United States Court of Appeals for the First Circuit · 1987-09-28
18usc1343: author: Fable · not independently reviewed
Case and law context
Role: background; posture: civil RICO (1962(b),(c),(d)) with mail and wire fraud as predicate acts; complaint dismissed under Fed.R.Civ.P. 9(b) after limited interrogatories; plaintiff appeals; result: remanded; claim:
Uncertainty
None recorded
Misfit
The ruling is about pleading particularity under Rule 9(b) and a district court's discretion over discovery, with 1343 only a RICO predicate (18 U.S.C. 1961(1)(B)); the opinion treats mail and wire fraud together throughout. The case-level role is therefore `background` and both blocks are `scope procedural`, so neither is an instance, but `not-satisfied [pleaded]` still conflates "too vague under 9(b), may replead" with "allegations legally insufficient" (known gap 5), and the cross-law pointer to 18usc1962 cannot be expressed (known gap 10).
The court's new two-step test (9(b) satisfied? if not, allow discovery?) is a rule about procedure with a multi-factor list; it sits as a `rule` line under `wire` only because the wire/mail use is what must be particularized.
Whether a fraudulent conveyance that deceives no one by a statement is a "scheme to defraud", and whether materiality/property are met, is never analysed; the opinion gives no basis for blocks on those elements.
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 8
| Case | Scheme or artifice to defraud | Traditional money or property as an object | Material deception | Knowing participation with intent to defraud | Transmission or causation by wire, radio, television | Wire transmission for execution of scheme |
|---|---|---|---|---|---|---|
| New England Data Services, Inc. v. Becher — 829 F.2d 286 (1987) · United States Court of Appeals for the First Circuit · 1987 (18usc1343: author: Fable · not independently reviewed) | ✓ satisfied · pleadedNot counted: background/procedural | · not addressed | · not addressed | · not addressed | ✗ not · pleadedNot counted: background/procedural | ○ not reached · basis not recordedNot counted: background/merits |
Elements 7–8 of 8
| Case | Interstate or foreign transmission | Separate section 1346 theory; outside property-fraud claim |
|---|---|---|
| New England Data Services, Inc. v. Becher — 829 F.2d 286 (1987) · United States Court of Appeals for the First Circuit · 1987 (18usc1343: author: Fable · not independently reviewed) | ○ not reached · basis not recordedNot counted: background/merits | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| New England Data Services, Inc. v. Becher — 829 F.2d 286 (1987) · United States Court of Appeals for the First Circuit · 1987 — not reached (18usc1343: author: Fable · not independently reviewed) | Wire transmission for execution of scheme | not_reached Excluded from merits counts background / merits | Unspecified route | No source quotation recorded for this block. |
| New England Data Services, Inc. v. Becher — 829 F.2d 286 (1987) · United States Court of Appeals for the First Circuit · 1987 — not reached (18usc1343: author: Fable · not independently reviewed) | Interstate or foreign transmission | not_reached Excluded from merits counts background / meritsThe court infers only that interstate communication was probable (one defendant incorporated in another state); left to discovery on remand. | Unspecified route | No source quotation recorded for this block. |
| New England Data Services, Inc. v. Becher — 829 F.2d 286 (1987) · United States Court of Appeals for the First Circuit · 1987 — satisfied · pleaded (18usc1343: author: Fable · not independently reviewed) | Scheme or artifice to defraud | satisfied Excluded from merits counts background / procedural basis: pleaded The adequacy of the scheme allegations is a factor in the court's discovery-before-dismissal test, not a merits ruling; a footnote says the comment does not reflect on the strength of the merits. No misrepresentation to the plaintiff is identified: the alleged fraud is a transfer of assets out of a judgment creditor's reach. | fraudulent-transfer/sham-stock-sale-and-security-interest-to-defeat-judgment-creditor | Shortly after entry of judgment in favor of plaintiff, Becher, Valenti and Schechter, pursuant to an alleged conspiracy to defraud creditors, sold all the stock of Ginsu and IBI to buyers, including defendants Schecter and Monarch Investments, an entity created by Schecter.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [1144:1418] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.The transfer of the security interest was made without fair consideration to the corporations, thereby rendering the corporations insolvent.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [1569:1709] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.After plaintiff commenced efforts to collect its judgment against Ginsu and IBI, defendants Becher and Valenti declared a default under the stock sale agreement, and exercising their rights as holders of a security interest, took possession of Ginsu’s and IBI’s assets.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [1889:2158] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.The plaintiff clearly set out a general scheme, which very plausibly was meant to defraud the plaintiff, and also probably involved interstate commerce.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [13599:13751] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73. |
| New England Data Services, Inc. v. Becher — 829 F.2d 286 (1987) · United States Court of Appeals for the First Circuit · 1987 — not · pleaded (18usc1343: author: Fable · not independently reviewed) | Transmission or causation by wire, radio, television | not Excluded from merits counts background / procedural basis: pleaded The claim actually brought is civil RICO (18 U.S.C. 1962(b),(c),(d)); § 1343 (with § 1341, treated together throughout) appears only as an alleged predicate act, hence case-level `role background`: no block in this file is an instance of wire fraud. A Rule 9(b) particularity ruling, not a holding that no wire was used: the bare information-and-belief allegation of wire/mail use fails 9(b), but dismissal was an abuse of discretion because the pleaded scheme and the out-of-state defendant make interstate communication probable and the details are peculiarly within defendants' knowledge. Remanded for 60 days of discovery limited to use of the wires and mails, then amendment. | rule-9b-particularity/use-of-wires-alleged-on-information-and-belief | On information and belief, in effecting the stock sale agreement, the grant of the security interest, in purporting to exercise remedies to enforce said security interest, and in furtherance of the fraudulent scheme, defendants on two or more occasions used the mails and/or transmitted communications by wire in interstate or foreign commerce ...Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [3269:3616] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.The plaintiffs have merely stated conclusory allegations of mail and wire fraud, see ante p. 288, with no description of any time, place or content of the communication.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [18246:18415] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.Defendants responded that, “to the best of [their] recollection,” they had not used the wires and mails.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [18639:18743] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.Assuming the facts as stated in plaintiff’s complaint, defendant Monarch Investments is incorporated in a different state than that resided in by the other defendants.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [13752:13919] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.In RICO, the plaintiff must go beyond a showing of fraud and state the time, place and content of the alleged mail and wire communication perpetrating that fraud.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [16678:16840] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.In an appropriate case, where, for example the specific allegations of the plaintiff make it likely that the defendant used interstate mail or telecommunications facilities, and the specific information as to use is likely in the exclusive control of the defendant, the court should make a second determination as to whether the claim as presented warrants the allowance of discovery and if so, thereafter provide an opportunity to amend the defective complaint.Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [12836:13298] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73.It is apparent in the instant case that the complaint does not satisfy Rule 9(b).Source: docroot/ir/caselaw/f2d_829.jsonl#/f2d/829/0286-01; Unicode character offsets [18164:18245] (end exclusive); SHA-256 86b85ab2b6819f0efe8825cd505d39109400d94c02df852cb996b39d4b5bdc73. |