United States Court of Appeals for the Second Circuit · 2019-06-13
18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)
Case and law context
Role: applied; posture: civil; foreign plaintiff sued his cousin under civil RICO for misappropriating estate funds held in New York bank accounts; district court dismissed the second amended complaint under Rule 12(b)(6) for lack of domestic injury, extraterritorial predicates and no pattern; CA2 reversed and remanded (second appeal); result: claimant-won; claim: (c), (d)
Uncertainty
Element injury: route: the sub-question is WHERE the injury was suffered (domestic vs foreign injury under RJR Nabisco); the menu (business-or-property, racketeering-injury, ripeness-of-loss) has no such route. Flash's `racketeering-injury` (Sedima) was wrong.
Element injury: route: same missing domestic-injury route as above.
Misfit
Not recorded as blocks: (1) `pattern` -- held adequately pleaded only because Elsaca waived any argument that the surviving schemes together fail (basis `waived` is not available with `satisfied`); (2) the holdings that the mail-, wire- and bank-fraud predicates are applied domestically when use of domestic mail or wires is a core component of the scheme -- an extraterritoriality ruling on the predicate statutes, not on a declared § 1962 element.
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 19
| Case | Culpable person (§ 1961(3)) distinct from the enterprise under (c) | Pattern of racketeering activity (§ 1961(5)): at least two predicate acts with relatedness and continuity | Racketeering activity (§ 1961(1) enumerated state and federal predicate offenses) | Collection of an unlawful debt (§ 1961(6)) — alternative to pattern of racketeering activity | Use or investment of racketeering income in an enterprise (§ 1962(a)) | Enterprise (§ 1961(4)): legal entity or association-in-fact |
|---|---|---|---|---|---|---|
| Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 7–12 of 19
| Case | Interstate or foreign commerce nexus | De minimis open-market securities investment proviso (§ 1962(a)) | Acquire or maintain interest in or control of an enterprise (§ 1962(b)) | Defendant employed by or associated with the enterprise (§ 1962(c)) | Conduct or participate in the conduct of enterprise affairs (§ 1962(c) operation or management test) | Conspiracy to violate § 1962(a), (b), or (c) (§ 1962(d)) |
|---|---|---|---|---|---|---|
| Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 13–18 of 19
| Case | Civil RICO injury to business or property (18 U.S.C. § 1964(c)) | But-for and proximate causation ("by reason of", 18 U.S.C. § 1964(c)) | Statute of limitations (4-year civil under Agency Holding; 5-year criminal under 18 U.S.C. § 3282) | Claim preclusion / release by prior class-action settlement | Civil aiding and abetting a RICO violation (rejected as a private cause of action) | Fifth Amendment Double Jeopardy bar against successive RICO conspiracy/substantive prosecutions |
|---|---|---|---|---|---|---|
| Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 19–19 of 19
| Case | Parol evidence rule raised to bar extrinsic evidence of fraudulent misrepresentations |
|---|---|
| Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 — satisfied · pleaded (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Civil RICO injury to business or property (18 U.S.C. § 1964(c)) | satisfied Counted merits instance applied / merits basis: pleaded; claim: (c), (d); party: Bascuñán and affiliated plaintiffs (Chilean citizen and resident; owner of the Estate); Elsaca and affiliated defendants (cousin and estate manager holding power of attorney); count: the Fintair, Tarascona, Sham Anacapri Sale and BCI Dividend schemes (the New York Trust Account and BCI Share Theft schemes being undisputed); theory: domestic injury under RJR Nabisco / § 1964(c); subject: party=Bascuñán and affiliated plaintiffs (Chilean citizen and resident; owner of the Estate); Elsaca and affiliated defendants (cousin and estate manager holding power of attorney); count=the Fintair, Tarascona, Sham Anacapri Sale and BCI Dividend schemes (the New York Trust Account and BCI Share Theft schemes being undisputed); theory=domestic injury under RJR Nabisco / § 1964(c) Domestic-injury requirement of § 1964(c) (RJR Nabisco): money moved by the agent between the owner's own accounts is not yet stolen; the injury occurs where the funds sit when they leave the owner, here New York. The plaintiff's foreign residence was the district court's original (rejected) test. | foreign owner's funds stolen out of estate-owned New York bank accounts by his own agent | The Estate owned Fintair when Elsaca transferred money into and out of its New York bank account, a fact Elsaca conceded in a declaration he submitted to the district court.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [21890:22063] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.The alleged theft or misappropriation occurred when the funds left the Estate, at which time they were located in a Morgan Stanley bank account in New York.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [22412:22568] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.The SAC alleges that Elsaca opened eleven New York bank accounts in Tarascona's name, filled them with money from the Estate's foreign accounts, and over time transferred the money out of the Estate.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [26472:26671] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.Bascuñán is a resident and citizen of Chile.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [1273:1317] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c."when a foreign plaintiff maintains tangible property in the United States, the misappropriation of that property constitutes a domestic injury."Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [18062:18207] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.In sum, each of the injuries alleged in the SAC, except for the Sham Management Fees Scheme, calls for a domestic application of civil RICO.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [29003:29143] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c. |
| Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 — not · pleaded (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Civil RICO injury to business or property (18 U.S.C. § 1964(c)) | not Counted merits instance applied / merits basis: pleaded; claim: (c), (d); party: Bascuñán and affiliated plaintiffs (Chilean citizen and resident; owner of the Estate); Elsaca and affiliated defendants (cousin and estate manager holding power of attorney); count: the Sham Management Fees scheme; theory: domestic injury under RJR Nabisco / § 1964(c); subject: party=Bascuñán and affiliated plaintiffs (Chilean citizen and resident; owner of the Estate); Elsaca and affiliated defendants (cousin and estate manager holding power of attorney); count=the Sham Management Fees scheme; theory=domestic injury under RJR Nabisco / § 1964(c) | location of the accounts the fees were taken from not alleged | Bascuñán concedes that he does not know where the injuries caused by the Sham Management Fees Scheme took place because he does not know the locations of the accounts from which Elsaca withdrew the relevant funds.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [28311:28524] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.Bascuñán claims Elsaca transferred this money from unknown accounts to several New York-based Morgan Stanley bank accounts owned by GM&E, a shell corporation that Elsaca indirectly owned.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [8737:8924] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c."the use of bank accounts located within the United States to facilitate or conceal the theft of property located outside of the United States does not, on its own, establish a domestic injury."Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [19497:19691] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.Because the SAC does not allege that these injuries took place in the United States, the district court correctly held that this scheme is impermissibly extraterritorial as pleaded.Source: docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [28615:28796] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c. |
Court interpretations recorded from this case
interpretation
We therefore hold that a claim predicated on mail or wire fraud involves sufficient domestic conduct when (1) the defendant used domestic mail or wires in furtherance of a scheme to defraud, and (2) the use of the mail or wires was a core component of the scheme to defraud.
Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 (18usc1341: author: unavailable · not independently reviewed)
We therefore hold that a claim predicated on mail or wire fraud involves sufficient domestic conduct when (1) the defendant used domestic mail or wires in furtherance of a scheme to defraud, and (2) the use of the mail or wires was a core component of the scheme to defraud.Source:
docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [33665:33939] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.Identify sufficient domestic conduct when a cross-border scheme is alleged Second Circuit domestic-application holding in a civil RICO case; do not replace ordinary furtherance with this core-component formulation in every domestic prosecution.
interpretation
We therefore hold that a claim predicated on mail or wire fraud involves sufficient domestic conduct when (1) the defendant used domestic mail or wires in furtherance of a scheme to defraud, and (2) the use of the mail or wires was a core component of the scheme to defraud.
Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 (18usc1343: author: unavailable · not independently reviewed)
We therefore hold that a claim predicated on mail or wire fraud involves sufficient domestic conduct when (1) the defendant used domestic mail or wires in furtherance of a scheme to defraud, and (2) the use of the mail or wires was a core component of the scheme to defraud.Source:
docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [33665:33939] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.Identify sufficient domestic conduct when a cross-border scheme is alleged Second Circuit domestic-application holding in a civil RICO case; do not replace ordinary furtherance with this core-component formulation in every domestic prosecution.
interpretation
Count 1 alleges that, through the above-described conduct, all Defendants violated 18 U.S.C. § 1962(c), a substantive provision of RICO prohibiting individuals from conducting an enterprise through a pattern of racketeering activity.
Bascuñán v. Elsaca — 927 F.3d 108 (2019) · United States Court of Appeals for the Second Circuit · 2019 (18usc1962: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))
Count 1 alleges that, through the above-described conduct, all Defendants violated 18 U.S.C. § 1962(c), a substantive provision of RICO prohibiting individuals from conducting an enterprise through a pattern of racketeering activity.Source:
docroot/ir/caselaw/f3d_927.jsonl#/f3d/927/0108-01; Unicode character offsets [10704:10937] (end exclusive); SHA-256 98fe49dd88fa827938a668df226c5f2fdb334de0cbade07511388246b19d7f3c.Alternative to `debt` ("or collection of unlawful debt"). Under H.J. Inc. v. Northwestern Bell, statutory minimum of two predicates within 10 years is necessary but not sufficient: requires relatedness + continuity (`pattern.relatedness` and `pattern.continuity`).