrar,
who was
pay
goods
the account to
for
and services
that his office
Cunningham found
When
He also wrote checks on
for Crawford.
he took
enough
space,
did not have
wall
pay
the account to
off her debt.
hung
Frost Flowers
home.
He
years.
his mantel for about ten
over
Meanwhile,
colleague
Crawford’s UCLA
thought
he had never
testified that
that Frost Flowers
Collas noticed
Judith
his, but considered it
Frost Floioers as
longer
no
in Crawford’s office. Craw-
hide it from
property. He did not
UCLA’s
at Cal Arts
ford told her that a student
colleagues
and
supervisors
his UCLA
it,
restoring
profes-
under a
Valencia was
home, and he told
they
when
visited his
Cunningham
supervision. She told
sor’s
University.
belonged
them that
it
fact,
was no
story.
In
there
the same
brought
In
it back
early
1990s
had ever sent the
evidence that Crawford
room,
storage
it in a
and
placing
restored,
Spanierman
and a
to be
mentioning it
to Crawford because
it ar-
testified that
Gallery representative
painting.
admired the
knew that she had
condition.
poor
rived
room,
storage
it from the
She retrieved
Trenta-
called Michael
wall, where it
hung
it on her office
Ex-
Director of
Executive
lange, UCLA’s
years. During
remained for several
Affairs,
the Univer-
testify
about
ternal
time,
her
had conversations with
disposing
sity’s policies
acquiring
for
which,
colleague Judith Collas
UCLA
post, he
Before his current
indicated
Collas
Infor-
Executive Director of
had served as
understanding that UCLA owned
as Executive Director
conversation,
Systems
mation
they
In one such
painting.
Systems.
Policy and Information
owned of Gift
“irony
that UCLA
spoke about
organization”
admitting
an “affiliated
dis-
abused its discretion
Trenta-
When
said,
solves,
property
re-
lange’s recounting of the UCLA definition
He testified over
mains with UCLA.
Craw-
entity,”
of “affiliated
that the
considers an
objection
ford’s
entity” stays
“affiliated
with
the Uni-
organization”
“affiliated
to be one that
dissolves,
entity
versity when the
name, facilities,
University’s
per-
uses
prop-
is not authorized to abandon
UCLA
sonnel, or
in its activities.
equipment
that an
erty, and
asset’s absence from
University inventory lists
does
indicate
proce-
He next
about UCLA’s
testified
no claim
UCLA makes
of title to the
disposing
Typical-
of property.
dures
dean, director,
a unit
asset.
second is whether sufficient
ly
head —such as
faculty chairperson
jury’s implicit
or a
that a
find-
—decides
longer needed
particular asset
is no
ings
requisite
had the
mens
University
wanted. The
then offers the
charged
rea for
crimes.
In
departments.
to its other
no particular,
argues
gov-
that the
department
University
wants
sells
produce
ernment did not
evi-
sufficient
University
it.
Since
least
has
dence that
owned
Frost
obligation
get
highest
had “an
produce
and therefore did not
sufficient
return
property.”
best
sale of
evidence to
criminal intent
to de-
*5
University
dispose
When the
decides to
of prive
rightful
the
owner
possession.
of its
art, it
it
highest
auctions
to the
bidder.
property away,
give
UCLA cannot
Tren-
A. Evidentiary Issues
Nor,
talange
testified.
testified over
reviews evidentiary
Court
objection, can it
prop-
Crawford’s
abandon
rulings at
trial for abuse of discretion.
erty.
172,
v.
Old
United
519 U.S.
Chief
Trentalange further testified that for all
174 n.
Analysis legal alleges conclusions. Crawford appeal questions. Crawford’s raises two court abused its discretion overrul- objection, The first is plainly whether the district court each and that it erred jury resources.” giving away public legal instances two other admitting legally not have could ob- believed UCLA though no testimony, even conclusion would painting, first and the cross-examination, abandoned jection was raised must have likely conclude elicited second was any evidence that below, regardless not did stolen court discussed As err, ownership claim of it. For ex- or otherwise UCLA discretion abuse its below, however, the stated Trentalange’s the reasons allowing cept property, abandon was harmless. could not error Third, objected, counsel defense During Timely Made Objections avail, asked “does no when Trial ap item doesn’t particular the fact that objected First, counsel defense inventory mean that the Uni pear on an Trentalange asked when the own versity basically saying we don’t orga an affiliated what “please explain answered, “No.” He did Trentalange it?” the court jury.” After is for the nization that, circumstances, in such conclude not ex Trentalange objection, overruled particu would not own a would or affiliated or consider an that “We plained item; testified that such lar uses the organization ganization signify not would circumstance facilities, name, personnel or University’s forgo ownership. University intended their activities.” in the course of equipment opinion no as to whether expressed He its discretion did not abuse The court Nor did the Frost Flowers. UCLA owned question did objection. overruling opine. him to The court ask so explain call for discretion. did not abuse its organization,” of “affiliated legal definition Arthur to conclude Made At Trial Objection 2. No *6 organi- was an “affiliated Association Dow Repeating legal-conclusion testify. Trentalange so Nor did zation.” challenges appeal on argument, on his jury, based simply told He testimony Trentalange’s admission of policies, how with UCLA’s experience organi of an “affiliated that the organiza- term “affiliated used the UCLA that, University and belongs zation” tion.” dissolves, prop its organization when the University. Craw remains with erty Second, counsel unsuccess defense specific question object to ford did not government asked objected when fully did not testimony, she that elicited this prop “can UCLA abandon Trentalange objection, and continuing “no,” make a explicitly answer of his erty?” Explaining Nevertheless, to strike. did not move the same she “Again Trentalange that the explanation If it without before. she assumes I’ve mentioned principle re testimony be should value, to retain admission obligation we have an has govern had. The though she value, it and viewed as keep it or sell to either objection, and lack of an notes the on cam ment purposes for other use those funds the admission argues that pus.” The plain for error. be reviewed should here. abused its discretion The court government agrees Court term, and the legal a “Abandon” is explicit con objection, an specific absent statement Trentalange’s read could have that ef circumstances objection, tinuing cannot, matter of as a that UCLA to mean fore of the two either fectively precluded law, proper- have “abandoned” be found to of evidence the admission options, going by his supported interpretation ty. This plain for error. be reviewed should testimony that to his earlier reference by admit- err plainly did not belongs The court University has “[everything the testified Trentalange testimony. ting the public insti- essentially; it’s a public with which policy as tution, equivalent be the and it would 1092 jus- familiar, prevent miscarriage or to handling property of dis- cess Schaff, organizations,” (quoting a UCLA tice.” Id. United States
solved “affiliated (9th Cir.1991)). interpret dis- F.2d 506 The Trentalange term. about who not rever- opinion law or offer an circumstances here do warrant puted owned Frost Flowers. based on the admission of this testimo- sal below, any error in its ny. As discussed on Cross-Exam- Testimony Elicited admission was harmless. ination Sufficiency B. Evidence to a series
Finally,
response
cross-examination,
specific questions
supports
evidence
Sufficient
had
that he
asserted
evidence,
testified
conviction
viewed
ownership in a sworn
claim of
UCLA’s
light
prosecution,
most favorable to the
hereby
“I
advise the
declaration:
any
allow
rational trier of fact to
would
pres
court on behalf of UCLA
find the essential elements of the crime
owner of the
ently claims it is the exclusive
beyond a reasonable doubt.
Jackson v.
pos
and is entitled to sole
Virginia, 443 U.S.
He testified
painting.”
session of the Dow
dentiary if rul- only understanding” “wrong abuse of discretion the court’s of “to defraud” is likely property rights by the ver- his ing more than not affected one in dishonest dict.”). schemes, usually signify methods or deprivation something of value
Conclusion
trick, deceit, chicane,
overreaching”);
or
Utz,
v.
United States
886 F.2d
jury’s
Sufficient evidence
(9th Cir.1989) (observing
McNally
implicit findings that Crawford did not
mail fraud to
Flowers,
limited
“schemes to defraud
that she
own Frost
knew she
money
property”);
another of
or
United
did not own it. We affirm Crawford’s
(9th
Lew,
219, 222
States v.
875 F.2d
Cir.
convictions.
1989) (observing
requires
that mail fraud
AFFIRMED.
“an intent
to
or
money
obtain
deceit”).
the victim of
TASHIMA,
We have
Judge, dissenting:
Circuit
from
reversed a mail fraud conviction for failure
I
majority
dissent because the
reads an
charge
of the indictment to
a crime be
element
the crime
essential
out of
of wire
charge
cause
“[t]o
scheme to defraud
fraud
and because
evidence is insuffi-
1341, McNally requires
under section
an
Up
cient to
that essential element.
allegation that
Mitchell intended to
now,
it has been the law that
crime
this
city money
property.”
or
[victim]
victim, i.e.,
an
requires
identifiable
some-
Mitchell,
United States v.
one must have been defrauded of
or
his
(9th Cir.1989)
added) (cita
(emphasis
And,
fact,
the indictment
omitted).1
Sentencing
tions
Guide
charges that:
lines also recognize that there cannot be a
January
In or about
defendant
scheme to defraud without a victim. See
an original
paint-
CRAWFORD stole
oil
2F1.1(2) (“If
§
U.S.S.G.
the offense in
Flowers,
ing entitled “Frost
Ipswich
volved ... a scheme to defraud more than
1889,” signed by the artist Arthur Wes-
levels.”).
victim,
one
2by
increase
(the
ley
Painting”),
“Stolen
which
belonged
law,
then
custody
effect,
Ignoring
majority,
this
UCLA,
knowledge
per-
without the
or
has minted a new kind of victimless fraud.
(“Even
mission of UCLA.
slip op.
See
at 1093
title to Frost
Flowers
passed
had never
added.)
(Emphasis
Crawford’s actions met the elements of the
Today,
without the citation
au-
her.”).
charges against
thority
majority
an-
new,
Here,
greatly expanded,
nounces a
accepting
lay
even
the challenged
value,
“[t]he
rule-that
opinion testimony
need
at face
the evi-
prove beyond
a reasonable doubt that
dence was insufficient to sustain the con-
UCLA owned
Frost
proven
viction: The
chain of title ends with
Crawford knew that
Slip op.
she did not.”
the Arthur
Dow Association. Mi-
government’s
at 1092. As the
brief ac-
chael Trentalange2
objec-
over
knowledges,
tion,
the case law is to the con-
organization”
that an “affiliated
is one
trary.
Carpenter
name, facilities,
University’s
484 “that used the
U.S.
personnel
S.Ct.
1095 Thus, upon property.” Slip op. who at there is no evidence comes equipment.” or §§ (citing 2080 & an “affiliated 1093 Cal. Civ.Code Association was that the Dow 2080.1). however, law, finder could not California’s so that UCLA organization,”3 (even is-not a criminal statute and assum Dow Association’s succeeded to the have law under that violation the state’s finder of Frost even ownership crime) being is a Crawford is not criminal legally dubious and conclu- Trentalange’s ly prosecuted for violation of the state’s happens of what sory Moreover, majority “affiliated finder law. as the rec organization” property of an ognizes, principle is not absolute. “It would be similar to a that dissolves: Property can owning equipment be abandoned.6 See department [of UCLA] Pacific Zuckerman, very start it would Gas & Elec. Co. v. 189 Cal. or From the University App.3d Cal.Rptr. 234 650 considered be recognizes organiza- posses California also adverse particular use of that affiliated tion, of personal property. for the use of the sion See First Nat’l like it would be I Bank v. thing.” Thompson, Cal.App.2d kind of Department, Math 338(c) (1943); § as P.2d 75 Cal.Civ.Proc.Code submit that this evidence insufficient three-year (providing law a basis on which a statute of limitations a matter of as specific recovery for “actions for the beyond find rational trier of fact could personal property”). doubt that UCLA the own- reasonable was and, thus, the victim er of Frost Flowers4 end, majority’s In the case rests on to defraud. of the scheme newly-minted govern- rule that “the prove ment did not need to own- this de- UCLA’s majority opinion recognizes The evidence; thus, of the and its conclusion ership” ficiency it strikes that the evidence was sufficient to requirement of an identifiable owner jury’s supposed finding “that Crawford the crime or victim from the elements of Flowers,” theory did not own Frost nei- though even and from the indictment charged ther the indictment nor on required, inter trial court’s instructions I alia, which the was instructed.7 Because “knowingly that Crawford devised that this new rule is inconsistent believe ... a scheme ... as described in the prece- and our Supreme Court’s op. (empha- at 1092 n. 5 Slip indictment.” added).5 area, I dissent. respectfully dents sis majority jury may
The asserts that “the rightful has a own-
presume
er, identity rightful even immediately one
owner is not known to notes, having majority majority specifically Trenta- 6. The faults Crawford for not 3. As the lange testify the Dow Association requested an instruction on abandonment. organization.” Slip op. an "affiliated hand, slip op. other at 1093. On the 1091. had no notice that the requirement relieved of the would be other "evidence” on this issue 4. charge in the indictment that she stole speculation. An archivist at amounted UCLA testified that it was "owner,” from its UCLA. Frost Flowers her "understand- ing” that the Association "is affiliated UCLA,” of her testimo- with but examination stating majority 7. The confuses the issue ny reveals a total lack of foundation for this requires statute "[n]either assertion. identity....” Slip have known her victim’s whether op. at is not transporta- the interstate 5. The instruction on rather, identity; knew the victim’s required property counts tion of stolen proved it is whether the beyond doubt that jury to find reasonable whether that victim there was a victim and the owner" of Crawford "intended charged person entity in the indict- was the Slip op. property’s at 1092 n. the stolen use. added). victim. (emphasis ment as the