United States v. Granberry

725 F. Supp. 446 (1989) United States District Court for the Eastern District of Missouri 1989-11-15

criminal; two-count mail fraud re-indictment (false denial of a murder conviction on a school bus operator's permit application and job application); defendant's motion to dismiss the indictment for failure to allege a scheme to obtain "money or property" under McNally (result: claimant-lost)

Facts

  1. 2 Traditional money or property as an object not pleaded
    On August 27, 1988, the Department of Revenue mailed defendant’s bus operator’s permit to the Normandy School District.
  2. 2 Traditional money or property as an object not pleaded
    The school district then hired defendant as a school bus driver, which the government claims would not have been the case had the school district known of defendant’s prior murder conviction.
  3. 2 Traditional money or property as an object not pleaded
    (1) Money from the Normandy School District in the form of wages paid,
  4. 2 Traditional money or property as an object not pleaded
    (3) Property of the Normandy School District being the exclusive control of how its money is spent,
  5. 2 Traditional money or property as an object not pleaded
    (4) Property of the Normandy School District being the exclusive control of who it hires to drive its children to and from school,
  6. 2 Traditional money or property as an object not pleaded
    (2) Money of the State of Missouri in the form of expenses and costs of processing a fraudulent school bus operator permit application,
  7. 2 Traditional money or property as an object not pleaded
    (3) Property of the State of Missouri being the exclusive control of distribution of school bus operator permits,
  8. 2 Traditional money or property as an object not pleaded
    This involves inquiring not only whether the asserted interest enjoys some ascertainable value, but also whether it is capable of being marketed, and whether the interest is a commodity that is generally exchanged for value in the open market.
  9. 2 Traditional money or property as an object not pleaded
    Rather, they express only a desire for control over their general affairs; indeed, they seem to express a desire for control alone.
  10. 2 Traditional money or property as an object not pleaded
    As the Court notes above, however, the interest in control must be focused upon some corresponding property right. Nothing in Carpenter suggests that control is in and of itself a property interest.
  11. 2 Traditional money or property as an object not pleaded
    The Court finds that the remaining intangible interests alleged in the indictment are “too ethereal” to warrant the protection of the mail fraud statute.
  12. 2 Traditional money or property as an object not pleaded
    The state, however, enjoys no property interest in licenses.
  13. 2 Traditional money or property as an object not pleaded
    If the state has no proprietary interest in bus operator’s permits, then it can have no property right in controlling their distribution.
  14. 2 Traditional money or property as an object not pleaded
    In the case at bar, the state had allocated resources for the purpose of processing bus operator’s permits long before defendant submitted his application.
  15. 2 Traditional money or property as an object not pleaded
    Processing this single permit did not deprive the state of its control over the allocation of resources.
  16. 2 Traditional money or property as an object not pleaded
    The school district certainly must have allocated a certain amount of money for the purpose of paying bus drivers.
  17. 2 Traditional money or property as an object not pleaded
    The district does not, in fact, object to how its money was spent. They wanted a bus driver, and that is precisely what they got. The district objects to who they got.
  18. 2 Traditional money or property as an object not pleaded
    This Court concludes that to find that the school district enjoyed a cognizable property right in controlling what type of person it paid wages would stand McNally on its head. The district enjoys no such property right.
  19. 2 Traditional money or property as an object not pleaded
    Defendant certainly did not “obtain”, nor does the government suggest that defendant sought to “obtain”, the state’s processing expenses.
  20. 2 Traditional money or property as an object not pleaded
    The government fails, however, to suggest an amount representing the expenses incurred by the state or even that the cost incurred by a government agency in processing a single application of this sort is susceptible of calculation.
  21. 2 Traditional money or property as an object not pleaded
    This Court cannot conclude that the effort exerted by the Missouri Department of Revenue in processing a single application for a bus operator’s permit in the regular course of business has any measurable value for the purposes of qualifying as “property” meriting the protection of the mail fraud statute.
  22. 2 Traditional money or property as an object not pleaded
    Likewise, the government’s claim that the state enjoyed any appreciable property interest in the piece of paper upon which defendant’s license was printed is patently absurd.
  23. 2 Traditional money or property as an object not pleaded
    It is irrefutable that the school district suffered no financial injury. The school district paid wages for the services of a bus driver; defendant provided these services.
  24. 2 Traditional money or property as an object not pleaded
    To summarize, this Court concludes that McNally and Carpenter stand for the proposition that a deprivation of property or an important right appurtenant thereto is required under the mail fraud statute.
  25. 2 Traditional money or property as an object not pleaded
    If the property itself is not lost, however, there must at least be some deprivation of an important right that accompanies the property, whereby the property holder’s use and enjoyment of the property is diminished.
  26. 2 Traditional money or property as an object not pleaded
    In the case at bar, the government makes no allegation that suggests that the school district was “deprived” of the wages paid to defendant.
  27. 2 Traditional money or property as an object not pleaded
    The government does not suggest that defendant did not perform the service of driving a bus for Normandy School District in return for the wages he received.
  28. 2 Traditional money or property as an object not pleaded
    Nor does the government suggest that defendant was so poorly qualified to perform the service of driving school buses that the district somehow received less than it paid for.
  29. 2 Traditional money or property as an object not pleaded
    Hence, this Court concludes that the indictment alleges no property deprivation under McNally and Carpenter and that it, therefore, fails to allege a violation of the mail fraud statute.