UNITED STATES of America, Plaintiff-Appellee, v. Roger Lee ANDREWS, Defendant-Appellant.
No. 14-2045.
United States Court of Appeals, Sixth Circuit.
Oct. 16, 2015.
823
restrictions in 2007. But the Forest Service rejected their challenges and stood by its restrictions. And the Forest Service‘s dеfense in this lawsuit offers no reason to think it would treat the Herrs any differently, especially after it threatened criminal enforcement of the order against them. The Herrs could thus “fairly assume that the same [agency] would apply” the same standard to the same facts to reach the same result. Cf. Dozier, 466 F.3d at 535 (emphasis added). The law does not force them to take on hopeless causes.
For these reasons, we reverse and remand for further proceedings consistent with this opinion.
Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.
OPINION
SUTTON, Circuit Judge.
Roger Lee Andrews borrowed a lot of money from several people, claiming the money would go to improve several рroperties and that he would pay it back quickly with substantial interest. Neither happened. He never returned the money or for that matter paid any interest. And the properties were a mirage. The money instead went into a personal day-trading account and never reappeared. A jury convicted him of one count of wire fraud. We affirm.
From 2006 to 2008, Andrews asked variоus friends and colleagues to loan him money—roughly two million dollars in total. When he asked for a loan, Andrews usually gave a reason. He said he needed money to purchase proрerty in Indianapolis or to improve property that he owned in the area. On occasion Andrews used other pretenses. All told, as Andrews admits, there were seventeen instances in whiсh he borrowed money on such grounds. For the most part, as one lender put it, “[i]t was always about” property in “Indianapolis.” R. 82 at 65.
Except it was not. Unbeknownst to the lenders, Andrews never owned, bоught, or improved property in Indianapolis. Andrews instead mostly used the money to fund a day-trading account with TD Ameritrade. Any skill Andrews had in convincing others to loan him money did not translate into skill as an investor. Andrews was invariably buying when he should have been selling and selling when he should have been buying. Most of the money vanished.
Sometimes Andrews paid the loans back, especially early in the schemе. But most of the time he did not, especially as time went on. When Andrews borrowed money that he could not repay on time, he continued to tell tales about the Indianapolis propеrty to assure his victims that their loans would eventually be returned, though “it was going to take a little bit of time.” R. 82 at 51-55. Andrews‘s assurances that the Indianapolis property existed and that the money was being usеd for purposes related to it continued well after the last loan occurred—at least into 2010. All in all, Andrews‘s victims lost over 1.4 million dollars.
A grand jury indicted Andrews on one count of wire fraud, see
Scheme to defraud? All of the loans that Andrews obtained to fund his day-trading account were part of a single “scheme . . . to defraud.”
Ample evidence supported the resulting conviction—and most pertinently the necessary finding that the sсheme included all of the fraudulently obtained loans, including those that occurred as early as 2006. Several pieces of evidence united the loans into one scheme to defraud: (1) a common false statement of a need for funds, usually related to nonexistent Indianapolis property; (2) a common group of victims, usually friends or colleagues, who loaned money to Andrews repeatedly; and (3) a common purpose for the funds, usually the need to fund Andrews‘s day-trading account. Five witnesses confirmed the common false statement of need for the funds—that Andrews claimed he needed money in connection with property in Indiana. The four victims had similar relationships with Andrews: Two were friends and business associates; one considered Andrews his “[b]еst friend[ ],” R. 84 at 7; and one had a business relationship with Andrews. And Andrews used most of the money in the same way—to fund his day trading. Altogether, this evidence readily fits within our understanding of a “scheme to defraud.” See United States v. Kennedy, 714 F.3d 951, 957-59 (6th Cir. 2013); Cunningham, 679 F.3d at 370-71.
No dоubt in some cases each individual fraudulent act (here each individual loan) is treated as a single “scheme to defraud,” and each act is charged as a stand-alone violatiоn of
Time bar? Andrews also was indicted within the five-year statute of limitations. See
Andrews‘s contrary аrguments do not do the trick. He claims that “[e]ach fraudulently induced loan was its own scheme” that ended when he received the loan, Appellant‘s Br. 32, and that his prosecution for any loans received prior to September 2008 thus should be time barred. But the jury concluded otherwise, and sufficient evidence supports its finding, as we have explained. Andrews‘s understanding of “scheme to dеfraud,” moreover, is not ours—and more particularly it is not the one reflected in our caselaw. Several common acts in support of a common fraudulent design may create a scheme to defraud, as opposed to isolated acts of fraud. See Kennedy, 714 F.3d at 957-59; Cunningham, 679 F.3d at 370-71.
At various points in his initial brief, Andrews seems to challenge his indictment as duplicitous. But as Andrews later acknowledges, he made no such challenge below and does not mean to raise such a challenge now. His argument instead turns on the statute of limitations, a contention we have already considered and rejected.
United States v. Anderson, 188 F.3d 886 (7th Cir. 1999), does him no good. In that case, the Seventh Circuit held that the scheme “was completed upon receipt of the funds” and that “[t]he mere act of transfеrring money from one bank account to another was not part of the original scheme to defraud, nor did it create a new financial risk.” Id. at 891. That setting is not this one. Having received money оn false pretenses, Andrews did not place it in a bank account and leave it there. He put it in a trading account, continuing to invest it and continuing to expose it to new financial risks, as each victim can attest. The fraud did not end when he obtained the loans from his victims. What is more, Andrews continued to assure his victims that the money he had taken from them was still being used to buy or improve the Indianapolis property long after he had obtained the money. Such actions have a “lulling effect” on the victims, making the actions part of the ongoing fraud. United States v. Faulkenberry, 614 F.3d 573, 582-83 (6th Cir. 2010); see United States v. Lane, 474 U.S. 438, 451-52, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986). All of these actions came within the “scheme to defraud” and indeed were part and parcel of it. The statute of limitations did not bar the government‘s prosecution of the whole scheme.
For these reasons, we affirm.