United States v. Larry J. Pierce, II

America, UNITED STATES of

Plaintiff-Appellee,

Larry PIERCE, II, J. Defendant-

Appellant.

No. 03-4956.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. May

Decided

time that his sentence must be vacated — Booker, under United States v. -, follow, For the reasons that we

affirm Pierce’s conviction but vacate the sentence and remand this case for resen- tencing. I. Dickenson, Nancy

ARGUED: Combs Lebanon, Virginia, Appellant. for Rick A. Because challenges Pierce the suf Mountcastle, Assistant United States At- ficiency supporting of the evidence his con torney, Office of United States Attor- viction, we view the facts established ney, Abingdon, Virginia, Appellee. for ON light trial in the most favorable to the Brownlee, BRIEF: John L. United States Government. Glasser v. United Attorney, Roanoke, Virginia, for Appellee. 86 L.Ed. 680 MOTZ, GREGORY, Before Bristol Regional Speech and Hearing SHEDD, Judges. Circuit (“Bristol”) Center, Inc. nonprofit is a char- in part, part, Affirmed vacated in organization itable located southwest by published remanded opinion. Judge Virginia. by Virgi- Bristol was authorized opinion, SHEDD wrote the Judge which pay nia law to agents outside to conduct joined. Judge MOTZ GREGORY wrote bingo games generate pro- funds for its opinion concurring an in part and grams. director, Wright, Sue Bristol’s tes- dissenting part. tified that authority there was no or mech- anism for the individuals who carried out SHEDD, Judge. Circuit bingo operation on behalf of Bristol to Pierce, Larry (“Jimmy”) Defendant J. II any share in of the income derived from was convicted of ten of mail counts bingo sales. Bristol towas receive all the and one count of conspiracy to commit proceeds any bingo game from during sold mail fraud in connection bingo oper- with a a session. Virginia. ation in southwest Pierce chal- Wright hired Linda Pierce manage lenges solely his ground conviction on the bingo operation. Bristol’s Linda Pierce that he never caused the United States Jimmy then hired her son and two other mails to be used in furtherance of the relatives, II, Bill Hoss and Bill Hoss fraudulent scheme. challenges He his 33- help her operate Bill events. prison month grounds sentence on the numbers, Hoss called out the Jimmy while (1) the district court’s estimate of the loss Bill Pierce and Hoss II conducted most of resulting from the fraud fig- exceeded the gen- sales activities. Linda Pierce had ure stipulated Government his supervisory eral authority and kept (2) coconspirators’ sentencing proceedings, records for the bingo operation. Wright evidence trial did not support the rarely attended bingo sessions. loss, district court’s estimate of the disparity between his sentence early and his As Jimmy the Hosses and coconspirators’ sentences began violates the Pierce purchasing extra cases of Equal Protection Clause. petition bingo games his instant suppli- from Bristol’s er, (‘Woolwine”). for rehearing, argues Pierce for Specialty the first Woolwine Sales During the of Linda Pierce and a number of trial purchase Bill Hoss would Jimmy produced would the Government account and then on Bristol’s cases Jimmy showing cases for cash. the number of off-the- additional records purchase bingo games purchased II would sell these books instant from and Bill Hoss by Jimmy at the same time Pierce and games instant Woolwine the Hosses additional During a games. through February from June 2001 sold Bristol’s session, they might Although sell six there were no records document- typical evening for Bristol and four made games ing purchases cases of instant before June As employee Angela Bowery five additional cases themselves. or Woolwine testi- sales, Jimmy Bill in- they made Pierce and fied that the number of off-the-books into deposited proceeds games purchased II the cash stant each month Hoss point Jimmy At some dur- Pierce the Hosses remained Bristol’s cash drawer. session, they roughly withdrew the same from 1997 to 2002. ing or after the evidence, Virginia Gaming for each case of on this from the cash drawer Based $166 they sold for themselves. Harrell calculat- games Agent instant Commission Erwin Bill II then total Jimmy resulting Pierce and Hoss would ed the loss from the fraudu- (for scheme, only record- to going September to Linda Pierce official lent back report $265,598.1 only 1999, the number to be keeping purposes) in- Using sold. games Bristol’s trial, three-day jury acquit- After a formation, prepared report Pierce Linda Linda on all counts of the in- ted mailed re- for Bristol’s records and Jimmy convicted dictment. course, report Wright. to Of port conspiracy mail fraud and to Pierce of of instant understated the total number fraud, mail and the district court commit during each session. games sold prison him months in with sentenced to 33 release. This Pierce, years supervised three Linda Jim- grand jury indicted Hoss, followed. Pierce, appeal II on Bill and Bill Hoss my count of mail fraud and one eleven counts II. Bill conspiracy to commit fraud. mail guilty II to pled and Bill Hoss each

Hoss A. to commit mail conspiracy one count of up conviction must be Bill plea agreement fraud. In its with evidence, tak Hoss, held if “there is substantial stipulated that the the Government Government,” view favorable to the conspiracy most from resulting loss Glasser, $70,000 $120,000 support o it. 315 U.S. than more than but less t 80, evidence is 457. “[Substantial that Bill Hoss would be agreed and further finder of fact that a reasonable participant in the con- evidence considered a minor and sufficient accept adequate Bill could plea agreement In its spiracy. guilt of a defendant’s II, support a conclusion stipulated Hoss the Government doubt.” United $120,000 beyond -reasonable more than but less the loss was (4th 849, 862 $200,000. Burgos, 94 F.3d plea to their States than Pursuant (en banc). Cir.1996) evaluating In agreed testify the Hosses agreements, support sufficiency of the evidence Jimmy Pierce. against Linda Pierce September 1999. in Although Bowery off-the- event that occurred testified that the began shortly purposes be- purchases Agent after she later date for books Erwin used the working gan Woolwine in other calculation. of his loss conspiracy to an tied the start of the witnesses conviction, criminal we assume that already profits cause he had obtained his jury resolved all contradictions the testi from Bristol’s cash drawer before the re- mony in ports actually According favor the Government. United mailed. Sun, § Cir. he cannot liable be under mailing because the at issue was not neces- 2002). sary receiving proceeds for his fraud, prove order to mail the Gov- argument fraud. This is meritless. ernment prove must that the defendant knowingly participated in a scheme to de- Although the statute pur “does not (2) mailed, fraud and or caused to be frauds, port only to reach all but those mailed, anything “for of exe- limited instances which the use of the cuting such scheme.” 18 U.S.C. part mails is a of the execution of the appeal, Both the district court and on fraud,” States, Kann v. United challenged Pierce has his mail fraud con- 95, (1944), 89 L.Ed. 88 it is solely viction on ground that he never enough be to an “incident caused the United States mails to be used scheme, step essential or a in furtherance of the fraudulent scheme. plot,” Schmuck v. United 103 L.Ed.2d person “causes” the mails to be (1989) (internal 734 quota citations and used when he knowledge “does an act with omitted). Importantly, tions “the use of that the use of the mails will follow the the mails need not be an essential [itself] business, ordinary course of or where such 710, element of the scheme.” Id. at 109 foreseen, can reasonably use be even 1443; Maze, S.Ct. see also United States v. though actually not intended.” Pereira v. 645, 414 94 U.S. S.Ct. 38 L.Ed.2d 1, 8-9, United 74 S.Ct. (1974); Pereira, 8, 603 347 74 U.S. 358, (1954); L.Ed. 435 see also United 358; Edwards, 188 F.3d at 235. Edwards, (4th 230, v. States 188 F.3d Cir.1999) (stating “proof that that the use Moreover, Supreme Court has was, objectively, the mails reasonably “[m]ailings stated that occurring after re foreseeable is support sufficient to a con ceipt goods obtained fraud are viction for conspiracy to commit mail within the státute if were ‘designed to fraud”). The evidence established that lull the victims into a false sense of securi Linda Pierce mailed reports falsified ty, postpone their complaint ultimate to bingo game Wright. sales to The evidence authorities, and therefore make the also established that Jimmy provid Pierce apprehension of likely the defendants less ed his mother with information after each than if no mailings place.’” had taken session that so she could prepare these Lane, 438, United States v. 451- U.S. reports Wright. for Wright Since was very rarely present during bingo onsite Maze, (quoting sessions, jury could it conclude—and is 645). have applied We this doctrine to not disputed appeal on Jimmy —that mailings cases in which the were made reasonably Pierce foresaw the use of the the defendant obtained the victims’ after mails to daily bingo reports deliver the to Godwin, property. See 272 F.3d at 668 Thus, Wright. Pierce “caused” the mails (concluding that a could find that the to be used. defendant wrote a “lulling letter” to his contends, however,

Pierce that the mail- “in placate victim an effort to her and to daily of these bingo reports not in keep was the fraud scheme ongo active and Cohen, furtherance of the ing”); Morley fraudulent scheme be- v. Cir.1989) (4th level for mail fraud is six. See (concluding that offense

1009-10 2Bl.l(a) (2002).3 by the § that made The district jury could find U.S.S.G. invest- an investor after the defendant two levels because the offense court added into lulled the investor was made ment misrepresentation that Pierce involved in the defendant’s investment leaving his acting organi- on behalf of a charitable defen- part of the and thus were control zation, 2B1.1(b)(7)(A), § see U.S.S.G. defraud); ongoing scheme to dant’s it twelve levels because the added another Snowden, 770 F.2d States from the fraud exceeded resulting loss Cir.1985) letters “[l]ulling (stating 2Bl.l(b)(l)(G). $200,000, see U.S.S.G. victims for the sent to innocent adjusted twenty level of With an offense and criminal advancing a fraudulent I, history category a criminal fraud, mail charge are sufficient imprison- months’ was sentenced acquisi- the letters follow even where ment, lenient sentence available the most money question”). tion of the applicable Sentencing under the Guidelines pro- that Linda Pierce Wright testified range. Bristol’s weekly reports for vided her that she relied on operation and accurately report reports Linda Pierce’s Bris- generated income the amount of could not Pierce contends he testified that she Wright further tol. $200,000 exceeding be held liable for loss any off-the-books bin- reported

would have stipulated, because the Government had she regulators to state been go sales found, in separate pro the district court sales. Taken made aware of such ceedings involving coconspirators, Government, favorable to the light most $200,000. greater no than that the loss was bingo the falsified proved that the evidence Hoss, Bill In with plea agreement its lulled Bristol into false sense reports stipulated that the loss result Government security effectively concealed $70,000 fraud was more than ing from the sum, adduced at In the evidence fraud.2 $120,000. plea agree In its but less than support to Pierce’s con- trial was sufficient II, ment with Bill Hoss the Government for mail fraud. viction more than that the loss was stipulated B. $200,000. $120,000 than Accord but less should be ing to the Government challenges the district court’s Pierce also attributing him an estopped from The base computation of his sentence. bingo operation. These argues misconduct that the issue 2. The dissent bingo daily reports sales—did with an mailings "help[ed] here—the cloak the scheme scheme be- further Pierce’s fraudulent not legitimacy, thereby preventing its de aura of effectively was concealed cause fraud "[t]he allowing it to continue.” United tection their oral Pierce and Hoss II made when (7th Lack, Cir. 129 F.3d States v. night but omit- reports to Linda Pierce each Indeed, 1997). the mails in it was the use of games. sales from the off-the-books ted their by reasonably Pierce— foreseen this case— the sales that Linda wrote The fact Pierce to contin that allowed fraudulent report is unrelated to down and later mailed years and more than two ue undetected for furthering all that was nec- the fraud because retain the fruits of his allowed Pierce to already essary oc- to further the fraud had during period. that fact, Post, at Linda Pierce's curred.” 238. agent reporting Wright of the victim —an according the 2002 3. Pierce was sentenced necessary the fraud to conceal the fraud —was Sentencing Guidelines. suspecting any version of the kept Wright because it from $30,000 any greater amount of than the deducted loss accordance Sue previously amounts found the district Wright’s estimate of the net loss to Bris- coconspirators’ court his cases. Pierce tol.4 Agent computed average Erwin however, cases, party was not a to those monthly purchases of off-the-books Fifth Ninth agree and we with the games during the from period June 2001 Circuits the civil doctrine of nonmutu- through February period 2002^—the al estoppel application collateral has no applied which records were available—and sentencing. criminal v. See United States that average going to each month back to Montes, (5th Cir.1992); 976 F.2d September Agent extrapo- 1999.5 Erwin’s Valdez-Soto, United Angela Bowery’s lation was based on testi- Cir.1994); cf. Standefer mony that conspiracy maintained the 10, 21-25, purchasing activity through- same level of (declin- conspiracy. out the duration of the To be apply estoppel nonmutual collateral sure, Bowery only testified she could case). in a criminal The district court was estimate the purchases number of made free to resulting estimate the loss from the began before she keeping records. Never- fraud based on the information available to theless, only the district court was re- init this case. quired to make a reasonable estimate of loss, say and we cannot finding, that its Agent based on Erwin’s calculations and argues that Pierce next the ev Bowery’s testimony, clearly erroneous. presented idence at trial support does not finding the district court’s that the fraud $235,000. caused a loss to Bristol of This

finding resulted in a tw'elve-level enhance Finally, challenges his ment to Pierce’s base offense level. The ground sentence on the disparity prove Government must the amount of loss between his sentence coconspira and his preponderance evidence, and the tors’ equal sentences constitutes an protec district court must “make a reasonable tion violation. criminal sentence violates loss, estimate of given the available Equal only Protection Clause if it re Miller, information.” United v. States 316 disparate flects similarly treatment of situ (4th 495, Cir.2003); F.3d 503 U.S.S.G. any ated defendants lacking rational basis. 2(C). 2B1.1, § cmt. n. The district court’s Roberts, United States v. 915 F.2d presents estimate of loss a question of fact (4th Cir.1990). Pierce coconspira and his Miller, that we review for clear error. similarly tors are not situated: Pierce was F.3d at 503. sentenced based on all the evidence ad $235,000 trial, In arriving at figure, including Agent the the duced Erwin’s district began Agent court Erwin’s final resulting estimate of the loss from the $265,598—and fraud, estimate of the total pled guilty while the Hosses loss— presentence report, adopted Agent $200,000. 4. The any exceeding Er- hancement for loss 2B1.1(b)(1)(G). § win’s estimate and stated that the total loss See U.S.S.G. $265,598. Wright’s was The basis for lower record, estimate is unclear from the but the Agent Erwin made a more conservative esti- challenge Government did not her calcula- by assuming, mate of loss consistent with witnesses, tion. Either estimate would warrant testimony the from other the that con- same enhancement applicable spiracy began under September in 1999 rather than guideline, which calls a for twelve-level en- sometime in 1997. on the Government’s sentenced based responding brief supplemental available and the information stipulations argument, con- court was re- Pierce’s Government to trial. The district prior required that a remand estimate of cedes is to “make reasonable quired information,” loss, case. given the available 2B1.1, 2(C), cmt. n. -and U.S.S.G. case is similar to United This changed that information over quality of (4th Hughes, v. 401 F.3d States Cir. least, very supplies this fact time. At the 2005), a criminal where we vacated sen differing amounts a rational for the basis resentencing tence and remanded for his cocon- to Pierce and of loss attributed Hughes, accordance with Booker. As in spirators. court imposed the district here the sen required court is not by district Sentencing tence mandated Guide codefendants, lines, consider the sentences upon based a fact that was Foutz, ie., F.2d v. jury, United States not found the amount of (4th Cir.1989), that and it is well settled resulting the loss from Pierce’s fraud. See coconspirators may and even (concluding application codefendants id. at 547-48 differently same of for the sentencing be sentenced enhancements based on fense, Quinn, F.3d v. judge-found United States facts was “error” that was (4th Cir.2004); United States “plain”). Hughes, As the defendant Cir.1996). Davis, 141, 145 longer here to a term of was sentenced that the dis already concluded imprisonment.than Sentencing.Guide We have resulting trict court’s estimate of the loss had required lines have the district would appropriate, the fraud was under from court not considered that fact. See id. Guidelines, fact that and the Sentencing (concluding imposition 548-49 of. coconspirators were sentenced in excess of the maximum sen .sentence harshly change does not that conclu jury’s less verdict af permitted tence sion., rights). substantial the defendant’s .fected we conclude that Hughes, Consistent with

C. an error that court district committed plain and that affects Pierce’s substan petition rehearing, In his for exercise our discretion rights, time that his tial and we argues for the first id. at 555-56. his to notice the error.6 See must be vacated and case sentence case for re- Accordingly, we remand this resentencing pursuant remanded , — -, in accordance with Booker.7 sentencing Booker sentencing.” when Hughes, course take them into account "[w]e 6. Just as we noted in remand, the district judge, 125 S.Ct. at 767. On the district who offer no criticism of appropriate should first procedure court determine law and in effect followed the Guidelines, range sentencing under the mak- sentencing. F.3d at the time” Pierce's of appropriate 4; findings for that all factual generally v. United 545 n. see Johnson 461, 468, S.Ct. 1544, Hughes, 401 F.3d at 546. States, determination. sentencing court should consider The (stating that an error is L.Ed.2d 718 range along with the other factors described “plain” time of trial was if "the law at the 3553(a), impose a § and then in 18 U.S.C. clearly contrary to the law the settled falls outside the sentence. Id. If that sentence appeal”). time of range, explain its the court should Guidelines required by departure, as longer for the Although are man- reasons the Guidelines no 3553(c)(2). § Id. The sentence must sentencing U.S.C. datory, clear that a Booker makes statutorily prescribed range be "within the Guidelines and [the] court must still "consult selling III. bingo games “off-the-books” instant in during they sessions which would also supports jury’s Substantial evidence games sell for Bristol and pocketing then finding mailings falsified scheme, profits. began per- The which reports reasonably were at least foresee- haps early early as 1997 and in ended Pierce, finding able and that is suffi- purchases entailed of the “off-the- uphold cient to in the conviction this case. bingo games every books” instant few The district court’s estimate of the loss illegal weeks and at bingo sales sessions resulting from clearly the fraud was not session, each weekend. At the end of each erroneous, reject and we Pierce’s various II orally report Hoss and Pierce would challenges to the calculation of his sen- many bingo games they Linda Pierce how tence the Sentencing under Guidelines. Nevertheless, had sold for report Bristol but did not we vacate sentence Pierce’s to her resentencing and remand this case for their sales of the “off-the-books” accordance with Booker. bingo games.1 instant Linda who counts, acquitted weekly on all sent PART, AFFIRMED IN VACATEDIN Bristol, bingo summary reports to which PART, AND REMANDED bingo games included the tallies of the sold, GREGORY, through the U.S. mail. Judge, concurring Circuit dissenting part: It is axiomatic that not all fraud is feder- II. Rather, al fraud. the federal mail fraud Pierce’s conviction for mail fraud turns only statute reaches “those limited instanc- on mailing weekly whether the re- a part ines which the use of the mails is ports were used to conceal the scheme or fraud, execution the leaving all other rather whether the scheme had already by appropriate cases to be dealt with state come to fruition when the oc- law.” Kann v. United 323 U.S. curred. Whether a (1944) (em- is deemed to 89 L.Ed. 88 added). be for the purpose executing a scheme phasis I Because believe that this depends defraud on “whether the mail- is such a case that should be left to state law, ings sufficiently closely I respectfully dissent as to related to the suffi- (the defendant’s) ciency on to bring evidence Pierce’s convic- his con- majority’s tion. The duct within the statute.” United States v. attempt to fit the Maze, facts of this case into the federal mail goes

fraud statute beyond existing prece- L.Ed.2d 603 The Supreme Court’s dent and dangers demonstrates the inher- jurisprudence question on the of when a ent in extending jurisdiction federal fur- mailing acts furtherance of fraud has ther than Congress go. intended to evolved from a reading. narrow to a broad Yet, a history juris- review of the of this

I. prudence demonstrates that Pierce’s con- majority duct does fit affirms mail not even within the Court’s conviction expansive under 18 U.S.C. 1341. A more recent reading of the stat- found that Pierce had defrauded Bristol ute. Hughes,

and ... allegation reasonable.” 401 F.3d at 1. No was made that Pierce sold games purchased 547. on Bristol's account and kept proceeds the as his own.

237 States,2 88, “previously plan.” formulated part U.S. In Kann v. United Parr (1944), Id. at 148, 81, 83 S.Ct. 173. 89 L.Ed. 65 S.Ct. States, 370, 80 S.Ct.

v. United 363 U.S. went further still Schmuck in Court (I960),3 1171, the Court 4 L.Ed.2d 705, 109 v. United 489 U.S. S.Ct. somewhat re- mail fraud statute read the 1443, (1989), holding convic- overturning mail fraud strictively cars, defendant, purchased the who used that the schemes had ground on the tions odometers, and then sold rolled back their mailings oc- fruition the reached before artifi unwitting them to car dealers with so, doing In it looked at the indi- curred. cially prices, properly inflated convict separately in each case transactions vidual upon ed of mail fraud based the car deal for each proceeds that once the and found subsequent mailing ers’ documents received, the schemes transaction were Id. transferring title to their customers. noted, mailings, it subsequent ended. The mailings 172. It that these satis at found incidental and collater- merely either were reasoning mail fraud statute fied the ques- in al immaterial to the schemes or “a could have found that the rational Parr, 393, 80 tion. See 363 U.S. at S.Ct. mailings part title-registration 1171; Kann, 95, at 65 S.Ct. 148. scheme, a execution of the fraudulent Sampson, But in reach fruition until scheme which did not (1962), 75, 173, 9 L.Ed.2d 136 83 S.Ct. cars and ef the retail dealers resold the to a more seemingly the Court shifted fected transfers of title.” Id. a mail analysis by upholding expansive it “sufficient for the The Court found mailings in which the fraud conviction to an to be incident essential fraud after to the victims of the were sent Id. in at step plot.” or a of the scheme received the victims’ the defendants had (internal 710-11, citations 109 S.Ct. money. Id. at 78, It 83 S.Ct. 173. distin- omitted). distinguished It quotations and Parr Kann in guished its decisions Parr Kann noting mailings cases the schemes had stating that those post- “involved more than those cases little fruition before the mails were come to among potential vic- contrast, accounting In used. Id. at S.Ct. 173. schemes, long- and the tims of the various Sampson, mailings were made for turn on the fraud did not term success of into be- lulling the victims victims bore potential which of the perform that the defendants would lieving 1443.4 Id. at ultimate and were done as loss.” promised services Parr, Kann, made unauthorized up dummy the defendants the defendants set 2.In through they using employer’s corporation gasoline purchases which diverted their . corporation for their compa another funds from oil 363 U.S. at 383. The credit card 92-93, holder, at 65 S.Ct. 148. own use. 323 U.S. ny to the credit card mailed invoices drawn on They deposited or cashed checks return, through payment was sent and in which diverted funds at various banks these defendants’ The Court reversed the mail. Id. Id. at the checks to the drawee bank. mailed mailings finding the mail fraud convictions aside their 148. The Court set sufficiently the scheme connected to were not ground that convictions on how to defendants because it was immaterial come to after their scheme had occurred payment ser- company for its received the oil already defendants had because the fruition ' 80 S.Ct. 1171. vices. Id. money intended to receive received how the bank was immaterial to them and it strong dissent wrote a 4. Justice Scalia col- paid the check would which or credited majority's opinion to be he found the which the drawee bank. Id. lect from prior cases. with the Court's "inconsistent” Rather, emphasized it security “[t]he relevant sense of effectively concealed question at all times is whether the mailing Pierce’s fraud.” Ante at 233. It reasons part is of the execution of the scheme as that Bristol would have discovered the by perpetrator conceived the at the time.” fraud if weekly reports the that Linda 715, 109 Id. at S.Ct. 1443. Pierce mailed to Bristol showed both the revenue from the Bristol-purchased games suggests While this line of cases an eve- and the revenue from the rexpanding view on when a “off-the-books” mailing is “for games. purpose scheme,” agree the While I executing argument such that this we should be mindful that this has initial appeal, latter element it fails to consider that simply jurisdictional is not hook.5 preparation Not the and mailing weekly of the every mailing will have a sufficient rela- reports by Linda Pierce was a step once- tionship to in question the fraud to make removed from the actual concealment of the fraud a federal crime. The Court’s the fraud. holding in Schmuck helps to focus this The fraud effectively was concealed analysis. By stating, above, as noted when Pierce and II Hoss made their oral question relevant is whether reports to Linda night Pierce each but perpetrator conceived the mailing part as omitted their sales from the off-the-books scheme, of the injected subjec- the Court games. The fact that Linda Pierce wrote component Thus,

tive into the inquiry. the sales down and later mailed a report is determining mailing how the interacts with unrelated to furthering the fraud because fraud, we must focus on whether the all that necessary to further the fraud scheme, by conceived had come already had occurred. respect, this to fruition when mailing or occurred mailings did not further the fraud or con- whether mailing part acted as of the fraud, ceal the reports the oral to Linda by concealing it.6 Pierce furthered and concealed the fraud. III. Put way, another these were “not majority The concludes that part these “falsi- of the execution of the scheme as fied reports lulled Bristol into a false by perpetrator time,” conceived at the Schmuck, ment, 489 U.S. at 109 S.Ct. 1443 explicitly nor did it reduce the use of (Scalia, J., dissenting). the mails predicate to a mere for federal jurisdiction.” Id. 5. Prior amendments to the mail fraud statute support reading. Congress this amended the 6. As the aptly Fifth Circuit has concluded: statute in 1909 to language requir- eliminate ing proof that the scheme would be Synthesizing Supreme "effected holding Court's by opening intending either open or corre- in Schmuck precedents— with these other spondence any or communication with other accepted which the Court breaking in—and person ... post-office means rationale, estab- down Schmuck's it is clear that lishment of the United States....” See Peter the Court’s mailing statement that a need Henning, Maybe J. It Should Just Be Called merely part be "incident to an essential Federal Fraud: Changing The Nature satisfy the scheme” to the mail fraud statute Statute, Mail Fraud 36 B.C. L.Rev. is materiality cabined mailing, replaced It it language with the timing: tangential as well as mailing its case, issue in requires this which occurring after the success of a fraud mails be used "for the executing complete scheme is qualify, would never Thus, such scheme.” Id. at 448. mailing even if the is "incidental” to a "amended mail fraud statute did not com- of the scheme. pletely required eliminate the nexus between Strong, Cir.2004). scheme to defraud and the ele-

239 ability to make all fraud disposal the with Schmuck, 489 U.S. it, a mailing connected to feder- selling any sort of scheme involved Pierce’s because intended, Congress case. If this is what reporting al only while games “off-the-books” they would have written the statute Bristol. then he sold for games the Linda to instead, much, it to they limited acts, had suc- to state as he those had done Once he mailing’s purpose those cases in which the fraud as the current completing ceeded of the scheme. future is for execution of the success protecting as well fraud. that the mail fraud statute recognize I cases emphasis on majority’s The “stopgap as a has come to be used device into a “lulled” victims which defendants basis with new temporary [a deal on a In security inapposite. is of false sense scheme], legisla until particularized fraud cases, the “lulling” each of those passed to deal developed can be tion defendant obtained after the were made Maze, 414 directly the evil.” with the but property before the victim’s C.J., 405-06, (Burger, dissent S.Ct. mail- fruition. The had come However, juris in the the confusion ing). At scheme. a thus ings were surrounding the mail fraud prudence stat made in mailings were point very that possibility leaves real ute already both case, the scheme was this prosecutors will enforce courts and federal addition, complete. concealed arbitrary and unforeseeable the statute in “lulling” this case not mailings in uncertainty in ways. Infusing even more victims, promises full of false letters majori justice system, criminal as accurately stated reports which they were be) (or does, is not should not ty’s opinion bingo that games of instant the number I thus justice system. our keeping Bristol.7 of Pierce sold on behalf sufficiency of as to the respectfully dissent for mail Pierce’s conviction reasons, that the evidence on I believe For these ,1 majority in va existing fraud. concur with beyond majority’s analysis goes under United cating the mail sentence scope interpreting case law — U.S. -, Booker, sure, mail States To be fraud statute.8 (2005), and remand increasingly an L.Ed.2d subject to has been statute court for resen- to the district majority’s inter- this case reading. But if the broad tencing. as one in this case mailing pretation executing such

“for correct, then

scheme,” is 18 U.S.C. as how this element functions

I do not see re- jurisdictional more than

anything federal long prosecutors As

quirement. point can mailing that

can some find that to, tangential matter how no at their is, they will then have case was statement, Pierce in this noting only conduct am I By games 'lulling” for his own egregious. state- sold mailings did contain He not these Mailings selling games are in and innocent chari- profit he was ments. while Yet, a conviction Virginia can be used obtain organization. themselves the State table Badders fraud statute. the federal mail under dealing with Pierce's fully capable of is v. United accordingly. punishing him crimes 60 L.Ed.

Case Details

Case Name: United States v. Larry J. Pierce, II

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 26, 2005

Citation: 409 F.3d 228

Docket Number: 03-4956

Court Abbreviation: 4th Cir.