United States Court of Appeals for the Ninth Circuit · 2000-11-01
18usc1341: author: Fable · not independently reviewed
Case and law context
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; claim:
Uncertainty
None recorded
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.
`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.
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.
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).
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).
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).
B · Case × element grid
Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.
Elements 1–6 of 7
| Case | Scheme or artifice to defraud | Traditional money or property as an object | Material deception | Knowing participation with intent to defraud | Statutory mailing or carrier act | Mailing for execution of the scheme |
|---|---|---|---|---|---|---|
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 (18usc1341: author: Fable · not independently reviewed) | ○ not reached · basis not recordedNot counted: applied/merits | ○ not reached · basis not recordedNot counted: applied/merits | ○ not reached · basis not recordedNot counted: applied/merits |
Elements 7–7 of 7
| Case | Separate section 1346 theory; outside property-fraud claim |
|---|---|
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 (18usc1341: author: Fable · not independently reviewed) | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — satisfied · proved (18usc1341: author: Fable · not independently reviewed) | Mailing for execution of the scheme | satisfied Counted merits instance applied / merits basis: proved; count: Counts 4, 5 and 9 (grant deed for the original sham sale; deeds of trust to the lenders); subject: count=Counts 4, 5 and 9 (grant deed for the original sham sale; deeds of trust to the lenders) 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). | lulling/routine-post-closing-deed-mailings-in-sham-sale | These mailings occurred after the loans had been funded and after the deeds had been recorded in the Recorder’s office.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [15742:15861] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.Lo’s plan was structured to make it appear that the properties had been sold, when in fact the sales were a sham.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [20651:20764] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [20940:21363] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [18110:18424] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.”Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [19111:19310] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [22097:22347] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — not · no-evidence (18usc1341: author: Fable · not independently reviewed) | Mailing for execution of the scheme | not Counted merits instance applied / merits basis: no-evidence; count: Count 6 (MacArthur property; deed securing a later loan from a private lender); subject: count=Count 6 (MacArthur property; deed securing a later loan from a private lender) | mailing-arising-from-separate-later-loan | 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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [25248:25481] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [25482:25669] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.There is no basis in the evidence, however, for concluding that this second loan was part of Lo’s fraudulent scheme.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [25670:25786] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — not · no-evidence (18usc1341: author: Fable · not independently reviewed) | Mailing for execution of the scheme | not Counted merits instance applied / merits basis: no-evidence; count: Counts 10 and 11 (79th Avenue property; deed-back mailings); subject: count=Counts 10 and 11 (79th Avenue property; deed-back mailings) 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. | straw-purchaser-deed-back-without-prior-plan | Both Bosnich and Aglibot-Bryant denied knowing that their names were on the 79th Avenue property.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [24082:24179] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.Neither they nor anyone else testified to a prior plan to deed back that property.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [24180:24262] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [24401:24557] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [24558:24770] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — satisfied · proved (18usc1341: author: Fable · not independently reviewed) | Mailing for execution of the scheme | satisfied Counted merits instance applied / merits basis: proved; count: Count 7 (MacArthur property; straw purchaser's deed to the owner's wife, mailed about 18 months after closing); subject: count=Count 7 (MacArthur property; straw purchaser's deed to the owner's wife, mailed about 18 months after closing) | straw-purchaser-deed-back-by-prior-understanding | 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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [22892:23078] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [23079:23367] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [23598:23951] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — not reached (18usc1341: author: Fable · not independently reviewed) | Knowing participation with intent to defraud | not_reached Excluded from merits counts applied / merits | Unspecified route | No source quotation recorded for this block. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — not · no-evidence (18usc1341: author: Fable · not independently reviewed) | Statutory mailing or carrier act | not Counted merits instance applied / merits basis: no-evidence; count: Count 13 (Hugo property; Truth in Lending disclosure allegedly mailed by lender GSM); subject: count=Count 13 (Hugo property; Truth in Lending disclosure allegedly mailed by lender GSM) 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. | postal-service/custom-and-practice-proof-of-document-never-shown-to-exist | 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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [7877:8068] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [8069:8265] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.No copy of the Truth in Lending notice in question was introduced at trial.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [8359:8434] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [8435:8716] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [8717:8906] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [11768:12050] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [14611:14848] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [15177:15349] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — satisfied · conceded (18usc1341: author: Fable · not independently reviewed) | Statutory mailing or carrier act | satisfied Counted merits instance applied / merits basis: conceded; count: Counts 4-7 and 9-11 (MacArthur and 79th Avenue properties; deeds mailed by the County Recorder); subject: count=Counts 4-7 and 9-11 (MacArthur and 79th Avenue properties; deeds mailed by the County Recorder) 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. | postal-service/county-recorder-mails-recorded-deeds-to-parties | 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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [3994:4228] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [16625:16762] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.Printed at the top of the recording documents were specific instructions to the Recorder to mail the deed to the appropriate party when recorded.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [37248:37393] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.. That Lo did not herself specifically plan the mailing is immaterial.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [36903:36973] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — not reached (18usc1341: author: Fable · not independently reviewed) | Material deception | not_reached Excluded from merits counts applied / merits | Unspecified route | No source quotation recorded for this block. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — not reached (18usc1341: author: Fable · not independently reviewed) | Traditional money or property as an object | not_reached Excluded from merits counts applied / meritsLenders' loan funds; not contested. | Unspecified route | No source quotation recorded for this block. |
| United States v. Chung Lo — 231 F.3d 471 (2000) · United States Court of Appeals for the Ninth Circuit · 2000 — satisfied · conceded (18usc1341: author: Fable · not independently reviewed) | Scheme or artifice to defraud | satisfied Counted merits instance applied / merits basis: conceded; count: Count 13 (Hugo property loan application to GSM); subject: count=Count 13 (Hugo property loan application to GSM) Unsuccessful scheme (lender caught the fraud; no loan funded) still treated as a scheme to defraud. 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". | broker-submits-falsified-mortgage-loan-application | 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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [5082:5320] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.This time, the lending institution discovered the fraud in its review of the application and notified Lo that it would not grant the loan.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [5321:5459] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.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.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [5996:6282] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61.There was more than sufficient evidence to prove that the scheme was fraudulent, and Lo does not contend otherwise.Source: docroot/ir/caselaw/f3d_231.jsonl#/f3d/231/0471-01; Unicode character offsets [6348:6463] (end exclusive); SHA-256 928e2918c9b3913eacca99122eeea1b3ae403267d7e5224bd39e0afe24020b61. |