United States District Court for the Southern District of New York · 1997-02-20
Case and law context
Role: applied; posture: criminal; jury conviction on two wire fraud counts (§§ 1343, 1346) arising from a sting; defendant's post-verdict Rule 29(c) motion for judgment of acquittal (sufficiency) denied; result: claimant-won; claim:
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Variant | Exact source quotations |
|---|---|---|---|---|
| /f-supp/957/0039-01 — United States District Court for the Southern District of New York · 1997 | Wire transmission for execution of scheme | satisfied Counted merits instance applied / merits basis: proved; count: Count Two (November 21, 1995 telephone call); subject: count=Count Two (November 21, 1995 telephone call) The scheme did not end when the favourable recommendation was secured: paying the bribe and hiding it from the victim were still to come, so a call about structuring the payments furthers it (conspiracy payoff and concealment cases cited by analogy). | after-objective-obtained/call-arranging-payoff-and-concealment | 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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [10590:10752] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.Defendant also intended to pay the undercover officer a bribe for his participation in defendant’s scheme.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [11002:11108] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [11540:11773] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [11127:11340] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [12182:12345] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64. |
| /f-supp/957/0039-01 — United States District Court for the Southern District of New York · 1997 | Separate section 1346 theory; outside property-fraud claim | satisfied Counted merits instance applied / merits basis: proved; theory: § 1346 honest services of a person the defendant believed to be the victim's consultant; no actual fiduciary duty; subject: theory=§ 1346 honest services of a person the defendant believed to be the victim's consultant; no actual fiduciary duty CAVEAT: dated authority. A 1997 district-court reading of § 1346 that predates the later narrowing of honest-services fraud reflected in the law file's boundary rule ("covers only bribery or kickbacks"). The scheme here was a bribe, but the no-actual-fiduciary-duty ruling should not be taken as a current statement of the theory's limits. The disputed point is legal (must someone actually owe the victim a fiduciary duty?) and is answered no; on that reading the trial evidence suffices. The bribe-taker was an undercover officer who owed the company nothing. | fiduciary-duty/believed-agent-of-victim-was-undercover-officer | 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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [834:1138] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [6314:6534] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.The statute does not expressly limit culpability to cases involving schemes to deprive another of, “honest services of a fiduciary.”Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [6963:7095] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [7096:7244] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.Accordingly, the government’s proof satisfies every essential element of wire fraud under §§ 1343 and 1346.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [10019:10126] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64. |
| /f-supp/957/0039-01 — United States District Court for the Southern District of New York · 1997 | Knowing participation with intent to defraud | satisfied Counted merits instance applied / merits basis: proved | contemplated-harm/bribe-to-supposed-insider-concealed-from-victim | defendant concealed his agreement with the undercover officer from TishmanSource: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [1063:1137] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.However, the government must establish that “some actual harm or injury was contemplated by the schemer.”Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [4322:4427] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.Thus, the government has established that defendant intended to defraud Tishman of the honest services of its consultant.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [9897:10018] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64. |
| /f-supp/957/0039-01 — United States District Court for the Southern District of New York · 1997 | Interstate or foreign transmission | not_reached Excluded from merits counts applied / merits | Unspecified variant | No source quotation recorded for this block. |
| /f-supp/957/0039-01 — United States District Court for the Southern District of New York · 1997 | Scheme or artifice to defraud | satisfied Counted merits instance applied / merits basis: proved; theory: scheme incapable of success (target of the bribe was a government agent); subject: theory=scheme incapable of success (target of the bribe was a government agent) Impossibility is no defense: a scheme is judged by what the schemer devised and intended, not by whether it could have harmed the victim. The cuts-against line is the court's own statement of the defendant's premise, which it then holds legally irrelevant. | inchoate-scheme/factually-impossible-sting | 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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [9702:9896] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [8728:8921] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [8922:9101] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64.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.Source: docroot/ir/caselaw/f_supp_957.jsonl#/f-supp/957/0039-01; Unicode character offsets [9102:9280] (end exclusive); SHA-256 d4d9c76f73ba5d2026b0b0f29447c423328d268df1178783fd6dcec8db2fbe64. |
| /f-supp/957/0039-01 — United States District Court for the Southern District of New York · 1997 | Transmission or causation by wire, radio, television | not_reached Excluded from merits counts applied / meritsTelephone calls of November 19 and 21, 1995; use of the wires was not contested. | Unspecified variant | No source quotation recorded for this block. |