/f2d/829/0286-01

United States Court of Appeals for the First Circuit · 1987-09-28

Original case on neochart.com

Case and law context

18 U.S.C. § 1343

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:

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f2d/829/0286-01 — United States Court of Appeals for the First Circuit · 1987Wire transmission for execution of schemenot_reached
Excluded from merits counts
background / merits

Unspecified variantNo source quotation recorded for this block.
/f2d/829/0286-01 — United States Court of Appeals for the First Circuit · 1987Interstate or foreign transmissionnot_reached
Excluded from merits counts
background / merits

The court infers only that interstate communication was probable (one defendant incorporated in another state); left to discovery on remand.
Unspecified variantNo source quotation recorded for this block.
/f2d/829/0286-01 — United States Court of Appeals for the First Circuit · 1987Scheme or artifice to defraudsatisfied
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.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f2d/829/0286-01 — United States Court of Appeals for the First Circuit · 1987Transmission or causation by wire, radio, televisionnot
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.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Court interpretations recorded from this case