Source: cases/18usc1341/f3d-231-471-us-v-chung-lo.case
Case source: https://www.neochart.com/catalog/cases/f3d/volume_231/0471_01/index.html
Mail fraud includes two general elements: first, the government must prove that a defendant devised or intended to devise a scheme to defraud a victim of his money or property; second, it must prove that in executing the scheme, the defendant made use of or caused the use of the mails.
There was more than sufficient evidence to prove that the scheme was fraudulent, and Lo does not contend otherwise.
Obviously, as the chain of inferences based on usual practices gets longer, the probability that nothing went wrong in administering those practices lessens. At some point, a reasonable doubt arises concerning whether, as Murphy’s Law predicts, that which can go wrong did go wrong.
Yet, the mailing is, of course, an essential element of the crime, and is the gatekeeper for separating those cases that are the exclusive province of the states from those that may be tried in federal court under the mail fraud statute.
We therefore conclude that in this case the evidence of the required mailing is far too tenuous to be sufficient, and reverse Lo’s conviction on Count Thirteen accordingly.
. That Lo did not herself specifically plan the mailing is immaterial.
The general principle upon which Lo relies is correct, for the government may not prevail without demonstrating that the mailings were incident to the execution of the scheme, rather than part of an after-the-fact transaction that, although foreseeable, was not in furtherance of the defendant’s fraudulent scheme.
Rather, as in Sampson and Schmuck, the mailing can occur after the defendant has obtained her fee, if “the mailing is part of the execution of the scheme as conceived by the perpetrator at the time.”
From the foregoing analysis we conclude that there was sufficient evidence to sustain the convictions on Counts Four, Five and Nine, the counts alleging mailing of a grant deed attesting to one of the original sham “sales,” and of the deeds of trust.
There is, however, sufficient evidence of a prior understanding that Bosnich would quitclaim the MacArthur deed back to the Bryants to permit the jury properly to find that the transfer of the MacArthur property to AgliboN-Bryant was part of the execution of Lo’s original plan, whether the precise timing was influenced by the FBI investigation or not.
This being the state of the evidence, no reasonable juror could conclude beyond a reasonable doubt that it was part of Lo’s fraudulent plan that Bosnich or Aglibot-Bryant would deed back the 79th Avenue property.
There is no basis in the evidence, however, for concluding that this second loan was part of Lo’s fraudulent scheme.
casedsl 1
case /f3d/231/0471-01
name United States v. Chung Lo
cite 231 F.3d 471 (2000)
court United States Court of Appeals for the Ninth Circuit
date 2000-11-01
url catalog/cases/f3d/volume_231/0471_01/index.html
source ir/caselaw/f3d_231.jsonl sha1=eac28d3d0ef0b4de0d3f3aa50810ee581b53784e chars=37729
law 18usc1341
role applied
posture criminal; real estate broker convicted by jury on eight mail fraud counts (plus conspiracy and related counts) for four fraudulent mortgage-loan transactions; appeal on sufficiency of the evidence of mailing (Count 13) and of furtherance (Counts 4-7, 9-11); four mail fraud convictions reversed, four affirmed
result mixed
element scheme : satisfied [conceded]
count Count 13 (Hugo property loan application to GSM)
variant fraudulent-inducement/broker-submits-falsified-mortgage-loan-application
fact @5082..5320 [supports] | Lo then prepared new loan applications which she submitted to Greater Suburban Mortgage (“GSM”) for the purchase of the Hugo property. The new applications contained numerous false statements about the Bau-tistas’ financial circumstances.
fact @5321..5459 [cuts-against] | This time, the lending institution discovered the fraud in its review of the application and notified Lo that it would not grant the loan.
rule @5996..6282 | Mail fraud includes two general elements: first, the government must prove that a defendant devised or intended to devise a scheme to defraud a victim of his money or property; second, it must prove that in executing the scheme, the defendant made use of or caused the use of the mails.
held @6348..6463 | There was more than sufficient evidence to prove that the scheme was fraudulent, and Lo does not contend otherwise.
gloss Unsuccessful scheme (lender caught the fraud; no loan funded) still treated as a scheme to defraud.
gloss CAVEAT: thin authority. The whole ruling is one sentence on a point the defendant did not contest ("Lo does not contend otherwise"), in a count whose conviction was reversed for want of proof of mailing; basis is [conceded] although the court adds that the evidence was "more than sufficient".
element mails : not-satisfied [no-evidence]
count Count 13 (Hugo property; Truth in Lending disclosure allegedly mailed by lender GSM)
variant postal-service/custom-and-practice-proof-of-document-never-shown-to-exist
fact @7877..8068 [supports] | The GSM witnesses explained that when the mortgage company receives an application, it generates the document and, within three days from receipt of the application, sends it to the borrower.
fact @8069..8265 [supports] | The GSM witnesses also testified that because the law requires this document, GSM has a series of provisions in place to insure that it is mailed, including cross-checks by other loan departments.
fact @8359..8434 [cuts-against absent] | No copy of the Truth in Lending notice in question was introduced at trial.
fact @8435..8716 [cuts-against absent] | No GSM witness testified that he or anyone else at the company had ever seen the specific, critical document, that there was any record that it had ever existed, that it was ever in GSM’s loan files (whether at the time of trial or earlier) or that the loan file was ever complete.
fact @8717..8906 [cuts-against absent] | Moreover, although the Bautistas, the putative borrowers, also testified at trial, they did not state that they had ever received the document, and they, also, did not produce a copy of it.
rule @11768..12050 | Obviously, as the chain of inferences based on usual practices gets longer, the probability that nothing went wrong in administering those practices lessens. At some point, a reasonable doubt arises concerning whether, as Murphy’s Law predicts, that which can go wrong did go wrong.
rule @14611..14848 | Yet, the mailing is, of course, an essential element of the crime, and is the gatekeeper for separating those cases that are the exclusive province of the states from those that may be tried in federal court under the mail fraud statute.
held @15177..15349 | We therefore conclude that in this case the evidence of the required mailing is far too tenuous to be sufficient, and reverse Lo’s conviction on Count Thirteen accordingly.
gloss Custom-and-practice evidence can prove mailing of a document shown to have entered the mail stream (Brackenridge, Green), but not where the jury must also infer that the document was ever created; unexplained absence of any copy or record of a legally required document supports a negative inference.
element mails : satisfied [conceded]
count Counts 4-7 and 9-11 (MacArthur and 79th Avenue properties; deeds mailed by the County Recorder)
variant postal-service/county-recorder-mails-recorded-deeds-to-parties
fact @3994..4228 [supports] | After the “sales” closed, the Alameda County Recorder’s office mailed the original grant deeds to Aglibot and Bosnich, the original deeds of trust to CMS and BHSC, and, some time later, a grant deed from Elma Aglibot to Jayson Bryant.
fact @16625..16762 [supports] | Lo does not dispute that the County Recorder mailed deeds to the lenders and to the owners, real and sham, of the two Oakland properties.
fact @37248..37393 [supports] | Printed at the top of the recording documents were specific instructions to the Recorder to mail the deed to the appropriate party when recorded.
held @36903..36973 | . That Lo did not herself specifically plan the mailing is immaterial.
gloss The fact of mailing was undisputed; the court adds (footnote) that the defendant "caused" a third party's routine mailing because an experienced broker would know recorded deeds are mailed.
element furtherance : satisfied [proved]
count Counts 4, 5 and 9 (grant deed for the original sham sale; deeds of trust to the lenders)
variant lulling/routine-post-closing-deed-mailings-in-sham-sale
fact @15742..15861 [cuts-against] | These mailings occurred after the loans had been funded and after the deeds had been recorded in the Recorder’s office.
fact @20651..20764 [supports] | Lo’s plan was structured to make it appear that the properties had been sold, when in fact the sales were a sham.
fact @20940..21363 [supports] | The mailings could serve to “lull the victims” — in this case, the loaning banks — “into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely,” by assuring them that the conveyance of the property had gone forward in accordance with the usual procedures of the Recorder’s office and providing them with documentary proof thereof.
rule @18110..18424 | The general principle upon which Lo relies is correct, for the government may not prevail without demonstrating that the mailings were incident to the execution of the scheme, rather than part of an after-the-fact transaction that, although foreseeable, was not in furtherance of the defendant’s fraudulent scheme.
rule @19111..19310 | Rather, as in Sampson and Schmuck, the mailing can occur after the defendant has obtained her fee, if “the mailing is part of the execution of the scheme as conceived by the perpetrator at the time.”
held @22097..22347 | From the foregoing analysis we conclude that there was sufficient evidence to sustain the convictions on Counts Four, Five and Nine, the counts alleging mailing of a grant deed attesting to one of the original sham “sales,” and of the deeds of trust.
gloss Post-payoff mailings further the scheme when the scheme as conceived was not complete at funding: the sham sale had to look like a normal conveyance, and the recorder's mailings reassured the lenders (contrast Kann, Parr, Maze, where the later mailing tended to expose the fraud).
element furtherance : satisfied [proved]
count Count 7 (MacArthur property; straw purchaser's deed to the owner's wife, mailed about 18 months after closing)
variant scheme-as-conceived/straw-purchaser-deed-back-by-prior-understanding
fact @22892..23078 [supports] | He testified that he was not expected to contribute any money toward the mortgage payments and that after a year he planned to quitclaim his interest in the property back to the Bryants.
fact @23079..23367 [cuts-against] | Bosnich did not, however, quitclaim his interest in the MacArthur property a year later, but did so only after another several months, after the FBI approached him with questions about the fraudulent loan applications and informed him that his name was listed on the 79th Avenue property.
held @23598..23951 | There is, however, sufficient evidence of a prior understanding that Bosnich would quitclaim the MacArthur deed back to the Bryants to permit the jury properly to find that the transfer of the MacArthur property to AgliboN-Bryant was part of the execution of Lo’s original plan, whether the precise timing was influenced by the FBI investigation or not.
element furtherance : not-satisfied [no-evidence]
count Counts 10 and 11 (79th Avenue property; deed-back mailings)
variant scheme-as-conceived/straw-purchaser-deed-back-without-prior-plan
fact @24082..24179 [cuts-against] | Both Bosnich and Aglibot-Bryant denied knowing that their names were on the 79th Avenue property.
fact @24180..24262 [cuts-against absent] | Neither they nor anyone else testified to a prior plan to deed back that property.
fact @24401..24557 [cuts-against absent] | Nor is there any evidence that Lo ever told, or intended to tell, Bosnich or Agli-bot-Bryant that she had used their names on the 79th Avenue property loan.
held @24558..24770 | This being the state of the evidence, no reasonable juror could conclude beyond a reasonable doubt that it was part of Lo’s fraudulent plan that Bosnich or Aglibot-Bryant would deed back the 79th Avenue property.
gloss Same kind of mailing as Count 7, opposite result: without evidence that a deed-back was part of the plan as conceived, the later deed mailings were not in execution of the scheme.
element furtherance : not-satisfied [no-evidence]
count Count 6 (MacArthur property; deed securing a later loan from a private lender)
variant scheme-as-conceived/mailing-arising-from-separate-later-loan
fact @25248..25481 [supports] | To this end, money from Brubaker was placed in an account in Aglibot-Bryant’s name. Brubaker was then repaid out of the escrow account before the MacArthur transaction closed. No mailings are charged with respect to that transaction.
fact @25482..25669 [cuts-against] | It appears that Brubaker subsequently made a second loan to the Bryants which he secured with a deed of rents on the MacArthur property and which led to the mailing at issue in Count Six.
held @25670..25786 | There is no basis in the evidence, however, for concluding that this second loan was part of Lo’s fraudulent scheme.
element property : not-reached
gloss Lenders' loan funds; not contested.
element materiality : not-reached
element intent : not-reached
misfit Known (result per opinion, not per count): eight mail fraud counts, four affirmed (4, 5, 7, 9) and four reversed (6, 10, 11, 13); `result mixed` plus free-text `count` values is all the notation offers, and the count groups cannot be joined across blocks.
misfit `mails` holds two distinct questions: whether a mailing occurred at all (Count 13) and whether the defendant "caused" a third party's mailing (footnote, Counts 4-11: reasonable foreseeability under Pereira). No sub-ids are declared. The same Pereira foreseeability standard is also discussed in a ruling that the 371 conspiracy counts were adequately pleaded although they did not allege it (tardy challenge, liberal construction) - a pleading ruling on a different statute, not recorded as a block.
misfit The Count 13 ruling is about a mode of proof (custom-and-practice evidence, length of the inferential chain, negative inference from missing records), i.e. evidence law attached to the element; recorded only in variant and gloss.
misfit Rulings with no declared id, not recorded as blocks: statute of limitations on the superseding indictment held waived (first raised on appeal); Confrontation Clause / cross-examination limit on a witness for Counts 1-2 (which are not among the eight mail fraud counts).
misfit Basis for the uncontested elements: `scheme` on Count 13 is "more than sufficient evidence" AND undisputed on appeal (recorded as [conceded] with a CAVEAT gloss); `mails` on Counts 4-11 is undisputed as to the fact of mailing but the causation gloss is a legal ruling. One basis per block (known item 5).
misfit Sufficiency review: facts are taken in the light most favourable to the verdict; the lulling fact is the court's statement of what the jury "could have found", not a finding (known: polarity does not say whose version or how firmly credited).