United States v. Sancho

Facts

1. 1 Scheme or artifice to defraud satisfied proved

   If the intended victim has no actual right to the employee’s honest services, the defendant’s scheme cannot be said to actually harm the victim by depriving the victim of those honest services.

2. 1 Scheme or artifice to defraud satisfied proved

   Yet, as noted in Part II of this Opinion, § 1343 does not require a defendant to have actually defrauded the intended victim, or that a defendant’s scheme was capable of doing so.

3. 1 Scheme or artifice to defraud satisfied proved

   The essence of the wire fraud act is the defendant’s intent to defraud, and the scheme he perpetrates in furtherance of that intent, and not the actual corruption of an employee.

4. 1 Scheme or artifice to defraud satisfied proved

   Here, the evidence produced at trial directly supported the government’s allegation that defendant attempted to defraud Tish-man by bribing someone defendant thought was a consultant to Tishman.

5. 4 Knowing participation with intent to defraud satisfied proved

   defendant concealed his agreement with the undercover officer from Tishman

6. 4 Knowing participation with intent to defraud satisfied proved

   However, the government must establish that “some actual harm or injury was contemplated by the schemer.”

7. 4 Knowing participation with intent to defraud satisfied proved

   Thus, the government has established that defendant intended to defraud Tishman of the honest services of its consultant.

8. 7 Wire transmission for execution of scheme satisfied proved

   At the beginning of the November 21,1995 telephone call, the undercover officer informed defendant that he had already made a favorable recommendation to Tishman.

9. 7 Wire transmission for execution of scheme satisfied proved

   Defendant also intended to pay the undercover officer a bribe for his participation in defendant’s scheme.

10. 7 Wire transmission for execution of scheme satisfied proved

    As the bribe was an integral part of defendant’s scheme, any conversation between defendant and the undercover officer regarding how the bribe would be made were “in furtherance” of the defendant’s overall scheme.

11. 7 Wire transmission for execution of scheme satisfied proved

    Defendant concedes that the November 21, 1995 telephone conversation between defendant and the undercover officer touched on how defendant would structure the bribe payments to avoid creating the appearance of a conflict of interest.

12. 7 Wire transmission for execution of scheme satisfied proved

    A judgment of acquittal with regard to Count Two is not warranted on the ground that the November 21 telephone call was not “in furtherance” of defendant’s scheme.

13. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved

    The evidence at trial showed that defendant agreed to pay a $1.25 million bribe to an undercover officer (who defendant believed to be a consultant of Tishman) to induce Tishman to participate in a construction project, and that defendant concealed his agreement with the undercover officer from Tishman.

14. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved

    It may be true, as defendant asserts, that no person has yet been prosecuted under the wire fraud statute for attempting to bribe someone who was actually an undercover officer rather than the intended victim’s employee.

15. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved

    The statute does not expressly limit culpability to cases involving schemes to deprive another of, “honest services of a fiduciary.”

16. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved

    There is simply no indication from the text of §§ 1343 and 1346 that a necessary element of wire fraud is the existence of an actual fiduciary duty.

17. 8 Separate section 1346 theory; outside property-fraud claim satisfied proved

    Accordingly, the government’s proof satisfies every essential element of wire fraud under §§ 1343 and 1346.