United States v. Feldman
criminal appeal after retrial; jury conviction for conspiracy to commit wire fraud (18 U.S.C. ยงยง 1343, 1349) and money-laundering conspiracy; sufficiency upheld, constructive-amendment, double-jeopardy, due-process and sentencing challenges rejected; affirmed (result: claimant-won)
Facts
- 1 Scheme or artifice to defraud satisfied proved
Based on Simchuk's testimony, the jury rationally could have found that Feldman knowingly participated in a scheme to charge customers for drinks they did not order, to lie to customers about the number and kind of drinks they were being charged for, and to lie to credit-card companies about the drinks patrons had ordered.
- 1 Scheme or artifice to defraud satisfied proved
Simchuk described a particular ruse in which bartenders would tell patrons that they were receiving two bottles of champagne for the price of one but charge them for both after they accepted the "free" bottle, and although he was describing his clubs in Latvia when he testified about this trick, he testified immediately afterward that he brought "exactly the same system" to Miami.
- 1 Scheme or artifice to defraud satisfied proved
Simchuk also testified that the "bartender's job was [to] open up the tab and clean up the credit card." He used the phrase "clean up the credit card" more than once, and, when the government asked him what it meant, he replied, "That's what I mean, run the credit card until it stopped. ... Just charge it."
- 1 Scheme or artifice to defraud satisfied proved
In Simchuk's words, once a customer ordered even a single drink, "[b]artender went to bar, open up the tab, let the guy sign, that's it, credit card gone."
- 4 Knowing participation with intent to defraud satisfied proved
"To prove a conspiracy to commit wire fraud, the government need not demonstrate an agreement specifically to use the interstate wires to further the scheme to defraud; it is enough to prove ... that the use of the interstate wires in furtherance of the scheme was reasonably foreseeable," provided the government "prove[s] that the defendant knowingly and voluntarily agreed to ... a scheme to defraud."
- 4 Knowing participation with intent to defraud satisfied proved
Simchuk repeatedly testified that once a patron made the mistake of providing his credit card to a bartender, it would "be charged for bottles he didn't order," that "this happen[ed] at Stars Lounge," and that Feldman "was aware of this" and knew "exactly what[ ] [was] going on there."
- 4 Knowing participation with intent to defraud satisfied proved
Simchuk testified about a scheme to commit what qualifies as fraud under any interpretation of the wire-fraud statute, and he testified that Feldman knowingly participated in that scheme.