/f3d/59/0517-01

United States Court of Appeals for the Fifth Circuit · 1995-07-18

Original case on neochart.com

Case and law context

18 U.S.C. § 1343

Role: applied; posture: criminal; bench-trial conviction on three wire fraud counts (charged with § 1346 honest services) plus § 371 conspiracy and § 1956 money laundering; defendant appeals sufficiency of the evidence that he caused an interstate wire communication; result: claimant-lost; claim:

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f3d/59/0517-01 — United States Court of Appeals for the Fifth Circuit · 1995Wire transmission for execution of schemenot_reached
Excluded from merits counts
applied / merits

Unspecified variantNo source quotation recorded for this block.
/f3d/59/0517-01 — United States Court of Appeals for the Fifth Circuit · 1995Separate section 1346 theory; outside property-fraud claimnot_reached
Excluded from merits counts
applied / merits

Counts were charged under §§ 1343 and 1346 (citizens' right to the official's honest services); the panel does not discuss § 1346.
Unspecified variantNo source quotation recorded for this block.
/f3d/59/0517-01 — United States Court of Appeals for the Fifth Circuit · 1995Interstate or foreign transmissionnot_reached
Excluded from merits counts
applied / merits

That the agents' calls to the Missouri computer actually crossed state lines is recited as the only interstate communication in the record and was not disputed; what failed was the defendant's foreseeability of that interstate leg, recorded under `wire`.
Unspecified variantNo source quotation recorded for this block.
/f3d/59/0517-01 — United States Court of Appeals for the Fifth Circuit · 1995Scheme or artifice to defraudnot_reached
Excluded from merits counts
applied / merits

Loans from a lawyer practising before the defendant's agency, and favours in return, are recited but the court never decides whether they were a scheme to defraud.
Unspecified variantNo source quotation recorded for this block.
/f3d/59/0517-01 — United States Court of Appeals for the Fifth Circuit · 1995Transmission or causation by wire, radio, televisionnot
Excluded from merits counts
applied / superseded

basis: no-evidence; party: Brumley (recipient) and Cely (sender, unindicted co-conspirator); theory: "causes to be transmitted": foreseeability that a third party's handling of the transfer would use interstate wires; opinion: panel opinion of 1995-07-18, withdrawn on panel rehearing (79 F.3d 1430, IR /f3d/79/1430-01) and the case then reheard en banc (116 F.3d 728, IR /f3d/116/0728-01; convictions affirmed) -- neither annotated here; subject: party=Brumley (recipient) and Cely (sender, unindicted co-conspirator); theory="causes to be transmitted": foreseeability that a third party's handling of the transfer would use interstate wires; opinion=panel opinion of 1995-07-18, withdrawn on panel rehearing (79 F.3d 1430, IR /f3d/79/1430-01) and the case then reheard en banc (116 F.3d 728, IR /f3d/116/0728-01; convictions affirmed) -- neither annotated here

CAVEAT: NOT a current holding. The corpus itself records that this opinion was withdrawn ("The opinion in this case issued under date of July 18, 1995, is withdrawn", /f3d/79/1430-01, which pretermitted the sufficiency claim) and that the en banc court later affirmed the convictions (/f3d/116/0728-01). The block is therefore `scope superseded` and not an instance; it records what the withdrawn panel opinion decided. Sufficiency reversed. Sender and recipient were both in Texas; only Western Union's agents contacted a computer in Missouri. The government thought foreseeability of the interstate leg was not an element and offered no proof of it; the company's national footprint and a New Jersey address on the back of the form were not notice.
foreseeable-causation/intrastate-money-transfer-routed-through-out-of-state-computer
Cely wired the money from the Western Union office in Lufkin, Texas, to Brumley in Beaumont, Texas.
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [1493:1592] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

Neither Brumley nor Cely actually communicated with each other via interstate wires.
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [6661:6745] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

The only evidence in the record that could even inferentially show knowledge or foreseeability is: (1) Western Union is an international company with many agents throughout the United States and (2) the form Cely used in Lufkin, Texas, to initiate the sending of the money to Brumley listed, on the back, a Western Union corporate address in New Jersey.
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [8043:8396] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

Nowhere in his testimony does Cely say, or imply, that he knew, or that it was foreseeable to him, that his actions could result in an interstate wire communication.
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [8437:8602] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

When asked on cross-examination by Brumley’s attorney whether a wire transfer customer would be aware of Western Union’s interstate computer system, the Western Union representative responded, “I can’t answer that.”
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [8736:8951] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

In order to prove that a defendant has used, or caused the use of, interstate wire communications, the government must show that the defendant knew, or that it was foreseeable to him that, an interstate wire communication would result.
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [4333:4568] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

However, when the individual does not personally communicate, but instead causes another to communicate via interstate wires, foreseeability is not always so readily apparent.
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [5210:5385] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

There is not sufficient evidence in this record upon which a trier of fact could find beyond a reasonable doubt that it was foreseeable to Brumley or Cely that their actions would cause the Western Union agents to make interstate wire communications.
Source: docroot/ir/caselaw/f3d_59.jsonl#/f3d/59/0517-01; Unicode character offsets [9123:9373] (end exclusive); SHA-256 ee745115d6bb844b125eed9c1f91c4dcb191bdf422c551308bf7e2642cc72f3a.

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

Court interpretations recorded from this case